Droit international général

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 9th CPLJ Webinar on 1 April 2022, 3:00 – 5:00 pm (CET).

The programme reads as follows:

Russell Miller – Senior Research Fellow and Head of Max Planck Law, J.B. Stombock Professor of Law (W&L University – Virginia)

          Comparing Comparisons: A Survey of Approaches to Comparative Law

The webinar is an open event. For more information and to register see here.

(Image credits:  Rijksmuseum, Amsterdam)

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

Werner F. Ebke: Prüfungs- und Beratungsnetzwerke und die Unabhängigkeit des Abschlussprüfers: Versuch einer europarechtskonformen Konturierung des § 319b Abs. 1 Satz 3 HGB

Independence is the cornerstone of the law requiring corporations to have their annual financial statements and consolidated statements audited by independent accountants. To ensure confidence in the audit function, EU Directive 2006/43/EC and EU Directive 2014/56/EU emphasize that statutory auditors and audit firms should be independent when carrying out statutory audits. Accordingly, Member States are required to ensure that an auditor or an audit firm shall not carry out a statutory audit if there is any direct or indirect financial, business, employment or other relationship – including the provision of additional non-audit services – between the statutory auditor, audit firm or network and the audited entity from which an objective, reasonable and informed third party would conclude that the statutory auditor’s or audit firm’s independence is compromised. Building on these two Directives, Regulation (EU) 537/2014 states that a statutory auditor or an audit firm carrying out the statutory audit of a public-interest entity (PIE), or any member of the network to which the statutory auditor or the audit firm belongs, shall not directly or indirectly provide to the audited entity, to its parent company or to its controlled companies within the EU any of the prohibited non-audit services listed in its Article 5. The reference to a “network” takes account of the fact that, since the 1980ies, audit firms are increasingly cooperating with each other, both nationally and internationally, to provide audit and consulting services pursuant to (worldwide) uniform standards close to their clients with highly qualified personell at reasonable costs (economies of scale; regional or global presence). Article 2 No. 7 of EU Directive 2006/43/EC contains a broad defintion of the term “network” which is also applicable within the ambit of Regulation (EU) 537/2014. The German legislature has implemented the definition in § 319b of the Commercial Code (HGB), although not verbatim. After a short desciption of the rules requiring the auditor’s independence (II.), we shall illuminate the legal environment within which § 319b operates (III.). Thereafter, the present essay analyses the term “network”, using the classic means of interpretation of statutes and secondary European law in light of the jurisprudence of the ECJ (IV.). Against this backdrop, the application of § 319b will be examined (V.). A brief summary of the findings will conclude the essay (VI.).

Francesco A. Schurr/Angelika Layr: Emission und Übertragung von DLT-Wertrechten im internationalen Privatrecht Liechtensteins und der Schweiz

The legal scholarly discussion of the last decade has brought to the establishment of various models in the fields of contract law, property law, company law, securities law etc. Thus, various legal problems in these fields of law could be solved. On the contrary, many legal questions regarding the tension between DLT and the conflict of law rules still need to be answered. The present paper intends to contribute to finding answers to these questions and analyses the progressive legislation of Liechtenstein and Switzerland in the fields of Blockchain. In most scenarios analysed in the paper there is a need to rely on a choice of law clause in order to achieve the desired legal certainty.

Marco Lettenbichler: Die Generalversammlung der liechtensteinischen Aktiengesellschaft und die Übertragung von deren Befugnissen auf andere Organe

This article deals with the question whether powers of a general meeting of a Liechtenstein stock corporation are transferable to other organs. According to Art. 338 (3) PGR, the flexible Liechtenstein Persons and Companies Act allows for transferring all tasks assigned by law and by the articles of association to another body. This norm is the subject of this article. It is to be examined whether a full transfer of tasks is compatible with the Liechtenstein legal system. After a legal comparison with Austrian, German and Swiss stock corporation law, it is concluded that there is an inalienable and non-transferable core area of tasks of the general meeting.

