Conflictoflaws

On 20 and 21 June 2024, two events on private international law will be taking place in Vienna, both co-hosted by Florian Heindler (Sigmund Freud University, Vienna).

Ehrenzweig Lectures on 20 June 2024

June 2024 marks the fiftieth anniversary since Ehrenzweig passed away. On this occasion, a conference on the Austrian Ministry of Justice will host a conference  to honour Albert Armin Ehrenzweig and his extraordinary jurisprudential legacy. The conference is jointly organised by the Interdisciplinary Association of Comparative and Private International Law (IACPIL), the University of Vienna, and the University of California, Berkeley.

Confirmed speakers are Richard Buxbaum (University of Berkeley), Eric Jayme (University of Heidelberg), Andrew Bradt (University of Berkeley), and Jeremy Heymann (University Lyon III).

More details can be found here. Participation is free of charge. Please register via office@igkk.org.

Third Private International Law Workshop in Austria

On 21 June 2024, Brigitta Lurger, Martina Melcher, Florian Heindler, and Simon Laimer organize the third edition of the Austrian Private International Law Workshop. This year, it is hosted by the Sigmund Freud University Vienna, Austria. The organizers aim to facilitate an open and lively discussion on questions of private international law.

The program can be found here and here. Participation is free of charge. Please register via ipr@sfu.ac.at.

On 20 and 21 June, a conference dedicated to Stratetic Litigation, organized by Christiane von Bary (LMU Munich) and Tobias Lutzi (University of Augsburg), will take place at the Bavarian Academy of Sciences and Humanities in Munich, Germany.

The event, which will be held in German and is free of charge for all attendants, aims to tackle a variety of questions raised by a seemingly growing number of lawsuits that pursue aims beyond the dispute between the litigating parties – only some of which appear societally desireable.
The discussants, many of whom have first-hand experience, will address a number of overarching aspects such as the the role of courts in policy-making or the potential of collective-redress mechanisms and legal tech before diving more deeply into two particularly prominent examples: climate-change litigation and SLAPPs.

More information can be found on this flyer.

Please this link to register for the event.

The latest issue of RabelsZ has just been released. In addition to the following articles it contains fantastic news (mentioned in an earlier post today): Starting with this issue RabelsZ will be available open access! Enjoy reading:

Symeon C. Symeonides, The Torts Chapter of the Third Conflicts Restatement: An Introduction, pp. 7–59, DOI: https://doi.org/10.1628/rabelsz-2024-0001

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

Yves-Junior Manzanza Lumingu, Jules Masuku Ayikaba, Accessibilité des sociétés commerciales de droit étranger à l’espace OHADA – Sur la reconnaissance de leur personnalité juridique selon la jurisprudence de la CCJA, pp. 60–86, DOI: https://doi.org/10.1628/rabelsz-2024-0008

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

Eckart Bueren, Jennifer Crowder. Mehrstimmrechte im Spiegel von Rechtsvergleichung und Ökonomie, pp. 87–150, DOI: https://doi.org/10.1628/rabelsz-2024-0015

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

Since the beginning of this year, Rabels Zeitschrift is available in open access. For a long time, the journal has published articles in other languages than German in particular English. The new open access model should make even more attractive for authors wishing to reach an international audience. What follows  is a translation of the Editorial in Rabels Zeitschrift, Volume 88 (2024) / Issue 1, pp. 1-4: Open Access – was sich mit diesem Heft ändert by Holger Fleischer, Ralf Michaels, Anne Röthel, Christian Eckl, licensed under CC BY 4.0. Translation by Michael Friedman.

Editorial

Open Access – Changes Brought with this Issue

Abstract: Upon perusing this issue, several new features will likely stand out: a new, multi-colour cover, a new layout, which continues inside, and, lastly, the appearance of the logo of the Max Planck Institute for Comparative and International Private Law on the cover, alongside the publisher’s emblem. Additionally, the imprint reflects the new Institute management constellation: Anne Röthel joined the Directorate at the beginning of 2024 and is now an editor of the journal. And above all, the presence of the Creative Commons logo makes clear that the Rabel Journal is now open access. With this and other measures, the publisher and the editors are taking important steps towards “open science”.

“The findings of scientific research should be published open access.” In 2022 the German Science and Humanities Council (Wissenschaftsrat) made this demand –having reference to guidelines of the German Research Foundation (Deutsche Forschungsgemeinschaft, DFG) – and identified open access publication as a component of good academic practice. Since that time, research funding has increasingly been linked to open access publication. As part of the Max Planck Society and as the publisher of the Rabel Journal, the Institute considers itself especially committed to the notion of open access given that, consistent with its founding purpose, the Institute is focused on performing basic research. But the task is not limited to meeting the needs of the German-language publication market with its high degree of specialization and its unique, commercially influenced reputation mechanisms. Rather, the Institute, and thus the Rabel Journal, has to stay abreast of the entire world – both in terms of the topics of inquiry as well as the basic research being conducted and funded. This results in concrete expectations in terms of inclusivity: high-quality research should not be absent from global scholarly discourse due to financial limitations. The reception of ideas and findings should not be hemmed in by declining library budgets or continually higher prices on the book and journal market. Similarly, authors should not have to pay prohibitive article processing charges for the publication of articles, as can be the case with so-called hybrid open access. The concern about inequalities or mechanisms which may serve to restrict publication or reception opportunities is also expressed in the May 2023 DFG statement on the EU Council Conclusions on “High-quality, transparent, open, trustworthy and equitable scholarly publishing”. We share the view that open access should serve readers and authors alike.

