Droit international général

This post was written by Paul Lorenz Eichmüller, University of Vienna.

Austrian civil procedure law contains a provision that requires foreign nationals bringing a claim in Austrian courts to provide security for the legal costs incurred by the defendant in case the claim should not be successful. However, as this would clearly violate the non-discrimination principle of what is today Article 18 of the TFEU, the CJEU considered a similar provision under German Law inapplicable as early as 1997 (C-323/95, Hayes/Kronenberger GmbH). Now that the UK is not a Member State of the EU anymore, Article 18 TFEU can no longer be applied in that respect. After this issue has already arisen in Germany (which has also been discussed on this blog), there has also been another case in Austria – yet, with a different outcome.

The Duty to Provide Security for Costs

Pursuant to § 57 of the Austrian Civil Procedure Code (ACPC), any foreign claimant is required to provide security for the costs in civil proceedings brought before Austrian courts if the defendant asks for the payment of such a security. While these rules have become irrelevant within Europe due to EU law, they hit with full force when defendants from third countries are concerned – at least as long as there is no international treaty prohibiting security deposits for costs.

However, in accordance with the ratio behind this rule – which is to prevent that the defendant wins the case in Austria but, due to a lack of enforceability, cannot even recover their own legal costs – there are further exceptions in which a foreign claimant is not obliged to provide security for costs contained in para 2 of the provision. These are: the claimant’s habitual residence is in Austria, the Austrian (cost) decision is enforceable in the state of the claimant’s habitual residence, or the claimant has (sufficient) immovable property in Austria to cover the costs.

International Treaties Prohibiting Security Deposits

There is no international treaty prescribing that a security deposit may not be required that was applicable in the present case. One might in this regard think e.g., of the Hague Convention on Civil Procedure, which, however, the UK has never signed. For those remembering the previous German decision, the European Convention on Establishment might come to mind. After all, the application of its Article 9 – prohibiting cost deposits from member state nationals – only failed because the rules of the convention only apply to natural and not to legal persons. As the Austrian case concerned a natural person as a claimant, this could have seemed like a solution – however, Austria has only signed, but not ratified said convention and therefore, its application also fails.

Finally, there is also a bilateral Austro-British Convention regarding proceedings in Civil and Commercial Matters from 1931, Article 11 of which prescribes that British citizens resident in Austria “shall not be compelled to give security for costs in any case where a subject of [Austria] would not be so compelled”. As the claimant did not reside in Austria, this convention was inapplicable in the present case as well.

Recognition of the Austrian (Cost) Decision as a Way Out

As there is no prohibition on security deposits in international treaties, the issue was whether any of the exceptions of § 57 para 2 ACPC apply. As the other exceptions were clearly not applicable, the only question that remained was whether there is an international treaty providing for the recognition of a possible Austrian cost decision in the UK (the claimant’s habitual residence).

With the UK having left the EU, the core legal acts on the recognition and enforcement of Austrian judgments in the UK, namely the Brussels Ibis Regulation and the Lugano Convention, are no longer applicable. Similarly, the UK government does not consider itself bound by the Brussels Convention anymore (there has been considerable discussion about this matter on this blog). It might therefore seem that there is no legal basis that would guarantee the enforcement of an Austrian cost award in the UK.

However, as rightly identified by the Austrian Supreme Court, the parties had concluded an exclusive choice-of-court agreement in favour of the Austrian courts, which would make a judgment (including its cost award) enforceable by the means of the Hague Choice of Court Convention. While the UK is no longer bound by the Convention by virtue of being an EU Member State, it acceded to the Convention on 28 September 2020 in its own right, providing that the convention would apply without interruption (see here).

As a judgment with a cost award would be enforceable in the UK due to the applicability of the Hague Choice of Court Convention, there was thus no need to demand a security deposit for the costs from the British claimant. While the defendant submitted that there was no precedent in the UK on the application of the convention and that it was therefore unsure whether a cost award would be enforced, the Supreme Court considered that there was no indication that UK courts would breach their obligation under public international law. Thus, no security deposit for costs was required.

Conclusion

After many cases seen so far, the case decided by the Austrian Supreme Court shows once more how Brexit has made international litigation in relation to the UK so much more difficult. While the Hague Choice of Court Convention provided for a solution in the case at hand, this will only apply if there is an exclusive choice of court agreement. In all other cases, British claimants not resident in Austria will have to provide a security deposit if they want to bring a claim in Austrian courts – making cross-border litigation again somewhat more tedious. It remains to be seen whether the Hague Judgments Convention will at a later point in time alleviate this problem, but as neither the UK nor the EU have even signed the convention yet, it is still a long way until we will experience any of its effects.

On 1 July 2022, the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations entered into force for the Republic of Ecuador.

Source: https://www.hcch.net/en/news-archive/details/?varevent=864

On 22 June 2022, the Republic of the Philippines ratified the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for the Philippines on 1 October 2022.

Source: https://www.hcch.net/en/news-archive/details/?varevent=862

Just a few days have passed since the team of the EAPIL blog welcomed Erik Sinander as a new editor. The time has come, already, for a new welcome post, this time for Martina Mantovani: we are glad to have you onboard, Martina!

Martina, who has authored some guest posts for the blog in the past (see here and here), currently works as a Legal Assistant at the Court of Justice of the European Union and is a PhD Candidate in Private International Law at the University of Paris Panthéon-Assas.

Her first post was out a few minutes ago. It can be found here.

On 19 May 2022, the CJEU rendered an inadmissibility order in case C-722/21, Frontera Capital. The request for a preliminary ruling originated from a Spanish notary, who delivered a European order for payment (EOP) under Regulation 1896/2006. She relied, for that purpose, on the parallel competence vested on Spanish notaries for the delivery of domestic orders for payment (Articles 70-71 of the Spanish law on notaries). The notary in question was subsequently sanctioned by the Dirección General de los Registros y del Notariado for having issued the EOP ultra vires. In her opinion, however, all the conditions set out by Regulation 1896/2006 were satisfied (§ 5 of the inadmissibility order), hence the referral to the CJEU.

While being inadmissible on a number of grounds (i.e., the lack of an actual dispute in the main proceedings and the doubtful characterisation of the referring authority as a ‘court or tribunal’ of a Member State under Article 267 TFUE: cf § 14 and § 16 of the order), this case confirms that the interaction between notaries, theirs competences under domestic law and the EU private international law (EU PIL) remains, to the present days, problematic.

This finding is further evidenced by the number of preliminary questions raised on this issue (nine in total) since 2015, ie the year when Pula Parking and Zulfikarpašić brought the relationship between notaries and EU PIL on the table of the Luxembourg judge for the first time.

Read in conjunction with this past case law, Frontera Capital provides the opportunity for a broader discussion on some recurrent obstacles that hinder the smooth interplay between EU PIL Regulations – particularly the statutory definitions they set out – and national laws, especially in the subject matters where the intervention of legal professionals other than judges is more common at the comparative law level.

Five Years of CJEU Case Law

Cross-border cases are nothing new to European notaries, who are generally well versed in PIL and eager supporters of its further harmonisation by the EU (see, for example, points 3, 4 and 5 of the Proposal of the Notaries of Europe for the Conference on the Future of Europe). The requests for preliminary rulings thus far decided by the CJEU and involving, more or less directly, these professionals can be broken down into three main categories.

In the field of civil and commercial matters, the referring courts in Pula Parking and Zulfikarpašić – concerning, respectively, the Brussels I bis and the EEO Regulation – asked for clarifications regarding the status of Croatian notaries as ‘courts’ for the purposes of those Regulations, in cases where these professionals were acting in the exercise of the powers conferred to them under domestic law with respect to the delivery of executive titles based on ‘trustworthy documents’. A similar question was raised – directly by the seized notary – in the more recent case Frontera Capital. As I argued elsewhere, the choice of the Spanish legislator as concerns the creation of a monitorio notarial was liable to create Pula Parking-alike scenarios. And, in fact, while the Spanish notary just asked if the EOP Regulation was correctly applied in the specific case, her question could be rephrased as concerning its own status as ‘court’ under Article 5 n 3 of the EOP Regulation, given that such characterization would enable a Spanish notary to issue EOPs in compliance with this instrument (as it is the case for Hungarian notaries).

A second group of cases concern the Succession Regulation, but raise similar questions. Cases WB and EE requested, inter alia,  an interpretation of its Article 3(2), thus prompting the ECJ to address both the ‘procedural preconditions’ and the substance of the definition of court set out by that provision, having specific regards to the tasks entrusted to Polish and Lithuanian notaries. More recently, case OKR also raised several questions concerning the interpretation of Regulation 650/2012. Just like Frontera Capital, the case was nonetheless deemed inadmissible because the referral came directly from a (Polish) notary, lacking the requirements set by Article 267 TFEU (as summarized by Dorsch Consult) to qualify as ‘national court or tribunal’ for the purposes of that provision.