WANG Qiang: Optimiert oder nur halbherzig geändert? – Die Erbenhaftung für Nachlassverbindlichkeiten in Chinas neuem Erbrecht im rechtswissenschaftlichen und -terminologischen Vergleich zum deutschen Erbrecht

On May 28th 2020, the People’s Republic of China witnessed the promulgation of its Civil Code after having it put on high political and legislative agenda in the past years. Since its founding in 1949, the PRC have undertaken numerous endeavors to codify its civil law, which finally culminated in this codification. A landmark law of the PRC, the new Civil Code embodies furthermore a significant milestone in China’s legal history, especially of civil law legislation, which, in contrast to its long and turbulent history, had not started until the late Qing-Dynasty (1911). With the Civil Code’s implementation on January 1st, 2021, the leges speciales, which had been drawn upon as essential basis for the seven books of the Civil Code, were replaced by the latter. Expecting comprehensive law renewals fulfilled in the course of the codification, legal scholars in the PRC, especially those of the inheritance law, set great hope on the newly codified inheritance law as an initiative to thoroughly update and improve the old one, which had been in force as lex specialis ever since 1985 and needed urgent reform in numerous aspects. However, the long-expected substantial reform of the outdated inheritance law has failed to materialize. First and foremost, the regulations on the heirs’ liabilities for obligations of the estate, which are comprehensive in content and therefore complicated, but at the same time highly important in legal practice, still remain extremely cursory. The article aims at providing an in-depth analysis of the afore-mentioned regulations stipulated in the newly codified inheritance law in comparing them with those of the German inheritance law. Shedding light nevertheless on the reform achievement of the new inheritance law in certain aspects, this article will probe into the roots of the relevant problems while exploring potential solutions mainly from the legal-technical, legal-systematic and legal-terminological perspective.

This post was contributed by Guillaume Payan, who is Law Professor at the University of Toulon.

Under the direction of its president, Marc Schmitz, the International Union of Judicial Officers (UIHJ) has edited a code, published by Bruylant, on digital enforcement (Global Code of Digital Enforcement). This Global Code was officially presented at the 24th World Congress of this organisation, held in Dubai in November 2021 (as announced here).

The result of the work of the Scientific Council of the UIHJ, this Global Code is an extension of the Global Code of Enforcement published in 2015, dealing with very current issues related to the dematerialization of debtors’ assets.

As designed by the UIHJ, the Global Code of Digital Enforcement is not legally binding. Nevertheless, there is reason to think that it will have concrete consequences in national law and on the work of intergovernmental organisations. It promotes a balanced enforcement system, by defining global enforcement standards that respect fundamental rights.

Although it essentially provides for substantive rules, the issues of private international law are not ignored, in particular regarding the applicable law to enforcement and the international jurisdiction of enforcement agents.

One of the great interests of this publication is to address the interaction between enforcement procedures and the digitalisation of Justice from all its angles. Thus, not only are dematerialised enforcement procedures considered, but also the use of enforcement procedures on digital assets. As such, the issue of the seizure of crypto-assets is dealt with in a very timely manner.

Available in both French and English, the Global Code of Digital Enforcement is structured in 7 parts, which are preceded by a Preamble which clearly sets out the context of the work (“Enforcement in the digital age”).

The first two articles relate to “respect for fundamental rights” and respect for “the ethical principles of digital use”, such as respect for human dignity, non-discrimination or even respect for personal data. This choice must be approved because digitalisation should only be considered as a tool in the service of rights that are prior and superior to it. In other words, this digitalisation should not be an end in itself and can only be conceived with respect for human rights. There are also a series of guarantees aimed at protecting against the risks associated with the use of artificial intelligence. For example, the code establishes a right to appeal to a judge in order to sanction an irregularity, to control the proportionality of an enforcement measure or to compensate a damage. In addition, there are obligations imposed on various parties (e.g. foreign enforcement agents, debtors, third parties) to cooperate in enforcement.

The principle is that identified and accessible digital assets are seized in accordance with the law of their location, in compliance with the principle of territoriality of enforceability. With regard to unidentified or inaccessible digital assets, it is recommended to apply the law of the State that controls or ordered the enforcement.

The main idea here is to allow enforcement agents to use digital tools to carry out their activities. With good reason, the question of access to information on the debtor’s assets is considered in a comprehensive manner (in particular, access to dematerialised registers and the use of drones).