For these reasons, we welcome the willingness of Mohr Siebeck to publish the Rabel Journal in the subscribe to openmodel (S2O) from now forward. This procedure is not without risk to the publisher. But it allows for a complete open access transformation of academic journals with relatively little additional effort. At the same time, the subscribe to open model enables fair and inclusive open access, as all authors can in principle publish in journals of their choice. However, the success of the model depends on existing subscribers remaining loyal to the journal, thereby not only securing their own access through their subscriptions – as has been the case to date – but also contributing to making the journal available open access to scientists and academics worldwide. We hope that many people will commit to this idea and this effort and make their own contribution to an inclusive academic culture. If our joint idea does not find enough support and over the long term the number of subscriptions falls, we will, however, have to return to closed access and the pertinent volumes would then only be accessible to paying subscribers, as was previously the case.

Since the start of 2024, volumes from 2001 onwards have been freely accessible in the publisher’s e-library, while the volumes from 1927 to 1960 (published under the title “Zeitschrift für ausländisches und internationales Privatrecht”) and the volumes from 1961 to 2000 (published under the same title but affixed with the name of the founder, Ernst Rabel) can be freely accessed at JSTOR. At all these locations, the content of these volumes will remain open access  and can be reproduced and redistributed in accord with the Creative Commons BY 4.0 licence. The same applies to all new articles published under the S2O model from 2024 forward.

We are convinced in our editorial capacity that the transition to open access is not only a timely and appropriate step that is consistent with the Institute’s ongoing academic mission, but also a measure that will strengthen the journal’s visibility by making its articles readily accessible to readers and researchers at any location, rather than only via libraries in Germany or abroad. We are convinced that this is wholly in the spirit of Ernst Rabel, who created the journal as a forum for international intellectual exchange with the aim of acquiring contributions from all over the world. As he once wrote: “domestic co-operation [cannot] suffice […]; help from foreign countries themselves is indispensable and will always be received with appreciation […] To examine legal material and ascertain the extent to which national legal barriers have become too constricted for it, and to transport scholarship beyond these barriers, this is indeed what commands academic inquiry of Germany’s own initiative, […] but its fulfilment becomes more comprehensive through international cooperation” (Ernst Rabel, Zur Einführung, Zeitschrift für ausländisches und internationales Privatrecht 1 (1927) 1-4, 4).

But the transition to open access will not affect our quality standards. This also means that we have to keep assessing whether our quality measures remain up to date. Open access is an aspect of open science, and it is therefore committed to the guiding principle of disclosing all elements of the scientific process and making them verifiable, as stated in the UNESCO Recommendation on Open Science from 2022. “Open science” does not solely mean free access to publications; rather, it relates also to the responsible handling of research data, to an appropriate and inclusive procedure for the receipt and evaluation of submissions, and to proper efforts in terms of the editorial oversight, preparation and presentation of accepted contributions.

For quality assurance, the journal continues to rely on peer review by academics who are familiar with the subject matter of the submitted articles and who can judge their merit and originality. This procedure has for many years been in the hands of the editorial board, which, together with other reviewers, works on a voluntary basis and with great commitment and a sense of responsibility. We are deeply grateful for the efforts of all the individuals involved. With regard to the thematic and geographical scope of the journal and its aim to follow and participate in worldwide developments, it has become increasingly important to be able to draw on an international network of experts. As an institutional publication, we are mindful of the potential need to adjust the journal’s governance structure, and we wish to consider, for instance, whether and how the establishment of an additional committee could be beneficial. In terms of advisory input, the journal has traditionally been able to rely on the feedback of its co-editors, operating both in- and outside the Institute. They, as well, deserve our explicit gratitude for their co-operation, and we hope that they will continue to support the journal, contributing both valuable suggestions as well as constructive criticism.

Finally, the journal’s layout and design have also been updated. After remaining unchanged for decades, the appearance is now being adapted to match evolving reading habits. Nowadays, articles are increasingly being read on computer screens or mobile reading devices, and the subsequent use and reproduction of texts is now largely carried out by means of electronic devices. Certain formats, fonts, and typographic designs are better suited to these practices than others. Much may still be in flux here and will need to be monitored further, for example in terms of searchability and machine readability or the availability of alternative download formats. These are all important issues that the Institute and the publisher will have to keep in mind in the coming years.

Quality assurance can easily be at odds with speedy publication. We are therefore pleased that an online-first process was agreed with the publisher already in 2023, thereby allowing individual articles to be published promptly – in advance of the entire issue – after peer review and after completion of editorial processing. Through the use of digital object identifiers (DOI), these articles can be cited without ambiguity from the outset.

