Droit international général

First Advocate General Szpunar today opined in C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA. The case was triggeredy a Le Monde article which claimed that Real Madrid Club de Fútbol had retained the services of Dr. Fuentès, the head of a blood-doping ring previously uncovered in the cycling world.

Le Monde later published Madrid’s reaction of denial but refused to retract the piece. Spanish courts imposed a damages and costs award of close to  €400,000, and a lower award on the journalists involved.

The Court of Appeal at Paris refused to recognise let alone enforce the judgment, referring to French ordre public. It concluded that the orders to pay an exceptional amount made against a journalist and a media organisation could not fail to have a deterrent effect on their involvement in the public discussion of matters of community interest such as to curtail the media’s ability to perform its information and monitoring role, meaning that the recognition or enforcement of the judgments pronouncing those penalties would be at variance to an unacceptable degree with French international public policy by interfering with freedom of expression.

Real Madrid submit, in essence, that a review of the proportionality of damages may only be undertaken where those damages are punitive in nature and not compensatory; that, by substituting its own assessment of the harm for that of the court of origin, the Court of Appeal had reviewed the foreign judgment, in breach of Articles 34(1) and 36 of the Brussels I Regulation; that it did not take account of the seriousness of the wrongs accepted by the Spanish court; that the economic situation of persons on whom a financial penalty is imposed is not a relevant criterion in assessing whether the penalty was disproportionate; that the assessment of proportionality should not be carried out by reference to national standards.

Colleagues with much greater authority on SLAPPs will no doubt have more impactful analysis soon: this post is a heads-up.

CJEU authority includes of course Krombach, Trade Agency, Meroni and Diageo, as well as Charles Taylor Adjusting aka Starlight Shipping, EcoSwiss and Renault. The AG (50) points out that the relevant authorities hitherto have engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights.

(48) ff he discusses parties’ right under Article 6 ECHR and 47 of the Charter, to have a judgment enforced abroad. (60) ff follows discussion of the principle of mutual trust (which earlier today also featured in Inkreal).

(77) ff he discusses the authorities (see both blog posts referred to above and Handbook 4th ed. 2.619 ff) and highlights the existence of freedom of expression as a fundamental EU, as opposed ‘simply’ national right within the realm of EU ordre public. (142) ff discusses the issue of punitive awards and (159) ff the freezing effect of awards such as the one at issue. He comes to the conclusion that refusal of recognition not just can but must happen where the freezing effect of a libel award endangers participation in the public debate, linked to the financial absorption capacity of both the outlet and journalist concerned:

“un État membre dans lequel est demandée l’exécution d’une décision rendue dans un autre État membre, portant sur une condamnation d’une société éditrice d’un journal et d’un journaliste pour l’atteinte à la réputation d’un club sportif et d’un membre de son équipe médicale par une information publiée dans ce journal, doit refuser ou révoquer une déclaration constatant la force exécutoire de cette décision lorsque l’exécution de celle-ci conduirait à une violation manifeste de la liberté d’expression garantie à l’article 11 de la charte des droits fondamentaux.” (emphasis added)

“Une telle violation existe lorsque l’exécution de ladite décision engendre un effet dissuasif potentiel s’agissant de la participation au débat sur un sujet d’intérêt général tant des personnes visées par la condamnation que d’autres sociétés de presse et journalistes dans l’État membre requis. Un tel effet dissuasif potentiel se manifeste lorsque la somme globale dont le paiement est demandé est manifestement déraisonnable au regard de la nature et de la situation économique de la personne concernée. Dans le cas d’un journaliste, l’effet dissuasif potentiel se présente, en particulier, lorsque cette somme correspond à plusieurs dizaines de salaires minimums standard dans l’État membre requis. Dans le cas d’une société éditrice d’un journal, l’effet dissuasif potentiel doit s’entendre comme une mise en danger manifeste de l’équilibre financier de ce journal. Le juge de l’État membre requis peut tenir compte de la gravité de la faute et de l’étendue du préjudice uniquement pour déterminer si, en dépit du caractère a priori manifestement déraisonnable de la somme globale d’une condamnation, celle-ci est appropriée pour contrecarrer les effets des propos diffamatoires.”

Of much note in the context of the EU’s discussions on a SLAPP Directive.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

Opinion now here https://t.co/jRgZ6ej23U
citing ia @ProfPech, @CunibertiGilles, @burkhard_hess, @Maxime_Barba https://t.co/KJgqOtk80R

— Geert Van Calster (@GAVClaw) February 8, 2024

As I had half hoped, half predicted, the CJEU today held differently than its AG had opined in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..: 

an agreement conferring jurisdiction by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract is covered under Article 25 Brussels Ia, even if that contract has no other connection with that other Member State.

The Court cites in support:

[15] ff: statutory wording: [17]: “the wording of [A25(1)] does not preclude an agreement conferring jurisdiction, by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract, from being covered under that provision, even if that contract has no other connection with that other Member State.”

[18] ff: context: ‘civil matters having cross-border implications’ (recital 3) and ‘cross-border litigation’ (recital 26) are mentioned yet the ‘international element’ required is not defined. As the CJEU had already held in C-280/20, ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania [the Bulgarian consulate], an equivalent concept must be used as in the order for payments Regulation. That defines the equivalent concept of ‘cross-border litigation’ as ‘one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised’. In current case [23] the parties to that dispute are established in a Member State other than the Member State of the court which was seised on the basis of the agreement conferring jurisdiction at issue. Moreover, [24] a question relating to the determination of international jurisdiction clearly arises in the case, more specifically whether the courts having jurisdiction to settle this dispute are those of the Czech Republic, or those of the Slovak Republic as the Member State in which the two parties are established.

Further, [26], the interpretation of A25 must also be carried out in the light of the objectives of respecting the autonomy of the parties and enhancing the effectiveness of exclusive choice-of-court agreements, as referred to in recitals 15, 19 and 22 BIa.

Moreover, [27] ff, both predictability and legal certainty, core BIa objectives, are served by the inclusion of choice of court such as in the case at issue. [29] jurisdiction can readily be considered and [30] the possibility of concurrent proceedings is minimised. [31] should choice of court in these circumstances not be valid, BIa is likely not to apply and the application of residual national PIL is likely to lead to conflicting decisions. [32] ff for courts to have to consider additional elements capable of demonstrating the cross-border impact of the dispute concerned, would create uncertainty rather than remedy it.

[35] application of BIa here also demonstrates mutual trust and increased access to justice.

Finally [36] a parallel with the Hague Choice of Court Convention clearly was not sought, quite the contrary, BIa expressly not including a similar provision illistrates its diverging intention.

An excellent judgment echoing many of my earlier expressed sentiments on the issue and arguments.

Geert.

EU Private International Law, 4th ed. 2024, 2.30.

In line with my expectation (see https://t.co/rIoSYfk1qS), the CJEU has not followed its AG on the 'international' element required to enable choice of (foreign) court under A25 Brussels Ia
C-566/22 Inkreal https://t.co/k94JgtdT2G

— Geert Van Calster (@GAVClaw) February 8, 2024

The Rovira i Virgili University of Tarragona will host on 4 and 5 April 2024 a conference titled Conflict of Laws on Rights in Rem in the EU: Status Quo and Proposals for the Future.

The event is part of a research project titled Regime of Rights in Rem over Tangible Property in European Private International Law: Issues of International Jurisdiction and Applicable Law, with Georgina Garriga Suau and Maria Font i Mas as principal investigators.

The conference will feature five panels.

The first four, in English, will be respectively devoted to: Private international law of rights in rem in the U.S. and the European Union (with Christofer A. Whytock and Marta Pertegás Sender as speakers); Proposals for an EU Regulation on applicable law in the field of rights in rem (Francisco J. Garcimartín Alférez and Eva-Maria Kieninger); Questions on the law applicable to rights in rem (Gilles Cuniberti, Afonso Patrâo, Pietro Franzina and Ivana Kunda); Challenges of the rights in rem in the digital era (Ilaria Pretelli, Silvana Canales Gutiérrez and Guillermo Palao Moreno).

The fifth panel, in Spanish, will address a selection of issues relating to cryptoassets, goods in transit and in rem securities in connection with cross-border insolvency proceedings, land registries and cultural property, the speakers being Vésela Andreeva, Josep Maria Fontanellas Morell, Iván Heredia Cervantes, Carmen Parra Rodríguez and Rosa Miquel Sala. The full programe van be found here.