After outlining the general principles (such as the creation of dematerialised seizures, while maintaining physical non-digital seizures), the focus here is also on electronic access to data. To ensure efficiency, the possibility of electronic auctions is established. The rights of the parties are nevertheless preserved based on provisions relating to the security of digital procedures (e.g. secure cross-border communication).

In order to be able to carry out enforcement on digital assets, the procedures for locating and seizing them must be adapted. In this regard, it is specified, for example, that national laws should define seizure procedures adapted to digital assets and regulate their legal regime.

Artificial intelligence is intended to help enforcement agents to assess the appropriate enforcement measures. While guaranteeing the right to appeal to a judge to compensate any damage suffered during an automated enforcement, it is important to allow the enforcement agents the possibility of setting up a “smart enforcement” mechanism. The use of blockchain technology is also key for the enforcement agents, together with the debtor and the creditor, to set up an automated process of compulsory enforcement, particularly when payments are made by cryptocurrency.

Access to crypto-assets and the procedure for seize crypto-assets are successively detailed. For example, it is recommended to create a national crypto-assets register and an obligation for the debtor to declare his crypto-assets to the enforcement agent in charge of enforcement. In addition, a distinction is made between the seizure of crypto-assets in the hands of a third party (e.g. exchange platform) or the seizure in the hands of the debtor.

Written by Mayela Celis, UNED

The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.

We have previously reported on this case here and here.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.” (our emphasis)

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.

This case stems from the fact that there is a split in the US circuits (as well as state courts).

There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.

The amicus brief of the United States stated:

“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”

The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.

As is widely known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.

In my personal opinion, the position taken by the United States is the correct one.

The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.

In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of  provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.

Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”

Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:

See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}

See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)

But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).

Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):

• The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
• A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
• Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
• Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012.

In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).

The VIII Congress of Private International Law of the University Carlos III of Madrid will take place on 12 and 13 May 2022. It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Those interested in presenting a paper are invited to submit the title of the paper and an abstract of a maximum of 800 words before 10 April 2022 at Congresodipr@uc3m.es.

The selected papers may also be published in the online journal Cuadernos de Derecho Transnacional.

Further information on the Congress is available here.

NASAMER Law Blog, by Dr. Nüsret-Semahat Arsel International Business Law Implementation and Research Center at Koç University, is an online platform featuring posts about international business law – defined broadly.

The blog has been launched in January this year with the inaugural piece written by Prof. Dr. Klaus Hopt entitled “Corporate Governance in the International Discussion“. The Academic Advisory Board of the blog is comprised of prominent scholars from the Universities of Oxford, Zürich, Singapore, LSE and Koç University.

The Editorial Board would like to invite submissions in the form of opinion & current awareness pieces discussing recent news and developments such as judgments and legislative changes and research pieces reporting on recently published or forthcoming literature such as journal articles and books, as well as on recent academic events such as conferences and workshops.

More information about the submission rules, the Academic Advisory Board, and the Editorial Board can be found on the blog website. For any inquiries, please do not hesitate to contact the editors via nasamerblog@ku.edu.tr.

It is interesting to imagine the legal position in Lambert v Motor Insurers’ Bureau (Rev1) [2022] EWHC 583 (QB) in a scenario of retained EU law post Brexit, rather than firmly within the scope of the Brussels Ia Regulation and applicable law under Rome II. By the mechanisms of EU consumer law and EU insurance law, mixed with the finest legal machinery in the area of subrogation, a UK resident party injured in a motor accident (here: at a private racing circuit in Spain) abroad is entitled to claim compensation from the Motor Insurers’ Bureau (‘MIB’) in certain circumstances, clarified by the UKSC in Moreno v MIB [2016] UKSC 52. Crowther DJ summarises these circumstances as [6]

broadly speaking, that the guarantee fund of the member State in which the accident occurred would be liable to compensate the injured person on the facts of the individual case, when applying the rules of the local law which govern such actions by injured persons against the local guarantee fund. In other words, if Mr Lambert can show that the Spanish guarantee fund would have been liable to him in respect of the accident, he can claim such compensation from the MIB as would have been payable by the local guarantee fund. It is common ground in this case that the scope of the insurance obligation for use of motor vehicles under Spanish law extended to cover participation in the track event, notwithstanding the fact that it was not on a road or other public place.