A final group of issues, which is beyond the scope of this blogpost, originates from the joined cases C-267/19 and C-323/19, requiring the CJEU to assess again the Croatian legislation on the notarial competence in debt collection based on trustworthy documents. Here, the CJEU rejected the argument whereby the finding in Pula Parking and Zulfikarpašić, that is inapplicability of the EU uniform regimes on recognition and enforcement of judgments to Croatian notarial deeds, coupled by the non inter partes character of the Croatian procedure, could amount to an infringement of the principle of non-discrimination (Article 18 TFEU) and the right to a fair trial (Article 47 of the Charter). Similar arguments were advanced (and rejected) in case C-234/19.

Apart from this last group of cases – that are illustrative of the limited scrutiny the CJEU can exercise on domestic justice reforms – all the above mentioned preliminary rulings call into question the possibility of characterizing notaries as ‘courts’, for the purposes of either Art. 267 TFEU or specific EU PIL instruments (or both).

Notaries as Courts: Recurrent Difficulties

The difficulties thus far encountered in classifying notaries as ‘courts’ stem from the friction between the uniform statutory definitions (if any) of ‘court’ adopted by EU law and the ever-changing legal environment of 27 Member States, who lack a common understanding of the notarial profession (cf, on this point, the Specific Study of the CEPEJ on the Legal Professions: Notaries prepared by the CNUE)

On the one side, in the attempt of unburdening an ailing court system, the procedural laws of Member States tend to be inspired by ‘local’ policy choices, based on a culturally-embedded understanding of the role of each legal profession within the broader justice machinery. On the other side, however, EU law remains largely anchored to a more traditional (and uniform) concept of ‘court’, grounded in the exercise of ‘judicial functions’. For this reason, although notaries are, at present, often called to perform their duties in matters that fall into the scope of application of EU PIL Regulations, they are not, in most cases, entitled to initiate a direct dialogue with the CJEU thorough Art. 267 TFEU, when they harbour doubts as concerns the correct interpretation of their provisions or their own status as ‘courts’ under one of said instruments. Regarding this last issue, the problem seems exacerbated by the regulatory approach adopted by the EU legislator with respect to the statutory definitions of court or tribunal under the different EU PIL Regulations.

The (In)Direct Dialogue with Luxembourg

Cases such as OKR and Frontera Capital prove that notaries may feel the need to establish a direct communication channel with Luxembourg under Art. 267 TFEU when they harbour doubts as to the correct interpretation of a provision of EU PIL. And this not just for the sake of the proper application of EU law, but also to ensure the correct performance of their duties and avoid incurring in professional liability or sanctions. In this respect, however, the stance taken by the CJEU is quite clear and well-established: to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, ‘it must be determined … whether [the referring body] is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’ (OKR, § 23).

In OKR, the CJEU deemed that, in the proceedings at stake in that case, the notary was not required to decide a legal dispute (§ 24), insofar as (s)he did not take decision of a judicial nature ‘either when he or she confirms his or her refusal decision or when he or she considers the complaint to be well founded’ (OKR, § 28). Nonetheless, the Court placed a special emphasis put on ‘the specific capacity’ and ‘the particular legal context’ in which the referring authority operates (OKR, § 23), which suggests that the question as to whether a notary could be considered a ‘court or tribunal’ of a Member State for the purposes of Art. 267 TFEU should be answered on a case-by-case basis, having due regard of the specific features of the notarial proceedings at issue.

In any case, it should not be too hastily concluded that the eventual exclusion of notaries from the procedure set out by Art. 267 TFEU is liable to hamper the uniform interpretation of EU law. According to the CJEU, the existence of complaints before courts against notarial decisions ensures, on any view, the effectiveness of the mechanism of the reference for a preliminary ruling and the achievement of its objective (cf. § 33 OKR). And, in fact, this is what happened after the OKR order, where one of the parties appealed the notarial order before a court, who then referred a new request for preliminary ruling to the Luxembourg Court (case C-21/22, pending).

The Plethora of Statutory Definitions of ‘Court’ in EU PIL

The second recurrent issue emerging from the CJEU case law concerns the characterisation of notaries as ‘courts’ under specific instruments of EU PIL. In this regard, the CJEU has explicitly acknowledged that the definitions retained by EU PIL Regulations may be broader than that developed under Art. 267 TFEU (§ 31 OKR). This means, in practice, that a notary could qualify as ‘a court’ for the purposes of EU PIL, without nonetheless be entitled to refer a request for preliminary ruling to the CJEU.

While a comprehensive analysis of the definitions of court set out by EU PIL Regulations would be beyond the scope of this blogpost, this table may be a useful starting point for identifying some very general trends in the drafting techniques used for this purpose.

Firstly, it is worth remarking that there is no ‘one-size-fits-all’ definition of ‘court’. Rather, definitions tend to be context-dependent (as evidenced by the Recitals of the Regulations dealing with family law, successions and insolvency) or even implied (as it was the case under the 1968 Brussels Convention and the Brussels I Regulation). Such definitions tend to be more sophisticated in matters where the intervention of authorities other than courts is more established (eg family and succession law).

Secondly, and relatedly, there is no single approach to the drafting and structuring of the definitions of court. Rather, current definitions make use of at least 5 different drafting techniques, including:

(a) the ad hoc assimilation, by the EU legislator, of specific non-judicial bodies to ‘courts’ in the main body of the Regulation, without nonetheless providing a ‘general’ definition thereof (e.g. Article 3 Reg. Brussels I bis and Article 4(7) of the EEO Regulation);

(b) the ‘open renvoi’ to domestic legal systems, based on sheer functional equivalence (i.e., not accompanied either by a uniform general definition of ‘court’ or by an obligation of notification to the Commission: e.g. Article 62 of the 2007 Lugano Convention and Article 2(2)(1) of the Brussels II ter , which follows in the footsteps of its predecessors: cf § 34 of the Opinion of AG Collins in C-646/20).

(c) the ‘conditional renvoi’ to the designation by Member States, where the domestic appointment of an entity as ‘court’ must be coupled by the notification to the Commission (e.g. Articles 5 n. 3 and 79 of the EPO Regulation);

(d) the establishment of a core-definition, setting out minimum requirements (e.g. the power to ‘take decisions’) but otherwise relying entirely on national laws (e.g. Insolvency Regulations).

(e) the establishment of well-rounded general definitions, complemented by detailed Recitals and accompanied by an obligation of notification to the Commission (most of the instruments dealing with family law and successions).

Thirdly, owing to the variety of drafting techniques used by the EU legislator, these definitions present variable degrees of flexibility and, therefore, a varying aptitude for prompt adaptability to domestic judicial reforms. In fact, under the approach sub a), any change to the scope of the definition of ‘court’, aimed at the inclusion of domestic notaries therein, cannot by attained based on analogical reasoning (see again here) and would probably require a legislative amendment of the main body of the concerned EU Regulation(s). This approach is indisputably more cumbersome than a sheer change to the Annexes (e.g. Art. 2(2) of Regulation 4/2009) or to the lists established by the Commission and made public through the European Judicial Network.

Finally, while the definitions set out in the field of family and succession law appear strikingly homogeneous as regards both their substantive contents and their increasing sophistication, including the explicit acknowledgment of the role played by notaries in those domains, the field of civil and commercial matters stands out of its sectoral inhomogeneity and remarkable methodological fragmentation. Of the 8 EU PIL instruments covering this domain, 3 (Brussels Convention, Brussels I Regulation; EAPO Regulation) are completely silent on the matter of knowing what constitutes ‘a court or tribunal’; 2 (Brussels I bis and the EEO Regulations) follow the approach sub a); 1 (Lugano Convention) adopts the approach sub b); 2 opt for the approach sub c) (the EPO and possibly the Small Claims Regulation). This lack of uniformity may unnecessarily complicate the application of those Regulations in practice.  

Lingering Doubts

In the light of the above, it is not surprising that the characterization of notaries as courts has posed important challenges in many concrete cases.  Nonetheless, the identification of what constitutes ‘a court’ for the purposes of EU PIL should be easy (or, at list easier) in the instruments that set out an obligation of notification to the Commission, called to draw up a list of such authorities that complements the statutory definition eventually established the legislator.

In this respect, the case WB has shed light on the normative value of such lists. Therein, the CJEU held that the notifications to the Commission, and the lists established on that basis, ‘creat[e] a presumption that the national authorities declared [therein] constitute ‘courts’’. Nonetheless, ‘the fact that a national authority has not been mentioned in such a notification cannot, per se, be sufficient for it to be concluded that that authority does not satisfy the conditions set out in Article 3(2) [of the Succession Regulation]’(emphasis added).