The organisers of the conference have issued a call for presentations on any of the thematic areas covered by the panels. Speakers selected based on the call will be invited to make presentations in person during the conference for approximately ten minutes each. The deadline for submission of communications is open until 4 March 2024. Further information is available here.

Those interested in attending the conference are invited to register by e-mail at pilrightsinrem@urv.cat, specifying whether they plan to attend in person or on-line.

On 8 and 9 March 2024 a conference will be held at the University of Augsburg, organized by Tobias Lutzi, to discuss current developments in connection with punitive damages.

In particular, the event aims to critically discuss whether and to what extent the German courts‘ strict refusal to recognize foreign punitive damage awards is still tenable in light of developments both in legal systems that award punitive damages and in legal systems that do not (but may still recognize such awards).

Speakers include Tobias Lutzi, Lukas Rademacher, Jan Lüttringhaus, Phillip Hellwege, Catherine Sharkey, Rachael Mulheron, Eleni Katsampouka, Cedric Vanleenhove, Marko Jovanovic, Leonhard Hübner, André Janssen, Beligh Elbalti, Johannes Ungerer, Wolfgang Wurmnest, Samuel Fulli-Lemaire, Marta Requejo Isidro, Caterina Benini and Min Kyung Kim.

The full programme is available here.

Registration is possible via this link; attendance is free of charge.

Those interested in attending the conference on-line may get in touch with the organisers (tobias.lutzi@jura.uni-augsburg.de) and ask for a video-link.

It has already been announced on this blog that the next EAPIL conference will take place in Wrocław (Poland) between 6 and 8 June 2024, and will be devoted to Private International Law and Global Crises.

Those willing to join the conference may now register for the event through the dedicated conference website. Please note attendance is in person (on-site) only.

The full programme of the conference, together with practical information on travel and accommodation, are also found in the website.

Huge thanks to Agnieszka Frąckowiak-Adamska, Vice-President of the European Association of Private International Law, and her team, for taking care of the event!

The conference speakers include: Raffaele Sabato (European Court of Human Rights), Vincent Kronenberger (Court of Justice of the European Union), Andreas Stein (European Commission), Patrick Kinsch (University of Luxembourg), Veronica Ruiz Abou-Nigm (University of Edinburgh), Iryna Dikovska (Taras Shevchenko National University Kyiv), Tamasz Szabados (ELTE Eötvös Loránd University), Alex Mills (University College London), Matthias Weller (University of Bonn), Eduardo Alvarez Armas (Universidad Pontificia Comillas), Olivera Boskovic (Université Paris Cité), Rui Dias (University of Coimbra), Klaas Eller (University of Amsterdam), and Laura Carpaneto (University of Genova).

For further information: 2024.EAPIL.Wroclaw@uwr.edu.pl.

Geert De Baere (judge at the General Court of the EU and professor at KU Leuven) and Johan Meeusen (professor at the University of Antwerp) have just published with Larcier-Intersentia a new edition of their handbook, in Dutch, on the law of the European Union: Grondbeginselen van het recht van de Europese Unie.

The book provides an overview of the core elements of EU law, including the Union’s institutional organization and judicial protection, its fundamental principles, sources and decision-making procedures, the internal market, Union citizenship, competition law and external relations.

New in this second edition is a chapter on the European Union’s area of freedom, security and justice, which inter alia covers its historical development, the TFEU’s “general provisions” concerning the area and the specific Treaty provisions concerning its respective subfields. Readers are introduced to, inter alia, the institutional and substantive aspects of the judicial cooperation in civil matters and the Union’s action with respect to private international law.

Further information on the book, and on the simultaneous publication of new editions of Johan Meeusen’s books on the case law of the Court of Justice of the European Union and other sources of EU law, can be found here.

Regulation (EU) 2023/2844 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation, also knowns as the “Digital Justice” Regulation, was adopted on 13 December 2023 (see already here on the Regulation proposal, here on the text negotiations and here on the new text).

This Regulation constitutes an important step in the EU commitment to modernise cross-border proceedings in the European judicial area, in accordance with the “digital by default” principle. For the record, this principle means that delivering services digitally is the preferred option through a single contact point. In the judicial context, it applies to digital communication between authorities and litigants. It aims to improve the efficiency of exchanges and reduce costs and administrative burden. At the same time, this digital shift implies that all the necessary safeguards must be put in place to prevent social exclusion of certain litigants, while ensuring mutual trust between authorities, interoperability and the security of processes and data.

The “Digital Justice” Regulation seeks to find this difficult balance by establishing a uniform legal framework for the use of electronic communications between, on the one hand, the competent authorities in cross-border legal proceedings and, on the other, between these authorities and the parties. The Regulation also provides for harmonised provisions relating to the use of videoconferencing, the application of electronic signatures, the legal effects of electronic documents and the electronic payment of fees.

The Regulation builds on the increasingly  dense “digital acquis” in EU law, starting with the protection of personal data (i.e. GDPR and its extension to EU bodies), the eDIAS Regulation on electronic identification and trust services for electronic transactions and, more specifically in the area of judicial cooperation, the deployment of the e-CODEX system in the field of judicial cooperation in civil and criminal matters, the management of which has just been transferred to eu-LISA. This complex “regulatory web” dealing with the digitalisation of human and economic exchanges in the Union can no longer be ignored by legal practitioners and will have to be articulated with the e-Justice Regulation.

The Regulation lays down provisions on the digital exchanges of information which are intended to apply to cross-border proceedings in civil, commercial and criminal matters.

This material scope is quite remarkable, since until now the regulatory framework of judicial cooperation in the Union has developed in a differentiated and even hermetic manner between its civil component (Article 81 TFEU) and its criminal component (Article 82 seq. TFEU). Digitalisation marks a turning point in favour of the unification of the European judicial area, initiated with the e-CODEX Regulation, which is meant to constitute one of its structural (digital) dimensions. Indeed, digitalisation is a common issue relevant for the various forms of justice (and, more broadly, for public services and administrations). It is therefore welcome that the EU legislator has adopted a unified regulatory framework in this area. From an academic perspective, it should encourage scholars to look beyond their discipline – (EU) civil or criminal justice – to enhance cross-cutting analyses of the EU judicial area as a whole.

As far as private international law is concerned, Annex I of the Regulation includes most of the instruments adopted in the field of judicial cooperation in civil matters, with the exception of the “Rome” (I, II, III) Regulations dedicated to conflicts of laws and the Service of Documents and Taking of Evidence Regulations, which were already modernised in 2020 to incorporate the digital procedural dimension (see here and here).

The “Digital Justice” Regulation shall be understood as an instrument for “upgrading” the legal framework of EU judicial cooperation in its digital dimension. How does it work? Among all instruments adopted as part of EU policy on judicial cooperation in civil and in criminal matters, the implementation of those relating to cross-border proceedings triggers the “complementary” application of the new Regulation. In that respect, the Annex to the Regulation contains a list of the instruments concerned (Annex I in civil matters and Annex II in criminal matters). This means that the tools and channels for digitalising judicial cooperation provided for in the Regulation are intended to apply in the context of cross-border proceedings based on one or more of these listed instruments. The internationality criterion of the judicial proceedings in question will thus depend on the definition adopted by each instrument concerned.

By contrast, more recent (and future) EU instruments in civil and criminal matters do not (will not) fall within the scope of the e-Justice Regulation since they (will) develop their own digital-related provisions – as illustrated by the Taking of Evidence Regulations in civil matters and in criminal matters or de lege ferenda by the Regulation Proposal on the Protection of Adults –Eventually, the long-term objective of the EU legislator is to establish a judicial cooperation digitalised “by design” in the European area; and that will require strong commitment and concrete changes – in particular at the technical and administrative level – for the judicial systems of Member States.

It will certainly comfort legal practitioners and judicial actors to briefly mention the timeframe for implementing the new Regulation: this will be very gradual and will take several years. In principle, the Regulation will be applicable in spring 2025. However, as far as the provisions on electronic communications are concerned, the date of application of the new provisions depends on the implementing Acts that the European Commission will adopt to organise the future structural channels of digital interactivity between authorities and between authorities and litigants. To this end, a staggered timetable (from n+2 years to n+5 years) has been set for the adoption of several successive implementing Acts aimed respectively at one or other of the texts listed in the Annex. All in all, it will take until 2031 (according to a rough calculation) for the entire legal framework to be fully operational.