The latter element is unlike the UK where seemingly third party motor insurance for motor sport is not commercially available.

The law applicable to the claim is agreed to be English law. While not specified in the judgment, this is presumably because of Article 4(2) Rome II (where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply): both Mr Lambert, claimant, and Mr Prentice, said to be responsible for the accident, were participants in a track event, organised by a UK based track day operating outfit called Track Sense; both travelled to Spain from the UK.

Spanish law however determines the preliminary issue as highlighted by the Supreme Court, Spanish law being the law which would have been applicable to any hypothetical claim which Mr Lambert might have brought against the Spanish guarantee fund. This is where things get interesting. The Motor Insurance Directives support a direct claim against one’s national MIB, subject to the law of the MS where the accident happened, sustaining liability in the circumstances. However Rome II somewhat curtails its action radius by declaring that it does not apply to ‘evidence and procedure’. This is a carve-out which is problematic in specific instances as I explain ia here. On such instance are issues of limitation however these it seems ([14)] were not pursued.

In the case at issue, parties’ agreement ([9]) is that by analogy to A1(3) Rome II, matters of evidence and procedure are outside the scope of the material substantive law and fall to be determined in accordance with English law as the law of the forum (lex fori in principle determines issues of evidence and procedure). Equally, on an analogous basis to A22(1) Rome II, parties agree that Spanish law will apply insofar as it contains rules which raise presumptions of law or determine the burden of proof.

The common law treating foreign law as fact, means the content of that foreign law is established often with the help of parties (if need be cross-examined) experts however [17] is for the English judge to determine. The remainder of the case therefore is spent discussing the expert evidence (with the judge doing some fine distinguishing of the case-law both experts referred to) together with the factual elements, to conclude [94]

Mr Lambert’s actions were 25% causative of the accident and Mr Prentice’s 75%. It follows that Mr Lambert’s claim for damages against MIB succeeds to the extent of 75% of his loss or damage.

Lest my understanding of the insurance Directives fails me (which it could well do), this means that claim on 75% of the damage remains to be judged under English  tort law. With presumably a repeat of the causation test, this time under English law.

A clearly written judgment which no doubt benefitted from the considerable practice experience of the judge on the matters at hand.

Geert.

Applicable law, accident at motorcycle track event
Rome II evidence, procedure exception mutatis mutandis (per motor insurance regulations), and approach to Spanish law as a matter of fact
Judgment by @sarahcrowtherqc
Lambert v [MIB] [2022] EWHC 583 (QB)https://t.co/OhVSZ1ljt0

— Geert Van Calster (@GAVClaw) March 16, 2022

Stefan Grundmann (Professor of Transnational Law and Theory at the European University Institute, Florence, and Professor of Private and Business Law at Humboldt-University, Berlin) and Mateusz Grochowshi (Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg, Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences, Warsaw, and Fellow at the Information Society Project, Yale Law School) edited a book on European Contract Law and the Creation of Norms that has just been published with Intersentia.

The works contained in this volume sketch a broad landscape of sources of modern contract law, with a particular focus on European private law rules. With this the contributions seek to provide a better understanding of the identity of present-day contract law through an analysis of the multitude of social and economic dynamics that shape the normative landscape.

The blurb of the book reads as follows:

The book provides a broad and topical perspective of the sources of modern contract law. It examines the creation of contract law as a multi-pronged occurrence that involves diverse types of normative content and various actors. The book encompasses both a classical perspective on contract law as a state-created edifice and also delves into the setting of contractual rules by non-state actors. In so doing, the volume thoroughly analyses present-day developments to make sense of shifting attitudes towards the overall regulatory paradigm of contract law and those that reshape the classic view of the sources of contract law. The latter concerns, in particular, the digitalisation of markets and growing trends towards granularisation and personalisation of rules.

The book builds on the EU private law perspective as its primary point of reference. At the same time, its reach goes far beyond this domain to include in-depth analysis from the vantage points of general contract theory and comparative analysis. In so doing, it pays particular attention to theoretical foundations of sources of contract law and values that underpin them. By adopting such diversified perspectives, the book attempts to provide for a better understanding of the nature and functions of present-day contract law by capturing the multitude of social and economic dynamics that shape its normative landscape.