With these measures, the journal’s publisher and editors are taking significant steps in the direction of open science. We hope that many others will join us on this path and continue to breathe life into the journal, both as readers and as authors contributing from around the world.

Holger Fleischer / Ralf Michaels / Anne Röthel
and from the editorial desk Christian Eckl

Conventions & Instruments

On 14 March 2024, Angola deposited its instrument of accession to the 1993 Adoption Convention. With the accession of Angola, the 1993 Adoption Convention now has 106 Contracting Parties. More information is available here.

On 14 March 2024, Moldova deposited its instrument of accession to the 2005 Choice of Court Convention. With the accession of Moldova, 33 States and the European Union are bound by the 2005 Choice of Court Convention. More information is available here.

On 21 March 2024, El Salvador deposited its instrument of accession to the 1965 Service Convention and the Dominican Republic deposited its instruments of accession to the 1965 Service Convention and the 2007 Child Support Convention. More information is available here.

Meetings & Events

From 5 to 8 March 2024, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 429 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

On 22 March 2024, the Permanent Bureau hosted the webinar “HCCH 2005 Choice of Court Convention: Fostering Access to Justice for Cross-Border Commerce in the Asia Pacific Region”.

Publications

On 8 March 2023, the Permanent Bureau announced the publication of the HCCH 2023 Annual Report. 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.

Written by Tarasha Gupta, student, Jindal Global Law School, Sonipat (India) and Saloni Khanderia, Professor, Jindal Global Law School

In its recent judgment in Shiju Jacob Varghese v. Tower Vision Limited,[1] the Delhi High Court (“HC”) held that an appeal before an Indian civil court was infructuous due to a consent order passed by the Tel Aviv District Court in a matter arising out of the same cause of action. The Court deemed the suit before Indian courts an attempt to re-litigate the same cause of action, thus an abuse of process violative of the principle of comity of courts.

In doing so, the Court appears to have clarified confusions arising in light of the explanation to Section 10 of the Civil Procedure Code, 1908 (“CPC”), on one side, and parties’ right to choice of court agreements and forum non conveniens on the other. The result is that, as per the Delhi HC, Indian courts now ought to stay proceedings before them if the same cause of action has already been litigated before foreign courts.

The Indian Position on Concurrent Proceedings in Foreign and Domestic Courts

In the European Union, Article 33 of the Brussels Recast gives European courts the power to stay proceedings if concurrent proceedings based on the same cause of action are pending before a foreign court. The European court may exercise this right if the foreign court will give a judgment capable of recognition, and such a stay is necessary for the proper administration of justice. By contrast, in India, the Explanation to Section 10 of the CPC provides that the pendency of a suit in a foreign Court does not preclude Indian courts from trying a suit founded on the same cause of action.

The Indian Supreme Court in Modi Entertainment v. WSG Cricket[2] upheld parties’ right to oust the jurisdiction of Indian courts in favour of a foreign forum through choice of court agreements. Where parties have agreed to approach a foreign forum by a non-exclusive jurisdiction clause, they would have considered convenience and other relevant factors. Therefore an anti-suit injunction cannot be granted.

Notwithstanding this judgment, however, when it came to situations where parties did not confer jurisdiction upon a foreign court through a choice of court agreement, the explanation to Section 10 of the CPC would still apply. Therefore, a party could initiate proceedings before both foreign and domestic courts on the same cause of action, resulting in the possibility of conflicting judgements and creating a nightmare for their enforcement. It would also increase the costs of resolving any dispute, as multiple litigation proceedings may occur simultaneously.

Courts in India tried to mitigate the impacts that could arise from these conflicting judgements through the doctrine of ‘forum non conveniens’. The doctrine permits courts to stay proceedings on the ground that another forum would be more appropriate or convenient to adjudicate the matter. There are no fixed criteria in considering whether to invoke the doctrine. However, courts may consider, inter alia, the existence of a more appropriate forum, the expenses involved, the law governing the transaction, the plausibility of multiple proceedings and conflicting judgements.

The doctrine of forum non conveniens, however, is only a discretionary power and can only be invoked if the defendant is able to prove that the current proceedings would be vexatious or oppressive to them and the foreign forum is “clearly or distinctly more appropriate than the Indian courts” (clarified by the Indian Supreme Court in Mayar (HK) Ltd. v. Owners and Parties, Vessels MV Fortune Ltd.[3]). Thus, it would not be mandatory in every situation for an Indian court to stay a suit pending before it, even if proceedings on the same cause of action are pending or completed in a foreign court.

Dismissal of the Appeal before Indian courts in Shiju Jacob

The dispute concerned a Share Entitlement executed in favour of the present Appellant, based on which the Appellant had filed a civil suit before the Tel Aviv District Court. More than two years later, they filed a suit for interim relief that was partially allowed by the Tel Aviv District Court but set aside by the Supreme Court of Israel. After that, the Appellant filed a suit before the Indian court, which was dismissed as a re-litigation and violative of the principle of comity. Consent terms were then filed in the Tel Aviv suit, and the suit was disposed of as settled. Shortly after that, the appellant moved an application to rescind the order to dispose of the suit, which the Tel Aviv District Court dismissed.