In terms of technical innovations, the Regulation sets up a uniform legal framework for digital exchanges of information via the Internet or another electronic communications network. The Regulation establishes two information channels for such electronic communications: first, a decentralised IT system to handle exchanges between the competent authorities (including relevant EU bodies) and, second, a European electronic access point for litigants to interact with the competent authorities. It is for the European Commission to specify, through implementing acts, the content of these two information channels. In addition, the Commission is in charge of developing “reference implementation software” so that Member States can adopt it, on a voluntary basis, as their back-end system, in place of a national IT system. It will also be responsible for maintaining the software as well as the European electronic access point. These are major technical and legal responsibilities for the Commission vis-à-vis national judicial systems; they may invite to reflect on the strategic positioning of this institution in the EU institutional architecture.

Decentralised IT system — The first channel for electronic communications will consist of national IT systems with interoperable access points, interconnected via the pan-European computerised communication system e-CODEX. The decentralised IT system should be used “as a matter of principle” for all exchanges between competent authorities in different Member States and between a competent national authority and an EU body or agency. This could be a court (e.g. for small claims procedures), a central authority (e.g. under the Brussels II ter Regulation) or an EU body or agency involved in judicial cooperation procedures in criminal matters, such as Eurojust. The decentralised computer system will in particular have to be used for the exchange of standard forms established by the instruments listed in the Annex.

Other means of electronic communication may be used by way of derogation only, in the event of disruption of the decentralised system, force majeure or because of the nature of the documents to be transmitted.

European electronic access point — The second digital communication channel is an innovation for civil litigants: the European electronic access point. It will be accessible from the European e-Justice portal and may be seen as a counterpart to the Single Digital Gateway for cross-border administrative procedures (including the cross-border circulation of public documents). It should in theory govern electronic exchanges between litigants and the competent authorities in all the cases provided for by the instruments listed in Annex I to the Regulation. This could involve making requests, sending and receiving information relevant to proceedings or being served with procedural documents. In that respect, Article 4 of the Regulation should be of particular interest to legal practitioners, as it offers a “systematic mapping” of the different scenarios for cross-border communication in the light of the instruments of judicial cooperation in civil matters listed in Annex I. In those scenarios, the competent authorities may have to accept electronic communication.

In order to make this work in practice, the Regulation requires Member States to train legal staff in these new digital channels. This is essential and will require an excellent understanding of the issues of accessibility, personal data protection and cyber security, both by practitioners and, more broadly, by public authorities.

Unlike the decentralised IT system, which responds to the digital by default principle, litigants will have to give their prior consent to enter into a dematerialised communication exchange with the national authorities of a Member State. In case of refusal, this should mean that the exchange will take place via “traditional” communication channels. Nothing is specified by the Regulation, as this is a matter for national law. In the long term, however, it is questionable whether this choice will always be possible, particularly in those Member States that have already made or well advanced the digital transition of their justice system. As a matter of fact, there are major disparities between Member States, including in terms of local territories and population, which could create gaps between the (requesting and requested) authorities for cross-border judicial cooperation.

The Regulation makes several references on the legal effects of the digitalisation of judicial cooperation and, more specifically, of its communications aspect. The sensitive point here relates to the potential influence of the digital format on the legal value of the document as “data flow”. The Regulation recalls that the rules governing cross-border judicial procedures established by the legal acts listed in the Annex are not affected, apart from the digital communication dimension of the new framework. In particular, the national law of the Member States continues to govern questions relating to the authenticity, accuracy and appropriate legal form of documents or information that will transit through the new digital channels.

A contrario, digitised exchanges must not deprive electronic documents of legal effects. This is provided for in Article 8 of the Regulation, which is a well-known provision as it already appears in other European instruments in digital matters: “Documents transmitted by electronic means shall not be deprived of legal effect and shall not be considered inadmissible in cross-border legal proceedings concerning the legal acts listed in Annexes I and II solely on the ground that they are in electronic form”.

The Regulation also organises the use of videoconferencing for hearings of persons in cross-border judicial proceedings listed in the Annex. The European legal acquis already contains provisions on the use of videoconferencing on an optional basis or subject to the existence of technical tools within the authorities concerned. The same rationale is followed by the Regulation, so there is no obligation. The promoters of digital justice may regret this, but the Regulation nevertheless provides that the use of videoconferencing may not be refused by the authorities of a Member State “solely on account of the non-existence of national rules governing the use of distance communication technology. In such a case, the most appropriate rules applicable under national law, such as rules on the taking of evidence, should apply mutatis mutandis” (Rec. 33). This voluntary and incentive-based approach is certainly justified, in order to take account of the disparities between national legal systems in terms of their level of digitalisation and, in the case of criminal proceedings, because of the great vulnerability of the individuals concerned by the proceedings, which digital communications may increase.

 The “Digital Justice” Regulation is an important step in the structuring of cross-border digital justice in the Union and paves the way for a (new) European “digital judicial culture”. In that respect, the Regulation leaves the Member States room for manoeuvre by allowing them to extend its scope to purely domestic judicial procedures – i.e. outside the EU competence based on Articles 81 and 82 TFEU –. This is of great significance since digitalisation blurs the boundaries between internal and international proceedings. The EU cross-border digital Justice should therefore have a long-term impact on national judicial systems of the Member States. But to succeed, major changes will be needed in national justice systems (as recently highlighted by the new e-Justice Strategy). In this context, a solid dialogue with legal and judicial practitioners will be central as well as keeping the “big picture” of digitalisation in mind, starting with the crucial issues of the digital divide, the protection of personal data and cybersecurity in relation to Article 47 of the EU Charter.

By Professor Du Tao* and Yang Zhenni**

On December 28, 2023, the Supreme People’s Court (SPC) held a press conference on Judicial Interpretations and Typical Cases on the Application of International Treaties and International Practices in Foreign-related Civil and Commercial Cases, deliberating the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-related Civil and Commercial Cases (Interpretation) and some related typical cases. The Interpretations was adopted by the Trial Committee of the Supreme People’s Court at its 1908th meeting on December 5, 2023, which will come into force on January 1, 2024. We translated the press announcement as follows:

Background and Significance of the Interpretation

People’s courts face the important issue of how international treaties and international practices are applied domestically in foreign-related civil and commercial trials. With the implementation of the Civil Code of the People’s Republic of China on January 1, 2021, the provisions of the General Principles of the Civil Law of the People’s Republic of China on the application of international treaties and international practices have been repealed, and the Civil Code has not made specific provisions on this issue. As a result, courts around the world as well as academics have called for an early clarification of the relevant rules on the application of international treaties and international practices by the people’s courts in foreign-related civil and commercial cases.

To this end, the Supreme People’s Court has comprehensively summarized the experience of judicial practice and, after thorough research, repeated argumentation, and extensive solicitation of suggestions, formulated this Interpretation, which is of the following significance:

Firstly, the formulation of the Interpretation is a major initiative to accelerate the construction of the rule of law in relation to foreign affairs and to serve and safeguard a high level of opening up to the outside world. Since the 18th Communist Party of China (CPC) National Congress, the construction of the “Belt and Road”, the pilot free trade zone and Hainan Free Trade Port, and other major strategies of opening up to the outside world have achieved remarkable results. “Opening up to the outside world to push forward one step, foreign-related rule of law construction should follow one step”. The enactment of the Interpretation is an important measure for the people’s courts to fully implement the spirit of the Twentieth National Congress of the CPC, to study and implement in-depth the spirit of the important speeches made by President Xi Jinping, and to actively participate in the construction of a foreign-related legal system, which provides an important basis for the steady expansion of systematic opening-up.

Secondly, the formulation of the Interpretation is a concrete practice of firmly upholding the international order based on international law and promoting the rule of law in international relations. “Pacta sunt servanda” is a fundamental principle in treaty law. Article 26 of the Vienna Convention on the Law of Treaties stipulates: “Every treaty in force is binding upon the parties thereto and must be performed by them in good faith.” The issuance of the Interpretation fully demonstrates China’s good image of actively fulfilling its international obligations, highlights China’s commitment as a major country to firmly upholding the international order based on international law, and is conducive to enhancing China’s right to speak and influence in the transformation of the global governance system.

Thirdly, the enactment of the Interpretation is an important guarantee for the accurate application of international treaties and international practices and the enhancement of the quality and efficiency of foreign-related trials. The Interpretation regulates and guides how to accurately grasp the conditions and scope of application of international treaties and international practices, provides the people’s courts with a basis for correctly adjudicating foreign-related civil and commercial cases, effectively unifies the standards for the application of the law, and is of great significance in enhancing the quality and efficiency of China’s foreign-related civil and commercial adjudications, expanding the international credibility and influence of China’s judiciary, and creating a first-rate business environment characterized by the rule of law, internationalization and marketization.