The volume gathers a unique and distinguished group of contributors from the EU, USA and Israel. They bring research experience from various areas of private law and contribute with diverse conceptual perspectives.

A summary of contents is available here.

The Chinese University of Hong Kong’ Cross-Border Legal issues Dialogue Seminar Series presents this online seminar by Professor Richard Garnett on 1st April 2022 12.30pm -2pm (Hong Kong time; GMT +8 hours).

The conflict of laws has traditionally drawn a sharp distinction between jurisdiction and applicable law. The conventional approach suggests that a court only reaches the question of the law to be applied to the merits after the tribunal has determined that it has the power to adjudicate the action. Common law systems have however long recognised that a court has a discretion to accept or decline jurisdiction (determine the appropriate forum) and that a relevant factor in this discretion is the applicable law.

The purpose of this presentation is to examine the current status of the applicable law in jurisdiction and forum disputes, noting the trend in countries such as Australia to give the factor substantial weight and significance.

About the speaker:

Richard Garnett is Professor of Private International Law at the University of Melbourne, Australia and a consultant in international disputes at Corrs Chambers Westgarth. Richard regularly advises on cross-border litigation and arbitration matters and has appeared as advocate (barrister) before several tribunals including the High Court of Australia. Richard has written extensively in the fields of conflict of laws, foreign state immunity and international arbitration, with his work cited by leading tribunals around the world, including the International Court of Justice, the European Court of Human Rights, the English Court of Appeal, United States federal district courts, the Singapore Court of Appeal and Australian, Israeli and New Zealand courts. Richard has also served as expert member of the Australian Government delegation to the Hague Conference on Private International Law, to negotiate the 2005 Hague Convention on Choice of Court Agreements and the 2019 Convention on Recognition and Enforcement of Foreign Judgments.

Please register by 5 pm, 31 March 2022 (Hong Kong time; GMT +8 hours) to attend the seminar.

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334  discusses the same issue as Rahmatullah and Ali v MOD and FCO which I review here (and in which I later inserted the High Court judgment in current case).

What law is applicable to torts allegedly committed by the UK Security Services against a detainee subjected to “enhanced interrogation techniques” by the US CIA. The essence of the claimant’s claim is that the Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.

The first instance judge had refused to overturn the mosaic of six applicable laws (of the countries involved: Thailand, Poland, the US’ base at Guantanamo Bay, Morocco, Lithuania and Afghanistan) which follows from the standard application of the residual English conflict of laws rules (the EU Rome II Regulation does not apply): these point to lex locus damni. Males LJ to my mind unconvincingly does overturn that general rule, with  some reliance on the Supreme Court in VTB Capital Plc v Nutritek. 

The Court holds [37] that the judge had failed to focus on the tort allegedly committed by the UK Services (with too much emphasis on the treatment of claimant in the six countries, by the CIA); [38] wrongly discounted the reasons advanced by claimant for saying that the factors connecting the tort with the Six Countries were of reduced significance (this includes the fact that the claimant had no control whatever over his location and in all probability no knowledge of it either; and that there was a (jurisdictional) forum shopping element in the transfers to the 6 countries: keeping him away from jurisdictions with less forgiving rules on the practices concerned); and [40] the fact that the actions taken by the Services were undertaken “for the perceived benefit of the UK”, that is to say in the interests of this country’s national security.

The reasonable expectations of claimant play a big role in the analysis: claimant could have expected [41] that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law.

Throughout the judgment Males LJ puts great emphasis on what he notes [22] as an overarching aim of the relevant Act, which is ‘the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ However that is the Law Commission’s view on the raison d’être of conflict of laws full stop. I am not so sure it can serve as a determinative principle in the application of a specific rule of the Act.

I am not saying that the outcome of the case is wrong. Yet the judgment gives the impression of a correction of the judge’s factual balancing act between the different factors, rather than an error of law, and the emphasis on legitimate expectations feels a bit artificial in the circumstances. Add to this that [35] nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant’s claims as a whole was either English law or the law of the Six Countries, and so did the Court of Appeal. This, too, may make the judgment’s authority limited.