It is worth stressing that, in WB, the CJEU’s ruling finds a solid ground in the letter of a Regulation providing for one of the most sophisticate provisions on the meaning of ‘court’ to be found in EU PIL. Art. 3(2) of the Succession Regulation sets out a well-defined general definition, which is not only accompanied by specific and uniform minimum requirements, but also explicitly assimilates notaries to courts when they exercise ‘judicial functions’. These should be understood, in essence, as referring to the ‘exercise of decision making power’, irrespective of the (contentious or non-contentious) nature of the proceedings within which it takes place. Therefore, ‘an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes’, that is to ‘rule on its own motion on possible points of contention between the parties’ (judgment in WB, § 55-56). In turn, this ‘exercise of decision-making power’ is what justifies the requirement of compliance with fundamental procedural principles (Opinion in WB, § 78).

In the post-WB era, the real question remains as to whether, and to what extent, the CJEU’s finding on the normative value of the lists established by the Commission is transposable to other EU PIL instruments, such as the EPO Regulation, where the obligation of notification is not coupled by an explicit statutory definition of ‘court’. Therein, there are no minimum requirementsagainst which the status of a non-judicial authority can be assessed in case it does not feature in the lists established by the Commission or by the concerned Member State. This was indeed the most interesting question raised by Frontera Capital: Article 5 n. 3 of the EPO Regulation extends the status of court to ‘any authority in a Member State with competence regarding’ not only ‘European orders for payment’, but also ‘any other related matters’. Therein, the real issue would have been as to whether a parallel competence regarding domestic orders for payment can be considered a ‘matter related to EOPs’, thus bringing Spanish notaries under the umbrella of the definition under Article 5 n. 3, despite the lack of formal communication to the Commission.

Future Outlooks

What happens if a notary does not fulfil the requirements for a characterisation as ‘court’? Extant CJEU case law, especially the rulings under the Succession Regulation, clarify that, in that case, the notary is not bound by the uniform rules of jurisdiction, and the resulting notarial deed won’t circulate in other Member States as a ‘judgment’. It could, however, circulate in other Member States under the regime for authentic instruments, if such deed corresponds to the uniform definition thereof.

As opposed to the definitions of ‘courts’, the notion of ‘authentic instrument’ profits from a remarkable uniformity across the several EU PIL Regulations, the baseline of these definitions being always the Unibank judgment, rendered by the CJEU under the 1968 Brussels Convention. Civil law notaries are, in most cases, among the authorities empowered to confer the character of ‘authenticity’ (see Recitals 31 of Regulations 2016/1103 and 2016/1104).

The CJEU has therefore readily vested the status of ‘authentic document’ upon a ‘deed of certification of succession, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary’ (WB, § 66, emphasis added) and upon a ‘national certificate of succession’, by which the notary ‘establish[es] the undisputed subjective rights of, and the legally relevant facts relating to, natural and legal persons, [thereby] protect[ing] the legal interests of those persons and of the State’ (EE § 52, emphasis added).

Consent, expressed through the unanimous request of all parties or through the idea of undisputed rights, lies at the core of the notarial competence regarding authentic instruments, just as the notion of dispute is the benchmark against which the ‘exercise of judicial function’ by the notary shall be assessed. While being apparently clear-cut, the distinction between consent and dispute could become remarkably blurred with respect to certain legal assessments entrusted to the notaries, where this professional is called to adjudicate on rights that are only ‘presumptively undisputed’, at the unilateral request of one of the parties. Reference is made, primarily but nor exclusively, to the delivery of orders for payment by the notary based on documentary evidence unilaterally supplied by the creditor, and without the prior hearing of the defendant. In such cases, the distinction between dispute and consent does not provide a definite answer to the question as to whether such order for payments, lacking a prompt challenge by the debtor, could eventually circulate intra-EU as authentic instruments.

The negative answer finds support in another element of the European definition thereof, that is the requirement whereby an authentic instrument shall be ‘formally drawn up’ as such in the Member State of origin. This open renvoi to domestic formalities renders the EU definition of authentic instrument only ‘semi-uniform’, insofar as EU law nowhere explains what it takes for an authentic instrument to be ‘formally drawn up’ as such in the issuing Member State. In one of the few academic works that approach this topic from a PIL perspective, late Professor Fitchen described the ‘basic steps required for the drawing-up of a notarial authentic instrument’ as follows (pp. 28-29):

The notary will first ensure that each party is fully aware of the nature and meaning of the proposed transaction; he will also impartially advise each party upon the available options by which the desired transaction could be accomplished. After this, the notary will draft an appropriate legal document. … Having prepared the document in draft, the notary will then read it aloud to the parties. Assuming each party then indicates that he understands the transaction and that he still wishes to proceed with it, the notary will then invite [the parties] to sign the document. At this stage the document is still a private document. The private document only becomes an authentic instrument/public document once the notary, having declared upon it that he has read it to the parties, that they have expressly approved all their declarations within it, and that they have then signed it ‘before’ him, finally draws it up as an authentic instrument by signing it himself then formally applying his notarial seal to the document as a notary of his civil law legal system.

Evidently, these formal or procedural requirements are strictly linked to, and reinforce, the idea of unanimous consent that underpins authentic instruments and should be seen as an integral part of the uniform definitions established by EU Regulations. It is highly doubtful that such requirements could be deemed satisfied with respect to notarial documents that are, at once, issued at the unilateral request of one of the parties and based on the sheer acquiescence of the party who would suffer the detrimental consequences stemming therefrom. 

Conventions & Instruments

On 4 June 2022, the HCCH 1961 Apostille Convention entered into force for Indonesia. The Convention currently has 122 Contracting Parties. More information is available here.

On 22 June 2022,  the Philippines deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With this ratification, 44 States and the European Union are now bound by the Child Support Convention. It will enter into force for the Philippines on 1 October 2022. More information is available here.

 

Meetings & Events

On 1 and 2 June, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the HCCH 1980 Child Abduction Convention in partnership with the Judicial School of Bolivia.

On 23 and 24 June, the HCCH participated in the Conference on Conflicts of Jurisdiction organised by the Journal of Private International Law and the Singapore Management University. More information is available here.

On 30 June and 1 July, the HCCH participated in the Regional Forum “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, organised by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Center for International Legal Cooperation. More information is available here.

 

Upcoming Events

The webinar “Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions”, organised in partnership with the Asian Business Law Institute (ABLI), will be held on 27 July 2022. More information is available here.

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On July 14, 2022 an online seminar jointly organized by the Universities of Bologna, Milan and Verona (Italy) will provide a comparative perspective on the recent development of the setting up of specialized courts dealing with international commercial disputes.

All the information in the official poster.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP. It is the third of a series of posts on the proposed codification of French PIL (previous posts discussed the issues of renvoi and foreign law).

The French draft code of private international law innovates in several areas. The recognition of marriages celebrated abroad is one of them. The draft code breaks with the choice of law method and relies instead on the recognition method. This is the purpose of Article 45.

It is worded as follows:

Unless the present sub-section provides otherwise, a marriage celebrated in a foreign State in accordance with the law of that State shall be recognised in France, subject to its conformity with international public policy and if it does not result in an evasion of [French] law (fraude).

Where, at the time of the celebration of the marriage, one of the spouses was already in a marriage that has not yet been dissolved, the marriage is not recognised:

– if one of the spouses is of French nationality, even if he or she also has the nationality of another State; or

– if the first marriage was celebrated with a spouse whose national law prohibits it.

However, a spouse who has legitimately believed in the validity of his or her marriage may avail himself or herself in France of the effects attached to the status of spouse, insofar as the effects invoked are compatible with the requirements of international public policy. (my translation)

In the French original:

Si la présente sous-section n’en dispose autrement le mariage célébré dans un État étranger en conformité avec le droit de cet État est reconnu en France, sous réserve de sa conformité à l’ordre public international et de l’absence de fraude.

Lorsqu’au moment de la célébration du mariage l’un des époux était déjà engagé dans les liens d’un mariage non encore dissous, ce mariage n’est pas reconnu :

– si l’un des époux est de nationalité française, même s’il a également la nationalité d’un autre État ; ou

– si le premier mariage a été célébré avec un époux dont la loi nationale le prohibe.

Toutefois, l’époux qui a légitimement cru en la validité de son mariage peut se prévaloir en France des effets attachés à la qualité de conjoint, dans la mesure où les effets invoqués sont compatibles avec les exigences de l’ordre public international.

Assessment of the Recognition Methodology

The authors of the draft code have thus decided not to use the choice of law method to assess the validity of a marriage celebrated abroad.