The main content of the Interpretation

The Interpretation consists of nine articles, embodying three principles for the application of international treaties and international practices in foreign-related civil and commercial trials, namely, the principle of fulfilling treaty obligations in good faith, the principle of respecting international practices, and the principle of safeguarding national sovereignty, security, and social public interests. The main contents include:

First, the basis of adjudication for the application of international treaties should be clarified. Article 30 of the Foreign Relations Law of the People’s Republic of China clearly stipulates: “The State concludes or participates in treaties and agreements in accordance with the Constitution and the law, and performs in good faith the obligations stipulated in the relevant treaties and agreements.” According to the characteristics of international treaties in the field of civil and commercial affairs in adjusting the personal and property relations between equal subjects, and based on the principle of good faith performance stipulated in the Foreign Relations Law, Paragraph 2 of Article 1 of the Interpretation makes it clear that foreign-related civil and commercial cases outside the scope of adjustment of the maritime law, bill of lading law, civil aviation law, maritime traffic safety law, etc. shall apply international treaties in the manner of “referring to the provisions of the separate law”. This effectively solves the problem of insufficient basis for adjudication in the field of foreign-related civil and commercial affairs in the application of international treaties; at the same time, it inherits the spirit of the former General Principles of Civil Law and makes it clear that where international treaties concluded or participated by China have different provisions from those of the laws of the People’s Republic of China, the provisions of the international treaties shall be applied, with the exception of the provisions for which the People’s Republic of China has declared its reservation.

Secondly, it clarifies the principle of application when multiple international treaties are involved. In response to the situation in judicial practice where the same dispute involves two or more international treaties, Article 2 of the Interpretation stipulates that the People’s Court shall determine the international treaty to be applied on the basis of the applicable relationship clause in the international treaty.

Thirdly, the relationship between the application of international treaties and party autonomy should be clarified. Among the international treaties to be applied in foreign-related civil and commercial relations, some international treaties allow the parties to exclude the application of the convention or change the effect of the application of its provisions by agreement, but there are also some international treaties that are mandatory in the application and do not allow the parties to exclude their application by agreement. Article 3 of the Interpretation makes it clear that the parties may exclude or partially exclude the application of an international treaty by agreement only to the extent permitted by the international treaty.

Fourthly, it is clear that if the parties invoke an international treaty that has not yet entered into force for China, it can be used as a basis for determining contractual rights and obligations. International treaties that have not yet entered into force for China cannot be used as a legal basis for the people’s courts to make decisions. However, if the parties in the contract unanimously invoke provisions of a civil and commercial international treaty that China has not ratified to determine the relevant rights and obligations, the provisions should be deemed as part of the parties’ contract. Article 4 of the Interpretation allows the People’s Court to use the treaty as a basis for determining the rights and obligations of the parties to the contract, on the premise that does not violate China’s laws, administrative regulations of the mandatory provisions of China’s sovereignty, social security and public interests.

Fifthly, it clarifies the express optional application and gap-filling application of international practice. Articles 5 and 6 of the Interpretation provide for two types of application of international practice. On the one hand, where the parties have expressly opted for the application of international practice, the rights and obligations between the parties to the contract can be directly determined in accordance with international practice. On the other hand, where the parties have not made a clear choice, and where there is no corresponding provision in the laws of China or in international treaties concluded or participated in by China, the People’s Court may apply international practice.

Sixthly, it adheres to the principle of safeguarding State sovereignty, security, and social public interests. The Interpretation carries out the provisions of Article 31 of the Foreign Relations Law that the implementation and application of treaties and agreements shall not jeopardize national sovereignty, security, and social public interests, and makes it clear in Article 7 that “the People’s Court shall not apply an international treaty or international practice if its application jeopardizes the sovereignty, security, and social public interests of the People’s Republic of China”. This fully demonstrates the clear judicial position of the people’s courts in firmly safeguarding State sovereignty, security, and the public interests of society.

Actions to promote the implementation of the interpretation

After the promulgation of the Interpretation, the Supreme People’s Court will also carry out work in the following areas to promote the implementation of the Interpretation:

Firstly, SPC will issue a publication on the understanding and application of the Interpretation, so as to make it easier for all sectors of the community to accurately grasp the meaning of the provisions of the Interpretation.

Secondly, SPC will compile international treaties and international practices and their authoritative translations, sorting out the conditions of application, entry into force and reservations, etc., so as to guarantee the accurate application of international treaties and international practices.

Thirdly, SPC has strengthened case guidance and regularly issued typical cases on the application of international treaties and international practices to standardize adjudication criteria.

Lastly, strengthening training will be carried out to enhance the awareness and ability of foreign-related commercial maritime judges in applying international treaties and international practices.

Translators’ Comments

The issuance of the Interpretation demonstrates the Supreme People’s Court’s insistence on promoting the rule of law at the domestic level and the rule of law relating to foreign affairs in an integrated manner, actively and accurately applying international treaties and international practices in civil and commercial trials relating to foreign affairs, ensuring that the internationally accepted rules are effectively complied with and vigorously demonstrating China’s international image as a country that adheres to reform, opening-up and multilateralism, and contributing to China’s rule of law wisdom and strength for the reform and construction of the global governance system.

*Dr. Du Tao, Professor at the East China University of Political Science and Law, Shanghai, China, waiguofa@126.com

**Yang Zhenni, Graduate student of East China University of Political Science and Law, yzn0810@163.com

There is no doubt that private international law works in close cooperation with comparative law. Horatia Muir Watt, for example, characterises the relationship between the two disciplines as “complementary” (H M Watt, “Private International Law”, in J M. Smits (ed.), Elgar Encyclopedia of Comparative Law (2nd ed., Edward Elgar Publishing, 2012) p. 701). Similarly, Mathias Reimann describes it as “intimate” (M Reimann, “Comparative Law and Private International Law”, in M Reimann and R Zimmermann (eds.), The Oxford Handbook of Comparative Law (2nd ed., OUP, 2019) p. 1340). Meanwhile, Ralf Michaels, another distinguished scholar of comparative and private international law scholar, considers that “in private international law scholarship, comparison has always been prominent” (Ralf Michaels, “Comparative Law and Private International Law”, in J Basedow et al. (eds.), Encyclopedia of Private International law –Volume I (Edward Elgar Publishing, 2017) p. 416).

Understanding foreign legal systems and the diversity of the solutions dealing with common problems and issues enables private international law scholars and researchers to refine the techniques and theories of private international law, which ultimately serves one of the most important goals of private international law: the coordination of different legal systems.

This elaborate introduction serves to justify the announcement on this blog regarding the recently published Cambridge Handbook of Comparative Law (CUP, 2024), edited by Mathias Siems (European University Institute, Florence) and Po Jen Yap (The University of Hong Kong).

The book’s description reads as follows:

Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed ‘the era of comparative law’. This Cambridge Handbook of Comparative Law presents a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on how we understand the ‘law’ and how it operates in practice. In substance, the Handbook contains 36 chapters covering a broad range of topics, divided under the following headings: ‘Methods of Comparative Law’ (Part I), ‘Legal Families and Geographical Comparisons’ (Part II), ‘Central Themes in Comparative Law’ (Part III); and ‘Comparative Law beyond the State’ (Part IV).

The book’s table of content is accessible here.

One can read with a lot of interest the contribution of Yuko Nishitani (Kyoto University) in this book on “Comparative Conflict of Laws” (pp. 674-692). The chapter’s summary is as follows:

Conflict of laws (or private international law) deals with cross-border legal relationships involving private parties. Methods of modern conflict of laws originate in Europe and largely remained intact until today despite modifications brought about by the US Conflicts Revolution. Other parts of the world, that is, Latin America, Asia and Africa, have not been on the centre stage. Even the recent globalisation discourse on legal pluralism and conflict of laws has principally focused on Western, developed countries, although the wave of globalisation affects the entire world. Countries in the Global South have been invisible presumably because, as former colonies, they are not readily accessible, are presumed not to have sophisticated conflicts rules, or are deselected by the choice of forum/arbitration clauses in cross-border business transactions. This chapter will deal with comparative conflict of laws from a non-Western viewpoint. This stance will allow for the relativising of the trends of conflict of laws in Europe and America and shed light on the recent debates on corporate due diligence and Sustainable Development Goals (SDGs) in conflict of laws by considering interests of the most affected and vulnerable people in the Global South. This chapter will also discuss future developments of conflict of laws treaties, which Asian and African countries have rarely joined so far.