Finally Males LJ holds obiter [51 ff] and correctly that it is too early to decide whether the application of the foreign laws, had they been applicable, would have had to be set aside on the basis of ordre public: while some evidence on the law of the 6 countries had been presented, there had not yet been proper discussion of same.

Geert.

See my analysis of an earlier, similar High Court case with different outcome here https://t.co/NRZYDLJjZJ (Rome I does not apply). https://t.co/N3bKc7g3gm

— Geert Van Calster (@GAVClaw) March 16, 2022

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued an “Information Note – Children deprived of their family environment due to the armed conflict in Ukraine”. Click here for the English version and here for the French version. The HCCH news item is available here.

The Charles De Visscher Center for International and European Law (CeDIE, UCLouvain, Belgium) will host a conference on Surrogacy and Private International Law, on 31 March 2022.

The conference aims at discussing the theoretical and practical debates on surrogacy, by presenting both the rules of domestic law (including a comparative law approach) and the rules of private international law, with an emphasis on the latter. It will also provide for an opportunity to revisit some of the issues related to the ethical and human rights implications of surrogacy.

Speakers will include legal and medical practitioners as well as academics.

Geneviève Schamps (Professeure, UCLouvain), Jehanne Sosson (Professeure, UCLouvain, avocat), Hugues Fulchiron (Professeur, Université Jean Moulin Lyon 3, Juge, Cour de cassation française), Patrick Wautelet (Professeur, ULiège), Petra Hammje (Professeure, Université de Nantes), Michelle Giroux (Professeure, Université d’Ottawa), Geoffrey Willems (Professeur, UCLouvain), Julie Mary (Assistante et doctorante, UCLouvain) , Amélie Panet (Maître de conférences, Université Jean Moulin Lyon 3),Catherine de Bouyalski (Avocate au barreau de Bruxelles), Nicolas Gendrin (Juge, Tribunal de la famille de Namur), Florence Anciaux Henry de Faveaux (Conseiller, Cour d’appel de Mons), Géraldine Mathieu (Maître de conférences, Université de Namur & ULiège), Sylvie Sarolea (Professeure, UCLouvain, avocate), Caroline Mecary (Avocate aux barreaux de Paris & du Québec), Candice Autin (Médecin gynécologue, Responsable du centre de Procréation Médicalement Assistée au CHU Saint-Pierre), Jean-Philippe Cobbaut (Professeur, Université catholique de Lille & UCLouvain) and Jean-Yves Carlier (Professeur, UCLouvain & ULiège, avocat). 

The working language will be French.

The full programme is available here. Online registration is open here.

As announced a few days ago on this blog, a dedicated page has been created in the website of the European Association of Private International Law to collect information about funding or other opportunities offered to refugee scholars and scientists. Some opportunities are available to refugee scholars from any country, others to refugee scholars from Ukraine only, others still to refugee scholars from Ukraine, Russia and Belarus.

The page is constantly updated. The latest update is now on-line.

Those aware of additional funding opportunities (including opportunities for remunerated work to be carried remotely from Ukraine or other places) are invited to get in touch with the Secretary General at secretary.general@eapil.org.

The Center for Law, Economics and Policy Studies (CEDEP) is organising an online course on Choice of Law, International Contracts and the Hague Principles. For more information on this course, click here.

The course will officially begin on Tuesday 22 March 2022, with weekly sessions (a total of 9) to be released on Tuesdays (which may be supplemented with additional lessons in May). The sessions will be in English with Spanish subtitles and will be available throughout the year 2022 on the CEDEP e-learning platform, thus there is no deadline for registration. The registration fee is 90USD – several payment methods are possible (including online). To register click here.

CEDEP has kindly provided in advance the link to the Introductory Session (Choice of Law – 22 March 2022) for Conflictoflaws.net readers, which may be viewed free of charge here: 1. Choice of Law – Introductory Session.

The speakers of the Introductory Session are Luca Castellani (UNCITRAL), Anna Veneziano (UNIDROIT) and Ning Zhao (HCCH) and the topic is UNCITRAL, HCCH, and UNIDROIT Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. The Legal Guide and other information may be accessed on the Hague Conference website, click here.