The Respondents now claimed, before the Indian court, that the appeal against the previous order by the Indian court was infructuous in view of the consent order passed by the Tel Aviv District Court. The Appellants, on the other hand, argued that the explanation to Section 10 of the CPC allowed them to file a suit in India, even if it was on the same cause of action as the suit before the Israeli courts.

The Delhi High Court held that allowing the appeal to continue would violate the principle of comity of courts, as it could result in conflicting decisions between the Israeli and Indian courts. It would also constitute re-litigation, which, although may not in every case be barred as res judicata, depending on the facts and circumstances, could be an ‘abuse of process’. The concept of ‘abuse of process’ is thus more comprehensive than the concept of res judicata or issue estoppel. The Court therefore held that a suit or appeal must be struck down as an abuse of process even if the party is not bound by res judicata if it is shown that the new proceeding is manifestly unfair or would bring the administration of justice into disrepute.

Implications of the Judgment  

The judgment thus provides that Indian courts must dismiss suits which have already been litigated before foreign courts. This is a welcome change, considering that the explanation to Section 10 of the CPC allows such proceedings to occur at the same time.

However, given that this is a High Court judgement, it will not be binding on Courts outside of Delhi and would simply have persuasive value. This difficulty is compounded by the fact that as per the facts of Shiju Jacob, the suit had been dismissed by the Tel Aviv District Court by the time the appeal was heard. Thus, it is unclear whether Indian courts will be able to follow the same approach where proceedings in the foreign court haven’t been completed yet. In fact, the HC had observed that the effect of the explanation to Section 10 of the CPC did not even arise for consideration in the present case, as the settlement in question was not being executed or enforced in the proceedings before the Indian Court.

That said, the judgment of the Single Judge (which was being challenged in the present appeal) dismissed the suit even before the consent terms were passed because it was violative of the principle of comity of courts and amounted to re-litigation. The judgment signals that the Delhi HC intended for courts to apply the same principle where proceedings on the same cause of action are ongoing in a foreign court.

Ultimately, however, it is unfortunate that this intervention had to come from the judiciary and not the legislature. India still does not have comprehensive legislation governing transnational disputes, and its position on private international law has been gauged by extending domestic rules by analogy. In the absence of legislation, uncertainty continues to reign as parties must piece together the position of law from hundreds of judgements. Regardless, the judgment in Shiju Jacob is an encouraging precedent for improving the finality of transnational litigation in India and ending the difficulties created by the explanation to Section 10 of the CPC.

[1] 2023 SCC OnLine Del 6630.

[2] (2003) 4 SCC 341.

[3] AIR [2006] SC 1828.

The rules regarding service outside the jurisdiction are about to change for the Supreme Court of Western Australia.

In a March notice to practitioners, the Chief Justice informed the profession that the Supreme Court Amendment Rules 2024 (WA) (Amendment Rules) were published on the WA legislation website on 26 March 2024.

The Amendment Rules amend the Rules of the Supreme Court 1971 (WA) (RSC). The primary change is the replacement of the current RSC Order 10 (Service outside the jurisdiction) while amending other relevant rules, including some within Order 11 (Service of foreign process) and Order 11A (Service under the Hague Convention).

The combined effect of the changes is to align the Court’s approach to that which has been applicable in the other State Supreme Courts for some years.

The changes will take effect on 9 April 2024.

The rules as to service outside the jurisdiction are important to cross-border litigation in Australian courts. Among other things, the rules on service provide the limits to the court’s jurisdiction in personam: Laurie v Carroll (1957) 98 CLR 310, 323.

Whether a litigant has a judicial remedy before a court with respect to a person located outside of that court’s territorial jurisdiction will depend on that court’s rules as to service, among other things.

‘[C]ivil jurisdiction is territorial’: Gosper v Sawyer (1985) 160 CLR 548, 564 (Mason and Deane JJ). So historically, the rules on service would authorise ‘service out’ when there was an appropriate connection between the subject matter of the claim and the court’s territory. For example, a court would have the requisite connection to a contract dispute where the contract was made in the forum jurisdiction, even though the defendant in breach was located outside the jurisdiction.

The requisite connection to forum territory sufficient to justify a court’s extra-territorial jurisdiction over a person not within the forum would depend on the rules of that particular court.

State Supreme Courts’ approaches to ‘long-arm jurisdiction’ depend on where the defendant is located. If within Australia, the rules are effected by the Service and Execution of Process Act 1992 (Cth) as modified by the rules of the forum court. Within New Zealand, the rules are in the Trans-Tasman Proceedings Act 2010 (Cth)—legislation in the spirit of the Hague Conference on Private International Law—as modified by the rules of the forum court. Defendants in any other foreign country are captured by the rules of the forum court. The same goes for the Federal Court of Australia via the Federal Court Rules 2011 (Cth); see Overseas Service and Evidence Practice Note (GPN-OSE).

In characteristically Western Australian fashion, the Supreme Court of Western Australia has historically taken a unique approach to service out as compared to other State Supreme Courts of the Federation. As Edelman J explained in Crawley Investments Pty Ltd v Elman [2014] WASC 233, [45], the Western Australian rules have derived from Chancery practice, whereas the approach under the historical Supreme Court Rules 1970 (NSW) pt 10—underpinning leading authorities like Agar v Hyde (2000) 201 CLR 552—was quite different. See Agar v Hyde, CLR 572 [16].