Hart Studies in Private International Law – Asia has officially released its 9th Volume in the Series as an open-access book. This edition, edited by Olivier Gaillard and Krista Nadakavukaren Schefer, is titled Private International Law in East Asia: From Imitation to Innovation and Exportation (Hart Publishing, 2024).

The description of the book reads as follows:

This open access book examines the conflict of law rules in East Asian states. With a focus on the laws in Mainland China, Japan and South Korea, the book also looks at the rules of Hong Kong and Taiwan.

Written in an easily accessible style, the book is a valuable resource for scholars as well as practitioners of East Asian law, private international law, and comparative law.

The table of Contents features the following papers: 

1. Introduction, Krista Nadakavukaren Schefer (Swiss Institute of Comparative Law, Switzerland) and Jun Zheng (University of Fribourg, Switzerland)

   Part 1: General Overview of Legal Regimes

2. Introduction to the Law of the People’s Republic of China, Harro von Senger (Swiss Institute of Comparative Law, Switzerland)

3. The Structure and General Principles of Japanese Law, Béatrice Jaluzot (Institut d’Asie Orientale, France)

4. Legal Transfer and Law in Transition: Compulsory Share in Korean and Japanese Law, Marie Seong-Hak Kim (Minneapolis, USA)

5. Influence of Japanese Law on Taiwanese Law, Ying-Hsin Tsai (National Taiwan University)

   Part 2: Rules on Private International Law

6. On the Process of China’s Private International Law in the Past Decade, Jin Huang (China University of Political Science and Law)

7. New Developments of Private International Law in Japan and East Asia, Yuko Nishitani (Kyoto University, Japan)

8. Private International Law Developments in Hong Kong, Wilson Lui (University of Hong Kong)

9. New Developments in Korean Private International Law, Jong Hyeok Lee (Seoul National University, South Korea)

   Part 3: Relations of Courts

10. Choice-of-Court Agreements in Japanese Conflict of Laws, Dai Yokomizo (Nagoya University, Japan)

11. The 1965 Basic Treaty: An Obstacle to ‘Normal’ Relations between South Korea and Japan? Samuel Guex (University of Geneva, Switzerland)

    Part 4: Family and Succession Law

12. New Developments in Chinese Private International Law in the Area of International Family Law: 12 Years after the Entry into Force of the Chinese PIL Act, Weizuo Chen (Tsinghua University, China)

13. Some Recent Issues in Family Law and International Family Law in Japan, Mari Nagata (Osaka University, Japan)

14. The Applicable Law in Succession Matters in China, Japan and South Korea: The Professio Iuris as a Bridge? Olivier Gaillard (Swiss Institute of Comparative Law, Switzerland)

15. Conclusions, Olivier Gaillard (Swiss Institute of Comparative Law, Switzerland)

February 2024 will be a busy month at the Court of Justice.

A hearing took already place on 1 February in case C-394/22, Oilchart International, a request for a preliminary ruling on the delimitation of Regulation Brussels I bis and Regulation 1346/2000, as well as on the compatibility with the latter of specific Dutch provisions. The Hof van beroep te Antwerpen (Belgium) is asking the Court:

(a) Must Article 1(2)(b) of the Brussels Ia Regulation in conjunction with Article 3(1) of the Insolvency Regulation be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’) and whereby:

– it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW),

– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The national proceedings concern a claim for the payment of an invoice still pending when the debtor became insolvent. Due to the provisions contained in bank guarantees, the claim was brought before a Belgian court. The case has been assigned to a chamber of five judges (A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting). AG L. Medina will provide an opinion in due course.

On 8 February AG M. Szpunar will deliver his opinion in C-633/22, Real Madrid Club de Fútbol. I reported on this Grand Chamber case and on the hearing held in October 2023 here. At stake is the interpretation of the Brussels I Regulation in relation to the Charter of Fundamental Rights of the EU.

The opinion of AG M. Campos Sánchez-Bordona in case C-35/23, Greislzel, will be read as well on 8 February 2024. The request, from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), focuses on the interpretation of Articles 10 and 11 of the Brussels II bis Regulation:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States?

More specifically:

1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?

3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

Like in many child abduction settings, the facts of the case are convoluted and not easy to summarize. In a nutshell, the problem revolves around the (allegedly wrongful) removal of a child from Germany to Poland by her mother. The father has lodged a request for return under the 1980 Hague Convention on Child Abduction, first, and then in the framework of a claim for the transfer of the sole parental custody under the Brussels II bis Regulation . The peculiarity of the case lies with the fact that, because he lives in Switzerland, both attempts focus in an order that would send the child to that country, and not to the Member State where she was habitually resident immediately before the wrongful removal.

The case will be solved by judges C. Lycourgos, O. Spineanu-Matei, J.C. Bonichot, S. Rodin, and L.S. Rossi (reporting).

The opinion of AG N. Emiliou on C-425/22, MOL, will be published as well on 8 February. The referring court is the Kúria (Hungary). The questions are:

1.   Where a parent company brings an action for damages in respect of the anti-competitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of 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 (‘the Brussels Ia Regulation’)?

2. Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of the Brussels Ia Regulation?

The main proceedings are a follow-on action based on a final decision of the European Commission, where it is established that, by colluding on gross list pricing for medium and heavy trucks in the European Economic Area, the defendant, established in Germany, together with other companies, had participated in a cartel in continuous infringement of the prohibitions laid down in Article 101 TFUE and Article 53 of the Agreement on the European Economic Area. The claimant requests the reimbursement of the additional cost paid by its subsidiaries for the indirect purchase of 71 trucks from the defendant, in different Member States. The case raises the question of whether, in the context of Article 7 (2), of the Brussels I bis Regulation, a parent company can invoke the theory of economic unity for the purposes of determining the competent court for an action for the damage suffered by its subsidiaries.

M. Ilešič is the reporting judge in a chamber comprising as well E. Regan, K. Lenaerts, I. Jarukaitis and D. Gratsias.

Finally, the decision of the 1st Chamber (composed by judges A. Arabadjiev, T. von Danwitz, P.G. Xuereb, I. Ziemele and A. Kumin, with the latter reporting) in case C-566/22, Inkreal will be published on the same day. The requests addresses the interpretation of the Brussels Ibis Regulation and its scope of application. AG J. Richard de la Tour had delivered his opinion October last year: see here.

Two further opinions and a decision will be delivered on Thursday 22 February, thus after the ‘semaine blanche’.

AG N. Emiliou is the author of the opinion in case C-774/22, FTI Touristik, a request from the Amtsgericht Nürnberg (Germany) on Article 18 of the Brussels Ibis Regulation:

Is Article 18(1) of 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 18(1) of the Brussels I Regulation) to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The applicant is a traveler, domiciled in Nuremberg at all relevant times, who had booked a package tour with the defendant, a tour operator established in Munich, through a travel agency. The travel agent acted as an intermediary in the conclusion of the contract and it is undisputed that it is not itself a contracting partner; it is also not a branch of the defendant. The applicant claims from the defendant payment of compensation amounting to EUR 1,499.86 on account of the fact that he was not adequately informed of the necessary entry and visa requirements.

The case will be solved by a chamber of five judges – A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting.

Another AG N. Emiliou’s opinion is expected on the same day, this time in case C-339/22, BSH Hausgeräte, on Article 24 (4) of the Brussels Ibis Regulation. It was originally scheduled for November 2023 and I already reported about the case then.

Finally, the 9th Chamber (J.C. Bonichot, L.S. Rossi, and  O. Spineanu-Matei reporting) will render its decision on C-81/23, FCA Italy et FPT Industrial also on 22 February. The referring court is requesting the interpretation of Article 7 of the Brussels I bis Regulation in a clear follow-up on case C‑343/19, VKI. In the Austrian proceedings the applicant, whose domicile is in Krems an der Donau (Austria) purchased a camper van from the dealer established in Germany. The written sale contract was signed at the seller’s seat in Germany. In accordance with the agreement concluded, the vehicle was transferred to the applicant and his wife by the Austrian seller’s distribution centre in Salzburg (Austria). The first respondent, established in Italy, is the manufacturer of the basic vehicle; the second respondent, also established in Italy, developed the engine, which, according to the applicant’s claims in the main proceedings, is equipped with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval.