The e-learning platform will also make available relevant bibliography, the presentations of the speakers, discounts for a relevant publication and much more. A certificate of participation will be given if a minimum attendance is confirmed.

Below is a list of the speakers per session:

The editors of the Italian Review of International and Comparative Law (IRIC) welcomes papers from scholars and practitioners at all stages of their career for the Volume 1 of 2023.

Papers may cover any topic, under public international law, private law and comparative law, of the issues related to the interaction between the EU legal order and international arbitration, including:
– The influence of EU law on the concept of arbitrability.
– The exclusion of commercial arbitration from the Bruxelles I-bis Regulation.
– The legal consequences of Brexit on international arbitration in Europe.
– The circulation of judgments concerning international arbitration within the EU;
– The future evolution of ISDS in the EU.
– The regulation of international investments between the EU, its Member States and third countries.
– Treaty law issues concerning the validity and the effectiveness of intra-EU bilateral investment treaties (BITs) and the use of public international law by the CJEU.
– The fate of the 1994 Energy Charter Treaty.
– The application of EU law by international arbitrators.
– International investment law before EU Member States domestic courts.
– The enforcement of arbitral decisions concerning intra-EU BITs in EU and third countries.
– EU law as a form of public policy precluding the enforcement of arbitral decisions.
– The potential effects of the CJEU’s decisions concerning international commercial arbitration or ISDS.

Papers containing also a reference to Italy, or the Italian practice will be particularly appreciated.

The selection of papers will be based on the submission of abstracts of max. 1.000 words to iricsubmissions@gmail.com by 1 April 2022. Selected authors will be informed by 30 April 2022.

Final papers will have to be submitted by 15 September 2022 and may have the forms of essays, comments, case notes, recent developments and review essays; each of the latter has a different range of words allowed. Submitted abstracts will have to mention the tentative title of the paper and the form expecred to be used.

Further information available here.

Written by William S. Dodge (Professor, University of California, Davis, School of Law)

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.

On Tuesday, April 5, 2022, the Hamburg Max Planck Institute will host its 21th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Prof. em. Dr. Dr. h.c. mult. Erik Jayme (University of Heidelberg) will speak, in German, about the topic

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.

In a judgment of 3 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) confirmed the evolution of the French law of Sovereign Immunities after a statutory intervention in 2016 and its alignment on the 2004 UN Convention on Jurisdictional Immunities.

A Dutch judgment from 27 September 2000 ordered a public Iraqi company, Rasheed Bank, to pay various amounts to Citibank, an American company. On this ground, Citibank carried out a protective measure on Rasheed Bank’s accounts in France, which was later converted into an attachment procedure after the Dutch judgment was declared enforceable by French courts. The Iraqi company seized French courts to challenge the conversion.

There were two main issues arising in this case:

• Whether Article 19 of the UN Convention on Jurisdictional Immunities required a connection between the assets attached and the claim, in addition to a connection between the goods and the entity against which the claim was brought, and
• Whether the creditor had to prove that the State voluntarily intended to allocate its property to a government non-commercial purpose,

Article 19(c) of the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) provides that post-judgment measures of constraint may only be taken if and to the extent that (…) “it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed”.

In a judgment of 17 October 2019, the Paris Court of Appeal upheld the conversion of the protective measure into an attachment procedure. After recalling the content of Article 19 of the UN Convention on Jurisdictional Immunities, the Court of Appeal ruled that there must be a connection between the assets attached, which must be linked to a private law transaction, and the entity against which the claim was brought. It then ruled that requiring a connection between the assets attached and the claim would be contrary to Article 6(1) of the ECHR and the right of access to justice, as it would disproportionately infringe the creditor’s right to enforce judgments, without pursuing a legitimate purpose.

The Court of Appeal also held that Article 19 of the UN Convention on Jurisdictional Immunities does not require the creditor to demonstrate the State’s will to allocate the attached assets to a commercial purpose. It recalled the principle of unattacheability of State assets and that the burden of proof lies on the creditor, before finding that in light of the circumstances, the assets deposited on the accounts were to be allocated to ends other than government non-commercial purposes: the cash-deposit account was opened at a time where Rasheed Bank presented itself as independent from the Iraqi State and frequently performed commercial transactions, a use that cannot have changed since due to the freezing of Iraqi assets in 1990.