The key difference was that the Supreme Court of WA had retained a need for leave to serve outside of the jurisdiction in advance, together with leave to have the writ issued, for persons outside Australia and not in New Zealand: see historical RSC O r 9 and O 10 r 4. Previously, the Federal Court was somewhat similar by also requiring leave, until it took a new approach from January 2023.

Some years ago, the Council of Chief Justices’ Rules Harmonisation Committee agreed to harmonise the rules as to service out as between Australia’s superior courts. New South Wales took the step of giving effect to what were then ‘new rules’ back in 2016. I discussed those changes with Professor Vivienne Bath: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160. Other States took the same approach.

In comparison to WA, the ‘new approach’ of the eastern States’ courts required very little connection between the forum jurisdiction and the subject matter of the dispute. For example, the Supreme Court of NSW could claim jurisdiction over a claim involving a tort occurring outside Australia provided there was just some damage occurring in Australia (not occurring in New South Wales—occurring in Australia): see Uniform Civil Procedure Rules 2005 (NSW) sch 6(a). Damage in the forum was not enough in the Supreme Court of WA: the tort had to occur in Western Australia (not just occurring in Australia): see historical RSC O 10 r 1(1)(k).

Through the Amendment Rules, the Supreme Court of WA is finally giving effect to what was agreed by the Rules Harmonisation Committee.

The changes for practice in the Supreme Court of Western Australia are significant in a number of respects. The full impact of the changes will require further pondering. The following is immediately apparent.

First, RSC Order 10 has been replaced with most significant impact for cases where the person to be served is outside Australia and not in New Zealand: see the new RSC O 10 div 3.

Second, service outside Australia is now possible without leave in the same circumstances that service would be permitted without leave in other ‘harmonised’ jurisdictions, like the Supreme Court of NSW. See the new RSC O 10 r 5.

Third, even if the circumstances do not satisfy the very broad pigeonholes of connection specified by the new RSC O 10 r 5, service outside Australia is still permissible with leave if the claim has a real and substantial connection with Australia, and Australia is an appropriate forum (which oddly means not a clearly inappropriate forum per the Australian doctrine of forum non conveniens—a whole other conundrum), among other things: see the new RSC O 10 r 6(5).

A remaining issue is the interaction between the new RSC O 10 and RSC OO 11 and 11A, particularly as regards service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The latter order deals with service under the Hague Convention, but it is not clear if the Hague Convention procedure for service out displaces the autochthonous procedure for service out under RSC O 10, or merely prescribes the manner or mode of service in convention countries as opposed to impacting substantive bases for whether long-arm jurisdiction is warranted.

The relationship between the historical OO 10, 11 and 11A has been one for debate, as recognised by my co-author Bell CJ in chapter 3 of the latest edition of Nygh’s Conflict of Laws in Australia: see [3.27]. The situation remains confusing. I am still confused. I look forward to becoming less confused after conferring with more learned colleagues.

The changes will likely be welcomed by the profession. They make cross-border litigation easier in Western Australia. They will make life easier for ‘foreign’ east-coast practitioners trying to dabble at practice in WA.

But I expect they will be lamented by many in the private international law community. Most academics I know subscribe to the Savigny orthodoxy that forum shopping is bad, and courts should only seize themselves of jurisdiction when they have a genuine, or real and substantive, territorial connection to the subject matter of the dispute. I know Professor Reid Mortensen will criticise these changes as ‘exorbitant’ and contrary to principle. I disagree with Reid (to hell with multilateralism—Australia first!) but I respect the arguments to the contrary. We can all agree: these changes reaffirm Australia’s unique willingness to exercise jurisdiction in a way that many foreign courts would consider exorbitant.

Following the publication of two seminal books on the recently adopted HCCH 2019 Judgments Convention (Mattias Weller et al. (eds), The HCCH 2019 Judgments Convention – Cornerstones, Prospects and Outlooks (Hart, 2023) and Ronald A. Brand et al, The 2019 Hague Judgments Convention (OUP, 2023), Eva Jueptner’s newly published work delves into the extensive history of this project, which has now moved on to address issues of international (direct) jurisdiction in civil and commercial matters (for details on the ongoing “Jurisdiction Project”, see here). Entitled “A Hague Convention on Jurisdiction and Judgments – Why did the Judgments Project (1992-2001) Fail?” Jueptner’s book attempts to shed light on the root causes of the original project’s setbacks.

Undoubtedly, this book is not the first foray into exploring the issue of the project’s failure, which was initiated in 1992, and proposing lessons to be gleaned from past experiences (whether through books, articles, or book chapters). However, it stands out as the first comprehensive volume devoted to this crucial subject. Consisting of an Introduction and nine Chapters, each chapter title – with the exception of Chapters 1 and 9 – is posed as a question. Chapter 9 serves as a concluding reflection, presenting “Lessons (to be) Drawn from the Failure of the Judgments Project.”