The Oberster Gerichtshof (Austria) asks the Court in Luxembourg:

Must point 2 of Article 7 of 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 (‘Regulation (EU) No 1215/2012’) be interpreted as meaning that, in an action for tortious liability against the developer of a diesel engine with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval, the place where the harmful event occurred in a case where the vehicle was bought by the applicant domiciled in Member State B (in this case: Austria) from a third party established in Member State C (in this case: Germany) is

a) the place where the contract was concluded;

b) the place where the vehicle was delivered, or

c) the place where the physical defect constituting the damage occurred and, therefore, the place where the vehicle is normally used?

Introduction:

I have been reporting on this blog some recent cases from the Dubai Supreme Court (DSC) regarding the recognition and enforcement of foreign judgments (see here, here and here). Reading these posts may have given the legitimate impression that the enforcement of foreign judgments in the UAE, and especially in Dubai, is particularly challenging. This post aims to mitigate that perception by shedding light on a very recent case in which the Dubai courts, with the approval of the DSC, ruled in favor of the enforcement of an English judgment. As the comments below indicate, this is probably the very first case in which the DSC has positively ruled  in favor of the enforcement of an English judgment by declaring that the judgment in question met all the requirements set out in UAE law, and in particular, the reciprocity requirement.

The facts:

As mentioned above, this case concerns the enforcement of an English judgment. In that judgment, the English court ordered the division and transfer of property as part of the distribution of matrimonial property on divorce. However, some of the disputed properties concerned two immovables located in Dubai. The underlying dispute before the English court appears to involve a British national (the wife and petitioner in the Dubai proceedings, hereinafter “X”) and a Pakistani national (the respondent husband, hereinafter “Y”). The parties entered into their marriage in Pakistan in accordance with Pakistani law. The marriage was later registered in the UK “after a long period of time” since its conclusion.

According to the DSC’s decision, the English judgment recorded Y’s “consent” to transfer the two aforementioned disputed properties to X under the Matrimonial Causes Act 1973 (but erroneously referred to it as “Matrimonial Causes Act 1937”). Subsequently, X sought to enforce the English judgment in the UAE by filing a petition to that effect with the Dubai Execution Court. The Execution Court granted the petition and ordered the enforcement of the English judgment. The decision was confirmed on appeal.

Y appealed to the DSC.

Before the DSC, Y contested the appealed decision mainly on the following grounds:

1) The case falls within the jurisdiction of the Dubai courts as the court of the place where the property is located, because the case concerns in rem rights relating to the transfer of ownership of immovable property located in Dubai, notwithstanding the fact that the foreign judgment was rendered in a personal status dispute concerning the financial effects of a divorce under English law.

2) The foreign judgment is contrary to public policy because it violates Islamic Sharia law, individual property rights and the distribution of property under UAE law.

3) The parties have not (yet) been divorced under Pakistani law or Islamic Sharia.

4) As the marriage was contracted in Pakistan and later registered in the UK, the marriage and its financial effects should be governed by Pakistani law.

Ruling:

In its ruling dated 25 January 2024 (Appeal No. 592/2023), the DSC dismissed the appeal by reasoning as follows:

First, the DSC recalled the legal framework for the enforcement of foreign judgments, citing almost verbatim Article 222 of the new Federal Civil Procedure Act of 2022 (the English translation can be found here). The DSC also recalled that the law applicable to the personal and financial effects of marriage and its dissolution, as well as the impact that public policy and Islamic Sharia may entail on the application of the governing law (articles 13 and 27 the Federal Act on Civil Transactions, as subsequently amended.*)

(* It should be noted, however, that the DSC erroneously cited the provisions in force prior to the 2020 amendment to the Federal Civil Transactions Act. This amendment is important because it replaced the nationality of the husband as a connecting factor with the place where the marriage was concluded in matters relating to the effects and dissolution of the marriage. For a brief commentary on this amendment, see Lena-Maria Möller’s post here on this blog. See also idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessement”, Arab Law Quarterly, Vol. 37 (2023), pp. 5-6. The English translation of the Federal Civil Transactions Law with its latest amendments can be found here).

The DSC then approved the appealed decision in considering that:

– The foreign judgment did not contain a violation of public policy and good morals because it did not violate any undisputed Sharia rule;

– Y, who was a foreign national, had agreed in the English court to transfer the ownership and beneficial interest in the two Dubai properties to X, and therefore the enforcement of the foreign judgment consisted only in carrying out what Y had agreed before the foreign court,

– The dispute did not fall within the exclusive jurisdiction of the Dubai courts,

– Reciprocity was established with the UK.

Finally, the DSC held that the following arguments made by Y were meritless:

– that the dispute fell within the jurisdiction of the Dubai courts. However, the DSC considered that  the case did not concern a dispute over the property located in Dubai, but the transfer of shares in Y’s property to X on the basis of Y’s consent;

– that the law applicable to the marriage and its financial effects should be Pakistani law and not English law because the marriage was contracted in Pakistan and then registered in the UK after a long period of time. However, the DSC considered that the marriage and divorce between X and Y took place in the UK and Y did not contest the application of English law.

Comments:

The case is in many regards…. exceptional. In particular, given the usual challenges associated with the enforcement of foreign judgments in the UAE, it is somewhat interesting to observe how the main obstacles to the enforcement of foreign judgments – notably, reciprocity, indirect jurisdiction and public policy – were easily overcome in the case at hand. (For an overview of past practice with some relevant case law, see the author’s earlier comment here). While these aspects of the case (as well as some others, such as the reference to choice-of-law rules and the surprisingly erroneous reference by the DSC to the nationality of the husband as a connecting factor in matters of effects and dissolution of marriage) deserve detailed analysis, space constraints require that we focus on one notable aspect: reciprocity with the UK.

As mentioned in a previous post, Dubai courts traditionally find reciprocity where the party seeking enforcement demonstrates that the enforcement rules of the rendering state are identical to or less restrictive than those of the UAE. This typically requires the party seeking enforcement to prove the content of the rendering state’s foreign judgment enforcement law for comparison with the UAE’s requirements (see some relevant cases here). In order to alleviate the rigor of this rule and facilitate the enforcement of UK judgments in Dubai, the UAE Ministry of Justice (MOJ) issued a letter on September 13, 2022, stating that reciprocity with the UK could be established as English courts had accepted the enforcement of UAE judgments.

In a previous post, I expressed doubts about the impact of this letter on Dubai court practice, citing instances where the DSC had rejected to enforcement an English judgment. These doubts were somewhat justified. Indeed, in a case that later came to my attention and also involved the enforcement of an English judgment, the DSC reversed and remanded a decision of the Dubai Court of Appeal on the ground, inter alia, that the court failed to consider the existence of reciprocity with the UK. (The Court of Appeal simply held that reciprocity was not a requirement for the enforcement of foreign judgments in the UAE) (DSC, Appeal No. 356/2022 of 7 December 2022). The DSC also criticized the Court of Appeal for failing to address the need for the party seeking enforcement to prove the content of English law on the enforcement of UAE judgments in the UK in order to demonstrate that there is reciprocity with the UK. (The Court of Appeal simply considered that English courts wold not oppose the enforcement of UAE judgments as long as they meet the conditions for their enforcement). Subsequent developments in the case show that the whole issue was somehow avoided, as the Court of Appeal – as the court of remand – dismissed the case on the ground that the appeal was filed out of time. This decision was later upheld by the DSC (Appeal No. 847/2023 of 7 November 2023), which ultimately resulted in the upholding of the initial first instance court’s decision to enforce the English judgment in question. (For details of this case, see the comments posted by one of the lawyers representing the party seeking enforcement of the English judgment, Hesham El Samra, “Enforcing the First Judgment From the English Courts in Dubai Courts (November 17, 2023). One can read with interest how the representatives of the party seeking enforcement relied on the aforementioned MOJ letter to establish reciprocity with the UK).

In the case commented here, it is unclear on what basis the Dubai courts recognized reciprocity with the United Kingdom. Indeed, the DSC merely upheld the Court of Appeal’s conclusion that “reciprocity with the UK was established”. It is likely, however, that the courts relied on the MOJ letter to reach this conclusion. In any event, as noted in the introduction, this case represents the first Supreme Court decision explicitly recognizing reciprocity with the UK. This development is likely to have a significant impact on the enforcement of English judgments in Dubai and the UAE. One can also expect that this decision may influence the assessment of reciprocity requirements where enforcement of foreign judgments in general is sought in Dubai/UAE.