This solution must be approved. It was expected. While it is logical to use a choice of law  rule to determine the conditions to be met by a marriage to be celebrated in France (Article 171-1 of the Civil Code and Article 44 of the draft), it is surprising that this same choice of law rule should be used to assess the validity of a marriage celebrated abroad, perhaps many years ago, as Article 171-1 of the Civil Code does today. The situation gives rise rather to a conflict of authorities than a conflict of laws. One could also envisage treating the marriage certificate, which is a foreign public document, as a foreign judicial decision. More concretely, it would be a question of assessing the effectiveness of a marriage like that of a registered partnership (Article 515-7-1 of the Civil Code provides at the present time for the application of the lex auctoris) or like that of a divorce decision (which, as a decision rendered in matters of personal status, is recognised de plano (automatically).

Thinking for marriages celebrated abroad in terms of recognition is not new. The solution is already that of Article 9 of the Hague Convention of 14 March 1978 on the Celebration and Recognition of the Validity of Marriages or that of Article 45 of the Swiss Private International Law Act.

The advantages of the proposed solution are numerous. It is compatible with the plurality of family models but also with the diversity of nationalities of those concerned. It ensures the continuity of personal status and thus the respect of the parties’ expectations. It is consistent with the solution adopted for registered partnerships. Moreover, the draft Code models the rule for the recognition of registered partnerships (Article 56 paragraph 1 of the draft) on that for marriage.

Its disadvantages are rare. Civil status shopping is not to be feared as recognition is not automatic and there are grounds for non-recognition. Under Article 11 of 1978 Hague Convention on marriages, polygamy, endogamy, age and lack of consent may justify a refusal of recognition. Likewise, Article 45 of the draft reserves the right to refuse recognition on the grounds of breach of public policy and evasion of law. It is not known in which cases courts may find that the marriage was an attempt to evade the application of the law, but one could imagine that the absence of any link between the spouses and the place of celebration could trigger the exception, even if this does not correspond to current positive law, which admits the validity of marriages celebrated in Las Vegas. More certainly, evasion of law will prevent the recognition of a marriage celebrated without matrimonial intention (but this is directly provided for by Article 46, see below). The content of public policy is, in part, clarified. Indeed, Article 45 contains provisions specific to polygamy. In this case, the application of the national law of the spouses in matters of personal status resurfaces. Polygamous marriage is not recognised if one of the spouses is a French national (regardless of whether he or she possesses another nationality) or if the marriage was concluded with a spouse whose national law prohibits this type of marriage.  In the latter case, the hypothesis of dual nationality is not envisaged, which will inevitably raise difficulties. Is it justified to protect the French dual-national spouse against a subsequent polygamous marriage by giving precedence to the nationality of the forum and not a Belgian dual-national spouse? This is questionable.

Limited Scope of the Recognition Methodology

The scope of the method of recognition is partially limited by Articles 46, 48 and 50 of the draft Code, which largely reiterate the current solutions.

The method of recognition is first of all limited by the method of substantive rules. Article 46 specifies that, whatever the State of celebration and whatever the applicable law, marriage requires the free consent and matrimonial intention of each spouse. Here we find the trace of the statutory intervention in the private international law of marriage in 2014 according to which, whatever the applicable personal law, marriage requires the consent of the spouses, within the meaning of Articles 146 and 180 para. 1 of the Civil Code. This requirement of free consent and matrimonial intention can also be seen as specifying the content of international public policy on marriage. In order not to render Article 45 meaningless, it is important that the requirement be assessed in a factual manner (which is logical, see B. Audit et L. d’Avout, Droit international privé, LGDJ 2019, n° 770).

The recognition method is also limited by Article 48, which is the only provision in a section dedicated to ‘Rules of form and competent authority’.

Article 48, which is intended to apply to all marriages, whether celebrated in France or abroad, states that a marriage is validly celebrated if it has been celebrated in accordance with the formalities laid down by the law of the State on the territory of which the celebration took place. It is difficult to understand the usefulness of this provision. In the same way that, in matters of recognition of judgments, it is not verified that the foreign court has complied with its own rules of procedure, it seems inappropriate to verify that the foreign authority that celebrated the marriage complied with its own rules of form. The possibility of denying recognition to a marriage on the grounds of evasion of law or contravention of public policy should make it possible to avoid giving effect to a marriage that has been celebrated in shocking conditions.  Article 48 seems then superfluous.

Finally, Article 50 takes up the current solutions for marriages celebrated abroad involving a French person. By requiring compliance with Articles 146-1, 171-1 to 171-9 of the Civil Code (mainly these provisions set an obligation for the French spouse to be present at the marriage, an interview intended to fight against marriages of convenience with the possibility of the public prosecutor’s office to oppose the celebration of the marriage and then the transcription of the record), it also limits the possibilities for recognition of marriages celebrated abroad when a French national is involved. In methodological terms, Article 50 does not call into question the principle of recognition, but it does provide a stricter framework.

The articulation of Articles 46, 48 and 50 with the principle of recognition of marriages celebrated abroad raises questions. Should it be ensured that the conditions they set out are met before the marriage is given effect? An affirmative answer would render the principle of recognition meaningless. It would be more coherent if, as in the case of recognition of judgments, verification is only carried out if the validity of a foreign marriage is challenged.

American Society of International Law Private International Law Interest Group is pleased to publish the newest Newsletter and Commentaries on Private International Law (Vol. 5, Issue 1) on PILIG webpage. The primary purpose of our Newsletter is to communicate global news on PIL. It attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules, and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

 

This issue has three sections. Section one contains Highlights on cultural heritage protection and applicable law in the US and recognition and enforcement of foreign judgments in China. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America. Section Three overviews global development.

Aldricus – Rambut memerlukan perawatan agar bisa tumbuh sehat dan tentunya memberikan rasa percaya diri. Selain menggunakan sampo terbaik, perlu untuk melakukan perawatan dengan menggunakan conditioner. Ada kandungan urang-aring yang bagus untuk rambut. Berikut manfaat urang aring untuk rambut yang jarang diketahui untuk perawatan rambut.

1. Mengatasi Ketombe

Buat yang memiliki ketombe bisa mengatasinya dengan urang-aring yang ada kandungan antimikroba dan antijamur. Manfaat antiradang ini akan mencegah terjadinya iritasi pada bagian kulit kepala dan membantu meningkatkan sirkulasi darah sehingga mencegah ketombe.

2. Mencegah Munculnya Uban

Urang-aring juga bermanfaat untuk mencegah munculnya uban. Kandungan urang-aring bekerja memperlambat tumbuhnya uban karena adanya kemampuan menghitamkan minyak, sehingga menjadi lebih gelap. Tidak akan tumbuh uban di usia dini dan warna rambut akan terjaga kehitamannya.

3. Mengatasi Peradangan Kulit

Buat Anda yang mudah mengalami radang pada kulit kepala bisa menggunakan urang-aring. Biasanya ada di dalam sampo dan conditioner. Jadi, masalah kulit seperti adanya jerawat bisa diatasi dengan mudah. Peradangan pada kulit kepala bisa membuat masalah rambut semakin rusak jika tidak segera diatasi.

4. Meningkatkan Kesuburan Rambut

Rambut yang tipis sering menjadi masalah dan berupaya untuk melebatkan rambut. Manfaat urang aring untuk rambut ini akan membuat Anda mendapatkan rambut yang lebat dan sehat. Di mana folikel rambut akan dirangsang dan memicu pertumbuhan rambut menjadi lebih subur. Masalah kepala botak di usia muda juga akan tercegah dengan optimal.

5.     Mencegah Kerontokan

Rambut rontok membuat Anda kesal karena rambut menjadi tipis. Kerontokkan rambut ini menandakan adanya kerusakan. Di mana kerusakan ini akan teratasi dengan meningkat pertumbuhan folikel rambut. Urang-aring yang kaya vitamin E akan bekerja untuk melawan bahaya radikal bebas yang bisa membuat pertumbuhan rambut terhambat.

Manfaat urang aring untuk rambut bisa didapatkan dari berbagai produk terbaik dengan menggunakan sampo atau pun conditioner. Lakukan perawatan secara rutin setiap harinya. Anda bisa berbelanja produk perawatan sesuai dengan kondisi rambut agar bisa mendapatkan rambut sehat dan tumbuh subur. Produk terbaik tentunya sudah memiliki kualitas terjamin.

The post 5 Manfaat Urang Aring untuk Rambut yang Jarang Diketahui appeared first on Aldri Blog.

Tomorrow (3 July 2022) is your last chance to register for the online summer course 2022 of the Hague Academy of International Law (both public and private international law). Click here.

More information is available here. The poster is available here.

The summer course 2022 will be offered this year both on-site in The Hague and online, which is great news given the disruptions caused by the covid-19 pandemic the previous years.

When prof Bookman asked my input on Celsius’ choice of court and governing law’s clause in its GTCs, I was otherwise engaged. Subsequently I waited with an answer for I used the issue for an exam question. – so here is my primer.

Celsius are one of the leading crypto currencies exchanges (future readers may not be familiar: crypto currencies were an early 21st century Ponzi scheme).