The book’s complete table of contents is available here.

The book’s description reads as follows:

A Hague Convention on Jurisdiction and Judgments (1992–2001): Why did the Judgments Project Fail? provides the first comprehensive analysis of the question of why the original Judgments Project of the Hague Conference on Private International Law failed in 2001. The ‘Judgments Project’, sometimes referred to as the holy grail of private international law, was a remarkable and important undertaking. Its purpose was to create a global regime to secure the recognition and enforcement of foreign judgments in civil and commercial matters, as well as globally applicable rules on international direct jurisdiction, determining which national courts can hear international civil and commercial proceedings. Key players in the project included the member states of the European Community and the United States of America.

 By applying an interdisciplinary approach of legal analysis and project management, the book demonstrates that the preparation and management of the pre-negotiation phase of the project were not commensurate to the complexity of the endeavour, which is likely to have contributed substantially to the discontinuation of the project. The patterns of previous successful Hague Conference project management, as demonstrated by the work on the 1980 Hague Child Abduction Convention and the 1993 Intercountry Adoption Convention, are also analysed, with the perspective that these patterns, which comprised an assessment of the need for and the desirability of new convention projects, as well as their technical and political feasibility, were largely absent from the Hague Judgments Project.

 Determining why the Hague Judgments Project failed is important not only from the perspective of legal history, but also for future efforts to unify grounds of jurisdiction on a global level. As this book shows, unifying grounds of jurisdiction on a global level is not an impossible undertaking. Rather, in order to create a successful instrument on jurisdiction, it is vital that the right lessons are drawn from the failed Judgments Project. This book will therefore be of interest for policymakers and legal scholars working on the unification of rules of international direct jurisdiction and rules concerning the recognition and enforcement of foreign judgments in civil and commercial matters. By illustrating that the failure to adopt an approach guided by sound project management principles is likely to have contributed to the failure of the negotiations, this book also contributes to the literature on international relations and successful treaty-making at international conferences and in international organisations.

About the Author

Dr Eva Jueptner is a Lecturer in Law and Baxter Fellow at the University of Dundee (Scotland, United Kingdom). Prior to joining the University, Eva worked at the Institute for Private International Law and Civil Procedure at the University of Bern (Switzerland). Eva’s research focuses on private international law in general, and on issues of international jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters in particular.

In spite of what the focus of academic discourse sometimes seems to suggest, the area of judicial cooperation in civil and commercial matters within regional integration communities is by no means limited to the European Union and perhaps MERCOSUR. To the contrary, initiatives such as the Nigeria Group on Private International Law (NGPIL) and the Uniform Acts developed within the framework of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), as well as the legal assistance instruments long established by the League of Arab States (LAS) along the Mediterranean coast, as well as the Communauté économique et monétaire d’Afrique centrale (CEMAC) and its 2004 Accord on judicial cooperation are striking evidence of a keen interest in Private International Law on the African continent as well (for a comparative perspective see M. Weller, ‘Mutual Trust’: A suitable foundation for private international integration communities and beyond?, RdC 423 (2022), Chapter V, paras. 224-281).

So far, however, no successful attempt seems to have been made to pursue legal integration at a continental level. In the following, we would like to modestly point out two recent developments that might have a potential to make a difference in this respect.

First, the HCCH has endorsed the establishment of a Regional Office in Africa during GCAP 2024. In particular, the Kingdom of Morocco stated that it will submit a proposal for the establishment and hosting of such a PB subdivision next year (C&D 64). After several unsuccessful attempts,[1] a physical presence in Africa, which will likely also extend to the Arabian Peninsula, represents a major step towards the involvement of African States in the HCCH while increasing the global visibility of the world organisation for judicial cooperation. Indeed, multilingual Morocco, at the crossroads of North Africa with both Europe and the Arab world, seems to be a good location for such an endeavour.

Second, the African Union (AU) appointed Prof. Hajer Gueldich, Université de Carthage, as legal counsel to the Union in February 2024. In this role, the former chairperson of AUCIL will examine, among other things, how legal cooperation between the Member States might be improved and what degree of judicial integration is feasible within the framework of the African Union. This ambitious project is a manifestation of Aspiration 3 of the Agenda 2063: “The continent’s population will enjoy affordable and timely access to independent courts and judiciary that deliver justice without fear or favour”.

This could well be the beginning of a fruitful consolidation of legal cooperation structures on the African continent (AU) and the successful integration of this world region into the context of interregional and global judicial cooperation (HCCH).

[1] See HCCH Prel. Doc. No. 6 of 2015 – Africa Strategy, paras 7 and 10.

Third International Seminar on Rights In Rem in the European Union “Conflict of Laws on rights in rem in the EU: Status Quo and Proposals for the Future” is the closing dissemination activity within the project PID2020-112609GB-I0 Property Rights System over Tangible Goods in the Field of European Private International Law: Aspects of International Jurisdiction and Applicable Law, funded by the Spanish Government.

The seminar aims to offer discussions on various aspects of the conflict of laws rules concerning rights in rem. The debate is particularly relevant at a time when more and more academic associations (GEDIP and EAPIL) and other actors in private international law advocate for a legislative proposal by the European Union in this field. The rich conference programme will surely be of interest to many, and infromation about the venue and registration is available at the conference webpage.