The fourth edition of Geert van Calster’s (KU Leuven) European Private International Law has just been published by Hart/Bloomsbury. It focuses on those instruments and developments that are most significant in commercial litigation. I had the privilege to review the first edition of the book in the Law Quarterly Review and I am certain that the latest edition will live up to the expectations.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Written by Mayela Celis

Undoubtedly, Abortion is a hot topic. It is discussed in the news media and is the subject of heated political debate. Indeed, just when one thinks the matter is settled, it comes up again. In 2023, Elgar published the book entitled “Research Handbook on International Abortion Law”, ed. Mary Ziegler (Cheltenham: Edward Elgar Publishing Limited, 2023). For more information, click here. Although under a somewhat misleading name as it refers to international abortion law, this book provides a wonderful comparative overview of national abortion laws as regulated by States from all the four corners of the world and internal practices, as well as an analysis of human rights law.

This book does not deal with the conflict of laws that may arise under this topic. For a more detailed discussion, please refer to the post Singer on Conflict of Abortion Laws (in the U.S.) published on the blog of the European Association of Private International Law.

In this book review, I will briefly summarise 6 parts of this book (excluding the introduction) and will provide my views at the end.

This book is divided into 7 parts:

Part I – Introduction

Part II – Histories of liberalization

Part III – The promise and limits of decriminalization

Part IV – Abortion in popular politics

Part V – Movements against abortion

Part VI – Race, sex and religion

Part VII – The role of international human rights

Part II – Histories of Liberalization

Part II begins with a historical journey of the abortion reform in Sweden in the 1930s and 1940s. It highlights the limited legalization of abortion in Sweden in 1938 and the revised abortion law in 1946 introducing a “socialmedical” indication. In particular, it underscores how the voices of women were absent from the process.

It then moves on to a comparative study of the history of abortion in the USA and Canada from 1800 to 1970, that is before Roe (USA) and Morgentaler (Canada). It analyses the distinct approaches of Canada and the USA when dealing with abortion (legislative vs. court-based). Furthermore, it provides a very interesting historical account on how the right of abortion came about in both countries – it sets the stage for Roe v. Wade (pp. 50-52).

Finally, Part II examines the situation in South Africa by calling it “unfinished business”. In South Africa, Abortion is a right codified in law: The Choice on Termination of Pregnancy Act 92 of 1996. However, this article argues that the legislative response is not enough. Factors such as lack of enough health facilities that perform abortions, gender inequality etc. are an obstacle to making safe abortion a reality.

Part III – The promise and limits of decriminalization

This Part analyses several laws regarding abortion. First, it explores Malawi’s 160-year-old law that criminalises abortion based on a UK law, as well as the failed tentative attempt to adopt a new law in 2020. Interestingly, this article analyses CEDAW resolutions against the UK, which promptly complied with the resolution (pp. 92-93).

Secondly, it studies the recently adopted law in Thailand on 7 February 2021 that makes  abortion available up to 12 weeks’ gestation period. However, this article criticises that the law creates a loophole as the abortion must be performed by a physician or a registered medical facility and in compliance with the law, greatly medicalizing abortion.

Finally, this Part examines Australian laws and policy over the past 20 years and while acknowledging the significant advances in reproductive rights, it notes that a number of barriers to abortion still remain. This chapter is better read in conjunction with Chapter 10, also about Australia.

Part IV – Abortion in popular politics

This Part begins with an excellent comparative public policy study between France and the United States. In particular, it discusses the weaknesses of Roe v. Wade, underlining the role and analysis of the late justice Ruth Bader Ginsburg. It also puts into context the superiority of the French approach regarding abortion, which is proven with the reversal of Roe.

It then analyses abortion law in China, a State that has the most lenient abortion policies in the world. It discusses the Chinese one-child policy, which then changed to two and even three children-policy, as well as sex-selective abortions.

Subsequently, it recounts how South Australia became the last Australian jurisdiction to modernise its abortion laws and underlines the fact that laws in Australian jurisdictions on this topic are uneven and no two laws are the same.

Finally, it examines abortion history in Israel noting that apart from health reasons, abortions on no specific grounds are mainly intended for out-of-wedlock pregnancies. As a result, abortion is restricted to married women unless they claim adultery, a ground that must be reviewed by a Committee. Apparently, this leads married women to lie to get an abortion and go through the shameful process of getting approval by a Committee.

Part V – Movements against abortion

This Part begins with abortion politics in Brazil and the backlash that occurred with the government of former president Bolsonaro who, as is well known, is against abortion. It recounts a case where a priest filed an habeas corpus in favour of a foetus who had a severe birth defect. Although the case arrived at the Federal Supreme Court, it was not decided as the child died 7 minutes after being born (p. 232).

Secondly, a history scholar recounts the pro-life movement across continents and analyses what drives them (i.e. gender and religion).

Finally, it deals with abortion law in Poland and Hungary and the impact of illiberal courts. In particular, it discusses the trends against abortion and goes on to explain an interesting concept of “illiberal constitutionalism”. The authors argue that they do not see Poland and Hungary as authoritarian systems but as illiberal States, an undoubtedly interesting concept.

Part VI – Race, sex and religion

This Part begins examining the sex-selective abortions in India. In particular, the authors recommend an equality-based approach instead of anti-discriminatory approach in order to avoid recognising personhood to the foetus.

It then continues with an analysis of abortion law in the Arab world. The authors note that there is scant but emerging literature and that abortion laws in this region are – unsurprisingly – punitive or very restrictive. Interestingly, the position of Tunisia differs from other Arab States.

Finally, it discusses the struggles in Ecuador where a decision of the constitutional court of 2021 decriminalising abortion in cases of rape. It declared unconstitutional an article of the Ecuadorian Criminal Code, and in 2022 the legislature approved a bill based on this ruling. It also refers to teenage pregnancy and violence.

Part VII – The role of international human rights

For those interested in international human rights, this will be the most fascinating Part of the book. Part VII calls for the decriminalization of abortion in all circumstances and it supports this argument by making reference to several human rights documents such as those issued by the Human Rights Committee (in particular, General Comment No 36 –  Article 6: Right to life) and the Committee on the Elimination of Discrimination against Women (referring to a myriad of general comments and concluding observations).

Subsequently, this Part challenges the classification of European abortion law as fairly liberal and provides some convincing arguments (including the setbacks in Poland in this regard and other procedural or legal barriers to access abortion in more liberal States) and some surprising facts such as the practice in the Netherlands (see footnote 60). The authors -fortunately- dared to say that this chapter is drafted from a feminist perspective as opposed to the current “male norm” in legal doctrinal scholarship.

Finally, this Part explains the history of abortion laws including the fascinating recent developments in Argentina and Ireland (referred to as “small island”!) and the influence (or the lack thereof) of international human rights law. In particular, it makes reference to the Argentinian Law 27,610 of 2020 (now unfortunately in peril with the new government) and the repealing by referendum of the 8th Amendment in Ireland in 2018.

Below are a few personal thoughts and conclusions that particularly struck me from the book:

Starting from the beginning: the title of the book and the definitions.

In my view, and as I previously mentioned, the title of the book is somewhat misleading. Strictly speaking, there is no such thing as “international” abortion law but rather abortion prompts a discussion of international human rights, such as women’s rights and the right to life, and whether or not national laws are compliant with these rights or are coherent within their own national legal framework. This is in contrast to international child abduction / adoption laws where international treaties regulate those very topics.

While perhaps counterintuitive, the definition of a “woman” has been controversial; see for example the Australian versus the Thai approaches. The Australian approach deals with gender identification and the fact that persons who do not identify as a woman can become pregnant (p. 124, footnote 1). While the Thai approach defines a woman as those capable of bearing children (p. 112). Needless to say, the definition of a woman is essential when legislating on abortion and unavoidably reflects the cultural and political complexities of a particular society. A brief reference is made to men and gender non-conforming people and their access to abortion (p. 374, footnote 2).

A surprising fact is the pervasive sex-selective abortion in some countries (sadly against female foetuses), such as India and China, and which arguments are invoked by scholars to avoid them, without falling into the “trap” of recognising personhood to the foetus.

More importantly, this book shows that the abortion discussion is much more than the polarised “pro-life” and “pro-choice” movements. The history of abortion is complicated, full of intricacies. And what is frustrating to some, this area is rapidly evolving sometimes at the whim of political parties.