The question I put to the students, was:  A fellow academic and practitioner from the US asks you how clause 33 of the standard Celsius contract, copied below, would be received in the EU. Celsius are one of the world’s leading crypto currencies exchanges.

How do you respond to this question? Argue with reference inter alia to relevant CJEU case-law.

Students had two pages to answer. I did not specify Celsius’ domicile. This is what I expect to be included in the reply. Both for jurisdiction and for there is a clear distinction between the B2B and B2C scenario.

Re: B2C: For the contract to be a true ‘consumer’ contract within the meaning of Brussels Ia, Celsius would have had to target their activities at the consumer’s Member State etc.: CJEU Peil and Reliantco are good pointers, as are Ramona Ang and Khalifeh v Blom Bank. Whether Celsius are domiciled in the EU is of no consequence for the consumer section to be engaged. At the jurisdictional level, the choice of court clause would have no consequence (A19 BIa), and the consumer would be able to sue Celsius either in the consumer’s EU domicile, or in Celsius’ EU domicile if it has one. Celsius would only be able to sue in the consumer’s domicile. Articles 33-34 BIa lis pendens rules would not be engaged.

At the applicable law level, the choice for New York law would stand, however mandatory law of the consumer’s habitual residence (which would include transposition of EU consumer law) would trump any conflicting provisions (A6(1) and (2) Rome I).

Re: B2B or indeed a B2C contract which does not trigger the consumer section, the picture would be quite different. Here, whether Celsius as contracting partner has a domicile in the EU, does matter.

If there is such domicile, then at the level of jurisdiction, the EU based party is likely to seize the A4 domicile court, potentially also seeking out a forum contractus if the currency services were to be provided elsewhere than in the place of Celsius’ domicile. That is where Celsius, had it seized an ex-EU court first, then might seek application of A33-34. For this it may come to regret having included hybrid choice of court: recital 24(2)’s reference to the ex-EU court having exclusive jurisdiction arguably does not apply to hybrid choice of court.

Were Celsius to sue the other party in an EU court first (taking ‘any applicable jurisdiction’ at its face value and understanding it as including EU courts), the other party is likely to raise the invalidity of the hybrid choice of court. This is where BIa knickers will get into their proverbial twist: for recital 20’s lex fori prorogati’s instruction as lex casae for the validity of the clause, only refers to ‘a court or courts of a Member State’. Celsius could of course chose to ignore choice of court (implicitly accepting its invalidity) and seize the A4 court of the EU counterparty.

At the level of applicable law, choice for New York law will in any case stand in this scenario, with however A3(4) Rome I’s rule for ‘purely EU’ contracts kicking in, and potentially Article 9 Rome I’s lois de police.

If there is no EU Celsius domicile, Celsius is unlikely to sue in the EU (for it risks having an EU court apply EU banking, finance etc law as mandatory law) however if it does, it would either do so on the basis of A4 domicile jurisdiction, or invoking, as above, the ‘any applicable jurisdiction’ instruction in the hybrid choice of court. Only A9 Rome I could then marginally upset choice of NY law.

Finally, assuming Celsius were to sue the consumer outside the EU, and were to seek enforcement of the judgment in an EU Member State, this would engage the Member States’ residual rules on recognition and enforcement.

Quite a set of variables in the end, and I would be much happy to hear others’ thoughts.

Marking me will look out for core B2B /B2C and domicile considerations.

Geert.

 

I was going to ask why the dispute has to be in the US, and point out that the class action and class arb ban might not be enforceable elsewhere, but then I saw the NY choice of law and choice of forum clauses, which presumably are enforceable, rt?@Tarheel_Lawprof @GAVClaw pic.twitter.com/vq6Rx3L6Np

— Pamela Bookman (@PamelaBookman) June 15, 2022

 

Elena D’Alessandro and Fernando Gascón Inchausti are the editors of The European Account Preservation Order – A Commentary on Regulation (EU) No 655/2014. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

This comprehensive Commentary provides article-by-article exploration of EU Regulation 655/2014, analysing and outlining in a straightforward manner the steps that lawyers, businesses and banks can take when involved in debt recovery. It offers a detailed discussion of national practice and legislation in order to provide context and a deeper understanding of the complex difficulties surrounding the procedural system created by the European Account Preservation Order (EAPO) Regulation.

The list of authors include Caterina Benini, Silvana Dalla Bontà, Katharina Lugani, Martina Mantovani, Elena Alina Ontanu, Guillaume Payan, Pilar Peiteado Mariscal, Carlos Santaló Goris, Guillermo Schumann Barragán, Elisabetta Silvestri, Enrique Vallines García, María Luisa Villamarín López and Marcin Walasik.

See here for further information.

Following the release of a draft code of private international law (announced here), the French Ministry of Justice has launched on 8 June 2022 a public consultation to gather feedback from all stakeholders, including academics, “in order to determine the possible next steps”.

The blog has started to contribute to the discussion (see here on renvoi and here on foreign law) and other comments will follow.

Scope of the Consultation

The consultation template is divided into three main parts. The first part concerns the very principle of adopting written codified rules in the field of private international law, as well as the scope of the code (i.e. purely national or including EU and international rules applicable within the French jurisdiction). The second part allows for general comments on the draft Code (eg. its structure, its material scope). Finally, the third part proposes article-by-article comments (among 207 articles).

Conditions for Participation in the Consultation

The French Ministry of Justice invites interested parties to send comments on the draft code of private international law to consultation-codedip.dacs@justice.gouv.fr using the Word document provided for. Comments that do not respect this format will not be taken into account.

The consultation is open until 30 September 2022.

Written by Dr Meng Yu and Dr Guodong Du, co-founders of China Justice Observer

Key takeaways:

• Despite the fact that the elaboration of a judicial interpretation appears to have been put on hold, China’s Supreme People’s Court has now resorted to conference summaries, which are not legally binding but have a practical impact, to express its views in recognition and enforcement of foreign judgments.
• As a landmark judicial policy issued by China’s Supreme People’s Court, the 2021 Conference Summary provides a detailed guideline for Chinese courts to review foreign judgment-related applications, including examination criteria, refusal grounds, and an ex ante internal approval mechanism.
• The 2021 Conference Summary enables an ever greater number of foreign judgments to be enforced in China, by making substantial improvements on both the issues of “threshold” and “criteria”. The threshold addresses whether foreign judgments from certain jurisdictions are enforceable, whereas the criteria deal with whether the specific judgment in an application before Chinese courts can be enforced.
• The 2021 Conference Summary significantly lowers the threshold by liberalizing the reciprocity test, while providing a much clearer standard for Chinese judges to examine applications for recognition and enforcement of foreign judgments.
• The existence of a “treaty or reciprocity” remains to be the threshold (precondition) for Chinese courts to review applications.
• In terms of reciprocity, new reciprocity tests are introduced to replace the previous de facto reciprocity test and presumptive reciprocity. The new reciprocity criteria include three tests, namely, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment without exception, which also coincide with possible outreaches of legislative, judicial, and administrative branches. Chinese courts need to examine, on a case-by-case basis, the existence of reciprocity, on which the Supreme People’s Court has the final say.

China has published a landmark judicial policy on the enforcement of foreign judgments in 2022, embarking on a new era for judgment collection in China.

The judicial policy is the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” (hereinafter the “2021 Conference Summary”) issued by the China’s Supreme People’s Court (SPC) on 31 Dec. 2021. The 2021 Conference Summary makes it clear for the first time that applications for enforcing foreign judgments will be examined subject to a much more lenient standard.

Since 2015, the SPC has consistently disclosed in its policy that it wishes to be more open to applications for the recognition and enforcement of foreign judgments, and encourages local courts to take a more amicable approach to foreign judgments within the scope of established judicial practice.

Admittedly, the threshold for enforcing foreign judgments was set too high in judicial practice, and Chinese courts have never elaborated on how to enforce foreign judgments in a systematic manner. As a result, despite the SPC’s enthusiasm, it is still not appealing enough for more judgment creditors to apply for recognition and enforcement of foreign judgments with Chinese courts. However, this situation is now changed.

In January 2022, the SPC published the 2021 Conference Summary with regard to cross-border civil and commercial litigation, which addresses a number of core issues concerning the recognition and enforcement of foreign judgments in China. Just to be clear, in the Chinese legal system, the conference summary is not a legally binding normative document as the judicial interpretation, but only represents the consensus reached by Chinese judges nationwide, similar to the “prevailing opinion” (herrschende Meinung) in Germany, which will be followed by all judges in future trials. In other words, conference summaries serve as guidance for adjudication. On one hand, as a conference summary is not legally binding, the courts cannot invoke it as the legal basis in judgments, but on the other hand, the courts can make the reasoning on the application of law according to the conference summary in the “Court Opinion” part.

The 2021 Conference Summary makes substantial improvements in two aspects, i.e. the “threshold” and “criteria”.