This seminar is organised by the Rovira i Virgili University (Tarragona), the University of Barcelona and the University of Lleida, as well as the First and the Second seminars.

The first issue of the Chinese Journal of Transnational Law (Vol.1 Issue 1, 2024) was recently published by SAGE. It includes three articles relevant to private international law.

Consensus and Compulsion: The Extra-territorial Effect of Chinese Judicial and Specially-Invited Mediation in Common Law Countries, Jie (Jeanne) Huang
This article conducts exhaustive research on case law in major common law jurisdictions (Australia, Canada, Hong Kong, New Zealand, Singapore, the UK, and the US) regarding the recognition and enforcement of Chinese judicial mediation decisions (MTS). In contrast to the rich literature criticizing the systematic deficiency of Chinese judicial mediation where an adjudicator plays the dual role of mediator and judge in the same case and the consequent injustice to the parties, the deficiency is not an issue currently in recognition and enforcement of MTS in common law jurisdictions. Why is this so and what would be the future trend? Answering these questions, this article explores the recent expansion from judicial mediation to Specially-Invited Mediation at the people’s courts in China and discusses whether the features of Specially-Invited Mediation impact the recognition and enforcement of MTS at the common law jurisdictions. It also addresses controversies on applicable law, challenges to the enforceability of civil liability clauses, debates on the finality of MTS, and recognition and enforcement of MTS under China’s judicial assistance agreements, the Hague Choice-of-Court Convention, the Hague Judgments Convention, and the Singapore Mediation Convention.

Procedural Estoppel in International Commercial Arbitration Proceedings, Ilias Bantekas
This article argues that arbitral practice has effectively given rise to a general principle whereby the parties to arbitral proceedings are deemed to have waived rights arising from a procedural rule where they have failed to timely raise an objection against a procedural irregularity. Tribunals do not refer to such a process as abuse of right, or procedural estoppel, but as a tacit waiver of procedural rights. Even so, the effects are the same. This rule is well enshrined in article 4 of the UNCITRAL Model Law on International Commercial Arbitration. There is a line of domestic case law suggesting that the presumption in favour of the waiver does not apply where the party in question had no knowledge of the facts giving rise to the breach; where failure to apply it was not predicated on bad faith and/or; where the delay in exercising the right was not significant.

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law, Zhen Chen
This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

The UNCITRAL secretariat is pleased to announce that the inaugural edition of the UNCITRAL Days in the Arab Sates is planned for 2024!

The UNCITRAL Days activities comprise academic gatherings organized with universities and institutions of higher learning in the region, which discuss and consider issues arising in UNCITRAL’s areas of work, i.e. the progressive harmonization and modernization of international commercial law through the adoption, use and implementation of legal texts. The events seek to raise awareness of UNCITRAL instruments and the of legal harmonization amongst the next generations of academics and policymakers.

This series of events will be held between 15 April – 31 December 2024 under the following theme: “The role of UNCITRAL in the modernization of international trade law in the Arab States”.

Information regarding the organization of an event within the framework of the UNCITRAL Days in the Arab States in 2024 can be found in the attached document in Arabic and English language.

If your institution is interested in organizing an event, simply fill out the form available at https://forms.office.com/e/nZifBytPsC or by scanning the QR code below.

The secretariat will contact you afterwards to discuss practicalities.

by Salih Okur (University of Augsburg)

On 8 and 9 March, scholars from more than a dozen different jurisdictions followed the invitation of Tobias Lutzi to discuss recent trends in punitive damages at the University of Augsburg, Germany. Despite an unfortunate combination of rail and flight strikes, only a small number of participants were ultimately unable to make it to Augsburg. While their presence was dearly missed, the option of participating in the conference online meant that nothing stood in the way of more than 50 scholars of private and private international law devoting the next 26 hours to critically discuss whether and to what extent a strict refusal to recognise foreign punitive damage awards – as notably upheld in Germany – was still tenable in light of international developments.

The conference contained five panels overall, which were split into three blocks. It was kicked off by Tobias Lutzi and Marc Lendermann (Federal Ministry for Digital and Transport, Germany), who underlined the continued relevance of punitive damages as a research topic, despite the German Federal Court of Justice’s landmark decision from 1992 (BGHZ 118, 312), which appears to have stopped claimants from seeking enforcement of punitive damage awards in Germany. It evidently has not stopped claimants from seeking enforcement of punitive damage awards in other civil law legal systems. As the conference would highlight on the second day, some legal systems, including Italy, France, and South Korea, which originally refused to recognise foreign decisions on grounds similar to those of the German Federal Court of Justice (BGH), have abandoned their strict refusal and adopted a more nuanced approach. This constant flow of international change and developments alone makes it worthwhile to keep the academic conversation going.