Rasheed Bank challenged this judgment on several grounds.

First, it argued that although Article 19 of the UN Convention on Jurisdictional Immunities does not require a connection between the attached assets and the creditor’s claim to allow the seizure, it does not prohibit it either. According to the Iraqi public company, the Court of Appeal failed to give adequate reasons by ruling that requiring a link between the attached assets and the claim was contrary to Article 6(1) of the ECHR. Rasheed Bank claimed that since the UN Convention of Jurisdictional Immunities reflects customary international law, the Court of Appeal could not rule the requirement of a connection between the attached assets and the claim contrary to Article 6(1) of the ECHR without first verifying whether requiring this connection would be contrary to customary international law. It also sustained that the right to have access to justice of Article 6(1) ECHR may be restricted by a limitation whose purpose is legitimate and which is proportionate to this purpose; according to Rasheed Bank, the Court of Appeal’s reasoning lacks a legal basis as it failed to indicate how requiring a connection between the attached assets and the claim would infringe the creditor’s right to enforce judgments without pursuing a legitimate purpose.

Second, Rasheed Bank argued that by virtue of customary international law, in order to attach specifically used assets or assets used for other than government non-commercial purposes, the creditor must demonstrate the will of the State or of its emanation to allocate the attached assets to a commercial purpose.

The Supreme Court upheld entirely the judgment of the Court of Appeal.

It ruled that customary international law, as codified by Article 19 of the UN Convention on Jurisdictional Immunities, provides that apart from the situations where the State has expressly consented to post-judgment measures of constraint or allocated or earmarked property for the satisfaction of the claim, his property or that of its emanations located on the territory of the forum may only be seized, pursuant to a judgment or an arbitral award, if it is “specifically in use or intended for use by the State for other than government non-commercial purposes” and have “a connection with the entity against which the proceeding was directed”. Hence the Supreme Court found that the Court of Appeal had rightly ruled that the taking of post-judgment enforcement measures does not require a connection between the attached assets and the claim: they must only be connected to the entity against which the measures are carried out.

The Supreme Court also ruled that the Court of Appeal rightly inferred from the circumstances that the assets were not destined to a government non-commercial use, without shifting the burden of proof. It held that the account seized, because it was opened in the course of commercial transactions, was by nature intended to serve  ends other than non-commercial purposes.

The judgment must be viewed in the light of the recent reform of the French law of sovereign immunities.

Until 2016, the French law of immunities was entirely judge made. The leading case was Eurodif, where the Cour de cassation had ruled in 1984 that the scope of the immunity of enforcement of foreign states extended to all assets which did not have a connection with the commercial activity which gave rise to the claim. In other words, a claim arising from the trade of grain by a state could not be satisfied on assets affected to the oil activities of a state.

In 2016, the French Parliament adopted statutory provisions replicating Article 19 of the UN Convention on Jurisdictional Immunities. These provisions are found in the French Code of civil enforcement proceedings (Code des procédures civiles d’exécution), in particular in Art. L. 111-1-2.

This case, however, did not fall within the temporal scope of these statutory provisions. This likely explains why the Court did not simply refer to them (as the Court of Appeal had), but rather applied directly Article 19 as customary international law. While many provisions of the Convention certainly reflect customary international law, whether Article 19 actually does is unclear, but the Cour de cassation has long shown that it has no intention of embarking into any nuanced analysis in this respect.

They key question arising in this case was whether Article 19 necessarily excludes the rule in Eurodif. The argument of the appeal was that Article 19 was silent, and thus neutral in this respect, and that the Court could have kept this long standing requirement. The argument is rejected, and the court rules that the old requirement of a connection between the attached assets and the claim is obsolete.

The Institute for Private International and Comparative Law of the University of Cologne, directed by Heinz-Peter Mansel, is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for two years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. Proficiency in Dutch, Italian, Spanish or French an advantage.

Interested candidates are invited to send their application by 25 March 2022.

See here for further information.