The threshold aspect refers to the first obstacle applicants will face when applying for recognition and enforcement of a foreign judgment in China, that is, whether foreign judgments from certain countries are enforceable. Countries reaching the threshold now include most of China’s major trading partners, which is huge progress compared with the prior 40 countries or so. If the country where the judgment is rendered reaches the threshold, criteria will then be used by the Chinese courts in reviewing whether the specific judgment in the application can be enforced in China. Now a clearer threshold and criteria enable applicants to have more reasonable expectations about the likelihood of a foreign judgment being enforced in China.

1. Threshold: the threshold for enforcing judgments of most foreign countries in China has been significantly lowered.

The 2021 Conference Summary significantly lowers the threshold for the recognition and enforcement of foreign judgments in China, making a breakthrough in existing practice. According to the 2021 Conference Summary, the judgments of most of China’s major trading partners, including almost all common law countries as well as most civil law countries, can be enforceable in China.

Specifically, the 2021 Conference Summary states that the judgment can be enforced in China if the country where the judgment is rendered satisfies the one of the following circumstances:

(a) The country has concluded an international or bilateral treaty with China in respect of recognition and enforcement of foreign judgments.

Currently, 35 countries meet this requirement, including France, Italy, Spain, Belgium, Brazil, and Russia.

The List of China’s Bilateral Treaties on Judicial Assistance in Civil and Commercial Matters (Enforcement of Foreign Judgments Included) is available here.  Authoritative texts in Chinese and other languages are now available.

(b) The foreign country has a de jure reciprocal relationship with China.

This means that where a civil or commercial judgment rendered by a Chinese court can be recognized and enforced by the court of the foreign country according to the law of the said country, a judgment of the said country may, under the same circumstances, be recognized and enforced by the Chinese court.

In accordance with the criteria of de jure reciprocity, the judgments of many countries can be included in the scope of enforceable foreign judgments in China.  For common law countries, such as the United States, the United Kingdom, Canada, Australia, and New Zealand, their attitude towards applications for recognition and enforcement of foreign judgments is open, and in general, such applications meet this criterion. For civil law countries, such as Germany, Japan, and South Korea, many of them also adopt a similar attitude to the above-mentioned de jure reciprocity, so such applications also meet this criterion to a great extent.

It is noteworthy that in March 2022, Shanghai Maritime Court ruled to recognize and enforce an English judgment in Spar Shipping v Grand China Logistics (2018) Hu 72 Xie Wai Ren No.1, marking the first time that an English monetary judgment has been enforced in China based on reciprocity. This decision has previously been highlighted here. One key to ensuring the enforcement of English judgments is the reciprocal relationship between China and England (or the UK, if in a wider context), which, under the de jure reciprocity test (one of the new three tests), was confirmed in this case.

(c) The foreign country and China have promised each other reciprocity in diplomatic efforts or reached a consensus at the judicial level.

The SPC has been exploring  cooperation in mutual recognition and enforcement of judgments with other countries in a lower-cost way in addition to signing treaties, such as a diplomatic commitment or a consensus reached by the judiciaries. This can achieve functions similar to that of treaties without being involved in the lengthy process of treaty negotiation, signing, and ratification.

China has started similar cooperation with Singapore. A good example of judicial outreach is the Memorandum of Guidance Between the Supreme People’s Court of the People’s Republic of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments In Commercial Cases (available here). It is thus fair to say that the 2021 Conference Summary has substantially lowered the threshold by liberalizing the reciprocity test.

2. Criteria: Clearer standard for Chinese judges to examine each application for recognition and enforcement of foreign judgments

The 2021 Conference Summary makes it clear under what circumstances Chinese courts may refuse to recognize and enforce a foreign judgment and how the applicants may submit the applications, which undoubtedly enhances  feasibility and predictability.

Pursuant to the 2021 Conference Summary, a foreign judgment can be recognized and enforced in China if there are no following circumstances where:

(a) the foreign judgment violates China’s public policy;

(b) the court rendering the judgment has no jurisdiction under Chinese law;

(c) the procedural rights of the Respondent are not fully guaranteed;

(d) the judgment is obtained by fraud;

(e) parallel proceedings exist, and

(f) punitive damages are involved (specifically, where the amount of damages award significantly exceeds the actual loss, a Chinese court may refuse to recognize and enforce the excess).

Compared with most countries with liberal rules in recognition and enforcement of foreign judgments, the above requirements of Chinese courts are not unusual. For example:

• The above items (1) (2) (3) and (5), are also requirements under the German Code of Civil Procedure (Zivilprozessordnung).
• Item (4) is consistent with the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
• Item (6) reflects the legal cultural tradition on the issue of compensation in China.

In addition, the 2021 Conference Summary also specifies what kind of application documents should be submitted to the court, what the application should contain, and how parties can apply to the Chinese court for interim measures when applying for enforcing foreign judgments.

In short, a gradual relaxation of Chinese courts’ attitude can be seen towards applications for recognition and enforcement of foreign judgments since 2018. Recently the 2021 Conference Summary has finally made a substantial leap forward.

We hope to see such breakthroughs in rules be witnessed and developed by one case after another in the near future.

For a more detailed interpretation, together with the original Chinese version of the 2021 Conference Summary and its English translation, please read ‘Breakthrough for Collecting Judgments in China Series’ (available here).

For the PDF version of ‘Breakthrough for Collecting Judgments in China Series’, please click here. 

 

 

 

 

The Court of Justice delivered today its judgment in case C‑652/20 (Allianz Elementar Versicherungs AG), which is about Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 11, paragraphe 1, sous b), du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens que, lorsque cette disposition est applicable, elle détermine tant la compétence internationale que la compétence territoriale de la juridiction d’un État membre dans le ressort de laquelle se situe le domicile du demandeur ».

Reminder : Article 11: « 1. An insurer domiciled in a Member State may be sued:

a) in the courts of the Member State in which he is domiciled;

b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled; or

c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer”.

Source : https://curia.europa.eu/juris/document/document.jsf?docid=261922&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=FR&cid=8348163

This report was kindly prepared by Federica Simonelli, a research fellow funded by the P.O.N. UNI4Justice project at the University of Trento, Italy, and a member of the editorial staff of Giustizia consensuale (Consensual Justice).

On 10 June 2022, the University of Trento, Faculty of Law celebrated the first anniversary of the launch of Giustizia consensuale, founded and edited by Professor Silvana Dalla Bontà and Professor Paola Lucarelli.

In recent years, the debate surrounding consensual justice and party autonomy has received increasing attention in the national and international arenas and has raised a broad array of questions. What is the very meaning of consensual justice? Is the idea of consensual justice feasible? What is its role in a globalized world increasingly characterized by cross-border disputes? The rationale behind Giustizia consensuale lies in the pressing need to observe this phenomenon from different perspectives.

For those who did not have the opportunity to attend this informative event, this report offers a succinct overview of the topics and ideas exchanged during this well-attended, hybrid conference.

First session

Opening the symposium with an incisive preamble, Professor Silvana Dalla Bontà (University of Trento, Italy), editor-in-chief of Giustizia consensuale and chair of the first session, provided a context for the reasoning behind this new editorial project and some of the research areas it intends to focus on. Notably, with the aim of meeting the needs of an increasingly complicated and multi-faceted society, Giustizia consensuale endeavours to investigate the meaning of consensual justice, its relationship with judicial justice, and the potential for integrating, rather than contrasting, these two forms of justice.

Professor Dalla Bontà’s introductory remarks were followed by Professor Paola Lucarelli (University of Florence, Italy), co-editor of the Giustizia consensuale, on the topic of Mediating conflict: a generous push towards change, strongly reaffirming the importance of promoting and strengthening consensual justice instruments, not only to reduce the judicial backlog but also to empower the parties to self-tailor the solution of their conflict, by fostering responsibility, self-determination, awareness, and trust.

Professor Francesco Paolo Luiso (University of Pisa, Italy – Academician of the Order of Lincei) then proceeded to effectively illustrate the essential role played by lawyers in changing the traditional paradigm of dispute resolution which sees court adjudication as the main (if not, the sole) way of settling disputes. Conversely, the judicial function is a precious resource, and its use must be limited to instances where the exercise of the judge’s adjudicatory powers is strictly necessary, thus directing all other disputes toward amicable, out-of-court dispute resolution mechanisms. Hence, lawyers are in the privileged position of presenting clients with a broad array of avenues to resolve disputes and guiding them to the choice of the most appropriate dispute resolution instrument.

Professor Antonio Briguglio (University of Rome Tor Vergata, Italy) then continued with an interesting focus on the relationship between conciliation and arbitration within the overall ADR system. After examining when and how conciliation is attempted during the course of the arbitral proceedings, he shed light on the interesting, and often unknown to the public, ‘conciliatory’ dynamics which often occur amongst members of arbitral tribunals in issuing the arbitration award. In an attempt to find common ground between different viewpoints, conciliatory and communicative skills of arbitrators play a decisive role, in particular in international commercial arbitrations on transnational litigation.