Most authors seem to agree that a legislative approach to abortion is more recommended than a court-based approach. Indeed, there is a preference for democratically elected lawmakers when it comes to dealing with abortion. This is evident from the recent setbacks that occurred in the USA.

Having said that, those expecting an in-depth analysis of the landmark US decision Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022), which overturned Roe v. Wade, will be disappointed (only referred to very briefly in the introduction and Chapters 8, 11 and 13 ). Instead, however, you will be able to immerse yourself into a multidisciplinary study of abortion law, including topics such as politics, sociology, constitutional law, health law and policy, history, etc. In addition, you will read unexpected facts such as the role of Pierre Trudeau (former Prime Minister (PM) of Canada and father of current Canadian PM, Justin Trudeau – p. 56 et seq.) in abortion law in Canada or the delivering of abortion pills via drones (p. 393).

Because of all the foregoing, and whatever one’s standpoint on abortion is, I fully recommend this book. But perhaps a cautionary note: people in favour of reproductive rights will be able to enjoy the book more fully.

I would like to end this book review with the words of the French writer and philosopher Simone de Beauvoir, which appear in her book entitled the Second Sex and which are also included in chapter 8 (p. 159) of this book:

“Never forget that a political, economic or religious crisis would suffice to call women’s rights into question”

Full citation:

“Rien n’est jamais définitivement acquis. Il suffira d’une crise politique, économique ou religieuse pour que les droits des femmes soient remis en question. Votre vie durant, vous devrez rester vigilantes.”

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid  and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The selected researcher is supposed to pursue her/his research project in the field of European Law (including European Private International Law and  International Civil Procedure). She/he is also expected to interact with  the group of young researchers, who all work on their dissertation  projects within the thematic framework of harmonization and plurality  tendencies in the EU.

The position is targeting German-speaking researchers. More information available here.

Conventions & Instruments

On 1 December 2023, the 1965 Service Convention entered into force for Singapore. The Convention currently has 82 Contracting Parties. More information is available here.

On 1 January 2024, the 1965 Service Convention entered into force for Paraguay. The Convention currently has 82 Contracting Parties. More information is available here.

On 9 January 2024, Cabo Verde deposited its instrument of accession to the 2007 Child Support Convention. With the accession of Cabo Verde, 49 States and the European Union are bound by the Convention. More information is available here.

On 11 January 2024, the 1961 Apostille Convention entered into force for Canada. The Convention currently has 126 Contracting Parties. More information is available here.

On 12 January 2024, the United Kingdom signed the 2019 Judgments Convention. The Convention will enter into force for the United Kingdom only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). Currently, 29 HCCH Members are either bound by the 2019 Judgments Convention or a Contracting Party for which the Convention has not yet entered into force (Uruguay). More information is available here.

Meetings & Events

From 24 to 26 January 2024, the Working Group on the Financial Aspects of Intercountry Adoption met for the second time. Its mandate is to take stock of current practices, identify possible coordinated, targeted, practical approaches, and to prioritise them with the understanding that the objective would be to raise standards using the HCCH Guides to Good Practice and the Note on the Financial Aspects of Intercountry Adoption as the starting point. More information is available here.

From 29 to 31 January 2024, the International Transfer of Maintenance Funds Experts’ Group met for the fifth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments.

Publications

On 22 January 2024, the Permanent Bureau announced the publication of the Spanish translation of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. This publication aims to assist Contracting Parties to the 1993 Adoption Convention, as well as all actors and persons involved in adoption, to properly implement and operate the Convention. More information is available here.

Other

On 9 January 2024, messages were transmitted digitally from State to State via iSupport for the first time. Several official messages under the EU 2009 Maintenance Regulation were exchanged between Germany and Sweden using iSupport’s e-CODEX system. 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.

René Jansen (former PhD Candidate at Tilburg University) has accepted the invitation of the editors of the blog to present his book, titled ‘Legal Privilege and Transnational Evidence-Taking – A Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege’, published by Intersentia. The study is available in open access here. For the (revised) commercial edition, see here.

Nowadays, lawyers also represent foreign clients. They can, for instance, do so by telephone or e-mail, or during a short visit abroad. Furthermore, a lawyer can choose to work in a foreign country for a longer period of time, for instance as a legal adviser or an in-house counsel. Finally, a lawyer – who has been already admitted to the bar of his home state – could obtain the required qualifications for representing his clients in a foreign court.

In this study, the following research question is centralised: “To what extent may courts order the disclosure of information that is privileged according to a foreign state’s rules on legal privilege, and should they apply a different conflict rule for determining the applicable privilege law when making this assessment?”.

This study touches upon a problem that has also been witnessed in case law. At the same time, literature nor case law clarifies how courts should respond in reaction to a litigant’s request for disclosing information that has been shared between an opponent and her foreign lawyer during civil proceedings. This may cause legal uncertainty. For example, may the court grant the request? If so, which state’s rules on legal privilege should it apply, that of the forum state or a foreign state? And does it make a difference whether the disclosure-request is made during commenced proceedings, or in light of a contemplated procedure?

In this study, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In  the third chapter, I describe how in each of the examined legal systems (Dutch, English, French, German and U.S. federal) the court in principle has the authority to grant such a disclosure order. In the fourth chapter, I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure, whilst also addressing Article 35 of the Brussels I bis Regulation. In the fifth chapter the differences that exist between the rules on legal privilege of the examined legal systems are presented, whereas the sixth chapter explores the possibility of constructing a new conflict rule for the type of cases that this study examines.

The most important findings are the following. There are various methods for taking evidence during transnational civil proceedings. Litigants could make use of differences that exist between these methods for circumventing restrictions on disclosing information under foreign law. For instance, a litigant could initiate proceedings in a state which laws offers the lowest level of legal privilege protection. If a court in that state subsequently applies the forum state’s rules on legal privilege, information could be obtained that is protected against disclosure according to foreign law.

I therefore plead that courts should apply a newly-constructed conflict rule for determining the applicable law on legal privilege during transnational civil litigation, in case a litigant attempts to obtain information that has been shared between an opponent and the latter’s foreign lawyer. In principle, the conflict rule aligns with the state’s laws where the lawyer habitually works. The conflict rule also contains a number of alternative rules for certain situations, such as when the lawyer has operated within an international team of lawyers.

The University of Antwerp has opened a vacancy for PhD research, which inter alia relates to EU private international law, under the supervision of Johan Meeusen and Mathieu Leloup.

It concerns a four year doctoral scholarship, sponsored by the Research Foundation – Flanders (FWO), to write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments.

All information on this position, and how to apply for it, can be found at Doctoral scholarship holder the law of the European Union, with particular attention for the rule of law, mutual trust and the area of freedom, security and justice | University of Antwerp (uantwerpen.be).

Yesterday, a new private international law open access article was published online in the Journal of the History of International Law. It is titled: León Castellanos-Jankiewicz, “A New History for Human Rights: Conflict of Laws as Adjacent Possibility.” The abstract reads as follows:

The pivotal contributions of private international law to the conceptual emergence of international human rights law have been largely ignored. Using the idea of adjacent possibility as a theoretical metaphor, this article shows that conflict of laws analysis and technique enabled the articulation of human rights universalism. The nineteenth-century epistemic practice of private international law was a key arena where the claims of individuals were incrementally cast as being spatially independent from their state of nationality before rights universalism became mainstream. Conflict of laws was thus a vital combinatorial ingredient contributing to the dislocation of rights from territory that underwrites international human rights today.

It is worth noting that the author states that in the acknowledgement that: “An earlier version of this article was awarded the inaugural David D. Caron Prize by the American Society of International Law during its 2019 Annual Meeting held in Washington D.C.”

The Paris-Saclay University and the law firm Linklaters LLP, in collaboration with Saint-Joseph University in Beirut, are organizing a competition on private international law  – Concours de Droit international privé (CDIP).

CDIP is designed for students of the first year of the master degree. The language of the competition is French.

The timetable of the 2024 edition is as follows:

• Beginning of February 2024 – publication of the case;
• Early May 2024 – deadline for responses from French students and selection of teams to take part in the oral part of the competition;
• July 2024 – deadline for the response from Lebanese students;
• Early September 2024 – deadline for the reply from French students;
• end of September 2024 – finals in the international chamber of the Paris Court of Appeal (to be confirmed).

Apart from enriching experiences, the prizes include a three-month internship at Linklaters LLP.

For the history of the competition and its previous editions please consult CDIP website. The webpage will be updated soon to provide further information about 2024 edition.