Procedure, Party agreement, and Contract was the focus of a very thorough presentation by Professor Neil Andrews (University of Cambridge, UK) who underlined that consensual justice is a highly stimulating and significant meeting point between substance and procedure, as well as being an important perspective within technical procedural law. He stated that there are three points of interaction between agreement and procedure. Firstly, the parties are free to agree to self-impose preliminary ‘negotiation agreements’ and/or mediation agreements. Secondly, the parties can take a further step to specify or modify the elements of the relevant formal process, albeit court proceedings or arbitration. Thirdly, parties can dispose of or narrow the dispute through a settlement.

The first session concluded with an insightful presentation from Professor Domenico Dalfino (University of Bari Aldo Moro, Italy) who explored the long-debated issue of which party bears the burden of initiating the mandatory mediation in proceedings opposing a payment order. While expressing his criticism towards mandatory mediation, he maintained that voluntariness is the very essence of mediation and the promise of its success.

Second session

The event continued with a second session chaired by Professor Paola Lucarelli. From the perspective of the Brazilian legal system, Professor Teresa Arruda Alvim (Pontifical Catholic University of São Paulo, Brazil) began the session by illustrating that in the last few decades, ADR has afforded parties the possibility to self-tailor a solution to their conflict while significantly diminishing the case overload of the judiciary. Nevertheless, the obstacles to the growth of ADR are multiple, ranging from the lack of preparation of mediators to the traditional adversarial approach of attorneys. She concluded by stating that legal systems must invest, on the one hand, in training highly qualified mediators while on the other, providing new educational paths for attorneys to acquire new negotiation and mediation skills.

The session proceeded to address Online Dispute Resolution (ODR), examining the strengths and weaknesses of using new technologies to solve disputes. Professor Silvia Barona Vilar (University of Valencia, Spain) highlighted the positive and negative aspects of the increasing use of ODR in our digital and algorithmic society. While ODR devices are considered as ensuring access to justice and favouring social peace and citizens’ satisfaction, there are also complex issues around the use of Artificial Intelligence and algorithms such as their accountability, accurate assessment, and transparency.

The relationship between the use of technology and access to justice was explored in depth by Professor Amy J. Schmitz (The Ohio State University, USA), who based her presentation on a thorough empirical study of ODR as a means to advance access to justice for  poor or vulnerable individuals who would otherwise be unable to have their ‘day in court.’

Potential applications of new technologies used in resolving disputes were then examined by Professor Colin Rule (Stanford Law School, USA), who highlighted that ODR, originally created to help e-commerce companies build trust with their users, is now being integrated into the courts to expand access to justice and reduce costs. While admitting there are many questions that still need to be answered, Rule predicted that ODR will play a major role in the justice systems of the future through the expansion of Artificial Intelligence and machine learning.

Showing a more critical approach Professor Maria Rosaria Ferrarese (National School of Administration, Italy) shed light on the threat posed by the use of digital technologies in resolving disputes, after having edited the Italian version of a book by Antoine Garapon and Jean Lassègue – Justice digital. Révolution graphique et rupture anthropologique (Digital Justice. Graphic Revolution and Anthropologic Disruption). While acknowledging that Artificial Intelligence and algorithms can deliver a fast and cheap justice, she underlines that justice is not only about settling a case in a rapid and inexpensive way but also about reinforcing values of a given society and ensuring a creative application of the law.

Council Decision (EU) 2022/1022 of 9 June 2022 on the signing, on behalf of the European Union, of the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Mining, Agricultural and Construction Equipment (MAC Protocol), has been published in the Official Journal L 172, of June 29.

Pursuant to the Decision, the signing on behalf of the Union of the Protocol adopted in Pretoria on 22 November 2019 is authorised, subject to its conclusion.

A Declaration is attached to the Decision in compliance with Article XXIV(2) of the MAC Protocol, providing that, at the time of signature, acceptance, approval or accession, a regional economic integration organisation is to make a declaration specifying the matters governed by that Protocol in respect of which competence has been transferred to that organisation by its Member States. It specifies that, in respect of matters governed by the MAC Protocol, the European Union has exercised its competence by adopting Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article IX of the MAC Protocol – ‘Modification of provisions regarding relief pending final determination’), Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (Article X of the MAC Protocol – ‘Remedies on Insolvency’ – and Article XI of the MAC Protocol – ‘Insolvency assistance’) and Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (Article VI of the MAC Protocol – ‘Choice of law’).

The Declaration lists the States members to the European Union and excludes from its scope Denmark and certain territories belonging to Member States. It shall be approved on behalf of the Union, subject to the adoption of a decision on the conclusion of the MAC Protocol at a later stage.

A puzzling title perhaps I agree but let me explain. Thank you Matthias Storme for alerting me to the May 2021 preliminary reference by the Belgian Supreme Court, a reference now known at the CJEU as Case C-358/21 Tilman SA (of Belgium) v Unilever Supply Chain Company AG (of Switserland). Elucidation is asked of Article 23 of the Lugano 2007 Convention, the choice of court provision in the Convention.

The question referred, reads

Are the requirements under Article 23(1)(a) and (2) of [Lugano 2007], satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

Article 23 Lugano 2007 is identical (mutatis mutandis: the only difference being that A23 Lugano refers to ‘States to the Convention’ instead of ‘Member States’) to the former Article 23 of the Brussels I Regulation, Regulation 44/2001.  A23 Lugano 2007 reads in relevant part

1. 1. If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
   2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

The case at issue therefore does not question so-called ‘click-wrap’ consent to general terms and conditions – GTCs. These require the contracting partner to tick the relevant box which then ‘wraps up’ the agreement, including choice of court (and law). They were the subject of CJEU El Majdoub v CarsOnTheWeb. In that judgment, the CJEU held that in a B2B context, where the GTCs that have to be ticked can be saved and printed, they can be a ‘durable’ record of consent. (Not: consent itself: that is subject to a separate analysis, under the relevant lex causae, see below).

Rather, the title of this post calls the issue one of ‘flag-wrap’: one of the parties’ (Unilever’s) GTCs  are contained on a website, and their existence is ‘flagged’ in the written main contract. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts; note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged)?

The provisions on forum clauses are drafted in a way ‘not to impede commercial practice, yet at the same time to cancel out the effects of clauses in contracts which might go unread’ (Jenard Report), or otherwise ‘unnoticed’ (CJEU Colzani). The Brussels Convention and now the Regulation show great support for choice of court agreements and aim not to be as overly formalistic as the conditions imposed upon them.

Importantly, valid choice of court does require both a clearly and precisely demonstrated consent to be bound by choice of court and one or another Article 25-sanctioned form of expression of that consent. In Colzani the CJEU held [7]:

the requirements set out in Article [25] governing the validity of clauses conferring jurisdiction must be strictly construed. By making such validity subject to the existence of an ‘agreement’ between the parties, Article [25] imposed upon the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by Article [25] is to ensure that the consensus between the parties is in fact established.

CJEU authority of Colzani and Coreck Maritime impose on the court the duty of examining ‘whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties’ and this had to be ‘clearly and precisely demonstrated’.

In practice, many courts conflate the check for consent with the check for expression of that consent and even the CJEU is not always clear in distinguishing it. In particular, absence of proof of any of the three possible avenues for expression of consent, included in Article 25(1) a, b or c, or then taken as an absence of consent, full stop. In Colzani, the CJEU held

[T]he mere fact that a clause conferring jurisdiction is printed among the general conditions of one of the parties on the reverse of a contract drawn up on the commercial paper of that party does not of itself satisfy the requirements of Article 17, since no guarantee is thereby given that the other party has really consented to the clause waiving the normal rules of jurisdiction. Where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 of the Convention is fulfilled only if the contract signed by both parties contains an express reference to those general conditions.

The CJEU here, wrongly, seems to suggest lack of compliance with the expression of consent indicates a lack of that consent full stop.

Importantly, the CJEU in its rulings on what was then Article 23 and its Brussels Convention predecessor keeps utterly silent on national conditions relating to the actual formation or existence of consent. This, as regular readers of the blog will know, is at least for cases covered by Brussels Ia, subject to the lex fori prorogati, with renvoi, an issue which both national courts and the CJEU struggle with.

How then should the CJEU respond to the question (I asked my conflict of laws students at Leuven this question in a first exam on 18 June)?

Firstly, the Court should (and will) remind us of the Jenard /Colzani core instruction: the need to ensure consent is established, without being overly formalistic. Different from the context of the protected categories, there is no ‘weaker category’ to protect here.

Secondly,  there needs to be durability of the record of consent. That seems to be guaranteed here via the technicalities of the Unilever platform (downloadable GTCs) and in line with aforementioned CJEU Al Majdoub (the June students were not given technical details but should still flag durability).

Thirdly, despite the formal A23  requirement most probably being met, the consent requirement to me seems far from certain. In a click and wrap context ― lest there be issues of agency, duress, consumer protection laws etc. (in a context where the consumer title’s conditions are not met) which need to be held under the law applicable to consent ― the box ticking solidifies establishment of consent. In a mere flag and wrap context, that to me seems far less certain. If the reference were to a url where GTCs are properly and collectively displayed (if need be, updated with clear reference to chronology; see housekeeping), consent by an ordinary careful business (the proverbial (business)man on the Clapham omnibus). Yet if such as here, the link communicated in the formal contract refers to a platform where the  GTCs are not the first thing the contracting party sees, rather, where it is expected that that contracting party registers and /or downclicks, search and retrieve etc., that consent to me seems far less certainly established. [Again my students were not given the details on the platform which the reference includes, they did however have to signal the issue of consent).

Finally, under BIa, the lex fori prorogati, incl renvoi, would determine the above considerations of consent. Here, therefore, English law including its conflict of laws rules on choice of court. However seeing as the case is not subject to Brussels Ia, but rather to Lugano, the lex causae for consent will be an issue for the courts seized (here, the Belgian courts) to determine. Under the Belgian rules, this means application of Rome I (Rome I excludes choice of court agreements however Belgium’s private international law Act makes Rome I applicable even to carved-out contractual arrangements).

An interesting reference.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.

 

This is the third contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs, the second one by Gilles Cuniberti. The post below was written by Antonio Leandro, who is Professor of Private International Law at the University of Bari.

In London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain the Court attempted to strike a balance between the ‘integrity of a Member State’s internal legal order’ and the ‘provisions and fundamental objectives’ of the Brussels I Regulation. This is as much apparent as the fact that the Court ruled closely on the circumstances of the case.

‘Internal integrity’ means that the recognition cannot trigger irreconcilability between judgments in the requested State, even when it comes to ‘judgment entered in terms of an award’. The relevant ‘provisions and fundamental objectives’ of the Brussels I Regulation prevent the same judgment from being recognized where: (a) jurisdiction (arbitration) clauses in insurance contracts have worked against (third) injured parties in such a way as to restrict their right to bring direct actions against the insurer, and (b) lis pendens rules have been breached.

What about ‘judgments entered in terms of an award’ that instead comply with ‘provisions and fundamental objectives’ of the Regulation? The expression may refer to ‘judgments entered in terms of an award’ not breaching the relative effect of jurisdiction (arbitration) clauses or the lis pendens rules, or, more generally, not encroaching on the provisions of the Regulation that protect weak parties.

Nothing seems to prevent such judgments from falling under Article 34(3) of the Brussels I Regulation and, even more, under Article 45(3) of the Brussels I Regulation (Recast), because the definition of ‘judgment’ in Article 2(a) does not appear to be limited to the material scope of the Regulation.

Res Judicata in the Interplay between Brussels I and Arbitration

The Court put res judicata outside the realm of public policy. In this respect, the Court went beyond the circumstances of the case, as it reiterated that ‘the use of the “public-policy” concept is precluded when the issue is whether a foreign judgment is compatible with a national judgment’ (para 78, which refers to Hoffmann).

The message is clear: the ‘issue of the force of res judicata’ has been regulated exhaustively in Article 34(3) and (4) of the Brussels I Regulation (Article 45 (1) (c) and (d) of the Brussels I Regulation (Recast)). The issue has been regulated exhaustively when it comes to ‘judgments’, even those ‘entered in terms of an award’.

Instead, the ‘issue’ — i.e., the use of the public policy exception under the Brussels I Regulation (Recast) to protect the force of res judicata against the recognition of irreconcilable foreign judgments – remains open when it comes to arbitral awards.

Assuming that the protection of res judicata of arbitral awards amounts to a public policy concern in the requested State, Article 45(1)(a) may be relied upon as a ground for refusing the recognition of an irreconcilable foreign ‘judgment’. This conclusion does not find obstacles in the Court’s reasoning.

As I argued elsewhere, the public policy defence neither overlaps nor expands in such cases the grounds for refusing the recognition related to the ‘irreconcilability’ that the Brussels I Regulation (Recast) confines to ‘judgments’. Put it differently, protecting res judicata of arbitral awards through the public policy exception would not entail an issue of ‘irreconcilability’ in terms of Article 45(1)(c) and (d), and would be consistent with the arbitration exclusion.

From a wider perspective, the binomial ‘res judicata – public policy’ helps the Brussels I Regulation (Recast) and arbitration coexist, including by securing the right interplay between the Regulation and the 1958 New York Convention.

Just as it may work under the Brussels I Regulation (Recast) to protect res judicata of arbitral awards, the binomial ‘res judicata – public policy’ may work, in fact, under Article V(2)(b) of the 1958 New York Convention in the reverse direction of protecting res judicata of judgments. Article V(2)(b) allows the competent authority in the requested State to refuse recognition or enforcement of an award found to be contrary to the public policy of that State. This may occur where the award is ‘irreconcilable’ with judgments having res judicata in the requested Member State, including foreign judgments that have been recognized therein under the Brussels I Regulation (Recast).

The new issue of the Revue Critique de Droit International Privé (2/2022) is out.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (La guerre et le statut des personnes: que peut le droit ?)

The new issue contains four articles in private international law matters and numerous case notes, including a chronique on international migration law focused on foreigners’ detention (authored by Thibaut Fleury Graff, with the participation of Inès Giauffret, University of Paris-Saclay).

In the first article, Didier Boden (University Paris 1 Panthéon-Sorbonne) explores the nature of legal norms enacted outside a State but analysed as a component of that State’s law (Les règles d’incrustation).

Some rules provide that legal norms enacted outside a State shall be considered as a component of that State’s law. These are not so-called incorporation rules that the constitutional law of some States requires to be adopted so that a treaty to which these States become parties must be applied by their authorities. They are not norms traditionally called rules on the conflict of laws in private international law, designating the law applicable to certain situations; nor are they rules requiring that a first norm be taken into consideration when a second norm is applied. They are provisions to which this article gives the name of inlaying rules and of which it describes the nature.

In the second article, Charlotte Guillard (University of Paris 2 Panthéon-Assas) examines international environmental litigation in the light of classic goals of private international law (Protection de l’environnement et justice conflictuelle : une nouvelle équation pour le droit international privé ?)

International environmental litigation is booming. The current study analyzes the main issues around the fundamental questions underlying such evolution through the prism of the traditional distinction between conflictual and substantive justice. Whether in the field of conflict of laws or in that of international jurisdiction, the global movement of materialization that is gaining ground in private international law is very visible in environmental matters. And this is not an insignificant phenomenon: the substantial results brought by the rules of private international law regarding the protection of the environment, struggle to materialize, while the coordination of legal orders on these crucial issues is rarely achieved. In spite of a strong political will, one can only note the limitation of these litigations to the preliminary questions of private international law, to the detriment of the realization of the common goal to fight against the attacks made to the environment, set by the community of the States. The resources of conflictual justice – justice of conciliation – can, in this perspective, be usefully used to promote this objective, the achievement of which is urgent, in view of the challenges it underlies.

In the third article, Uta Kohl (University of Southampton) analyses the interplay between some provisions of the GDPR regarding its (cross-border) geographical scope of application (Les Lignes directrices 05/2021 du CEPD sur l’interaction entre l’article 3 et le chapitre V du RGPD. Le RGPD entre protection accrue et faiblesse inhérente).

The European Data Protection Board’s Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR continue the maximalist territorial approach the EU has taken at least since Google Spain (2014) but speak particularly to the recognition in Schrems II (2020) that the simple extension of a protective law to another country does not necessarily translate into equivalent protection if the wider legal landscape in that country distorts the law in its actual operation. This recognition necessarily entails that being subject to the GDPR (Art 3) should not displace the transfers rules in Chapter V if the processing occurs in a third country, given that only the transfer rules are directed towards the actual reception of GDPR normativity in the third country. Whilst implicitly the cumulative approach acknowledges that giving the GDPR a wide territorial scope hardly delivers a panacea of effectiveness on far away shores in fundamentally different legal and political orders, whether it will redress that weakness is equally doubtful.

In the last article, Horatia Muir Watt (Sciences Po Law School) explores emerging trends in the field of collective redress under a private international law perspective (Les actions de groupe et le droit international privé : une lame de fond ?).

New legal subjectivities are emerging in our legal landscape. They are composite, metaphorical, mixing the public and the private, protective of collective interests, and of course always fictional. The site on which to monitor the depth of the shift is the courtroom, where unfamiliar, foreign entities, transplanted from alien contexts, are claiming legal standing.

More information is available here.