The first block then focused on the origin, scope, and, particularly, on the purpose of punitive damage awards. In his paper on “Compensation, Punishment, and the Idea of Private Law”, Lukas Rademacher (University of Kiel) explained the idea of punitive damages and its compatibility with German private law. Rademacher took a closer look at the BGH’s landmark decision from 1992, which deemed the concept of punitive damages intolerable in Germany mainly because its function to punish and deter doesn’t fall in the scope of German private law’s concept of strict compensation; punishment and deterrence are entirely reserved for criminal law. Rademacher then analysed whether punitive elements could be found in German tort law. He identified damage awards for pain and suffering and loss of personality as potential examples of over-compensatory remedies in German private law. Rademacher explained that these awards, when not relating to an actual loss, still serve semi-compensatory interests, especially the idea of satisfaction. In contrast to punitive damages, these interests aren’t objective sanctions detached from compensation, as they are still a means to restore an infringed right and restore equality between the tortfeasor and the injured party.

Subsequently, Jan Lüttringhaus (University of Hanover) focused on “Punitive Damages and Insurance”, picking up the BGH’s concerns regarding the insurability of punitive damage awards (which the Court deemed an incalculable and uninsurable risk). Lüttringhaus immediately dismissed these concerns, as the numbers necessary for insurability exist. According to him, data on punitive damages is well documented, delivering the required statistical data on frequency and severity of loss, which allows the inference of an average loss and therefore an adequate premium. Lüttringhaus then addressed the much more fundamental question of whether punitive damages should be insurable, as this could impede their punishing and deterrent character. On the other hand, insurability could guarantee payment where the defendant lacks the financial capacity, and the punitive and deterrent effect could still be achieved by imposing higher premiums and the tortfeasor having difficulties finding a new insurer.

Catherine Sharkey (New York University) then shifted the conference’s focus away from the stereotypical punitive damage award for intentional malicious conduct and shed light on the question, “Who’s Afraid of Punitive Damages for Product Liability?”. She observed that punitive damages in the U.S. are awarded much more often against corporations and businesses for not keeping up with safety standards than against individuals for intentional malicious conduct. Thus, it seems hard to sustain the idea of retribution when discussing punitive damages, as with corporations and businesses, there is “no soul to damn and no body to kick”. Sharkey explained that the idea of societal deterrence and compensation was taking on a more predominant role. This paradigm shift could also be observed in proposals to focus more on what is necessary to achieve adequate deterrence when deciding on whether and how much to award in cases in which punitive damages are a possibility. This idea of social deterrence was further perpetuated, according to her, when considering that many states have implemented split recovery statutes for product liability cases that direct 50 % to 75 % of punitive damage awards to the respective state or a designated fund.

Concluding the first panel (and day) of the conference, Rachel Mulheron (Queen Mary University) shared her insights into “Punitive Damages in English Law”. She pointed out that although parliament abolished punitive damages in certain areas of law (e.g. through the Law Reform Act 1934 and the Competition Act 1998), this has not prevented English courts from awarding punitive damages for common law torts such as defamation and trespass to the person, as has been established in Rookes v. Barnard [1964] AC 1129. Still, English courts seem to struggle to differentiate between compensatory and punitive damage awards. While the Court of Appeal in John v. MGN Ltd. [1997] QB 586 expressly allocated the purpose of vindication to the compensatory limb of defamation cases, the Privy Council in A v. Bottril [2002] UKPC 44 ruled that one function of punitive damages was vindication. Beyond that, punitive damages are not readily available for negligence and privacy torts, as there are lingering uncertainties identifying the requisite trigger for punitive damages.

After the foundation was laid on the first day of the conference, the second day opened with a panel on the public policy exception to the recognition and enforcement of foreign judgments. Cedric Vanleenhove (University of Ghent) gave a paper on “Punitive Damages and Public Policy”. He argued that punitive damages seem to be one of the few legal institutions showing a sharp contrast between common law and civil law jurisdictions. The central mechanism for the rejection of common law punitive damage awards is the public policy exception representing the fundamental values of a society, keeping away foreign judgements if they are manifestly unacceptable when measured against domestic legal standards. In search of the “right” approach regarding the enforcement of punitive damage awards, Vanleenhove emphasised legal coherence: the more the private law of a state derogates from full compensation and allows punitive-like damage awards, the harder it appears to sustain the argument that full compensation is part of public policy. Vanleenhove also examined the relevance of the label given to damage awards. Due to the prohibition of révision au fond, the court of enforcement might feel bound to the court of origin’s compensatory label even if the awarded damages are excessive. As could be seen in the Spanish Real Madrid case currently pending at the Court of Justice, excessive compensatory damages might trigger the public policy exception if the enforcement would give rise to a manifest breach of fundamental rights. French courts, on the other hand, seemed to apply a rather general proportionality test.

In the second paper of the day, Marko Jovanovi? (University of Belgrade) took a closer look at “The Public Policy Exception in the 2019 Hague Judgements Convention” and compared it to similar exceptions in other instruments. Comparing the public policy exception of the 2019 HCCH Judgements Convention with the 1971 HCCH Judgements Convention, the 2005 HCCH Choice of Court Convention, and the Brussels I Recast Regulation, it stands out that all of them require a manifest incompatibility to trigger the respective exception. Only the 1958 New York Convention seems to waive the high threshold of a manifest incompatibility. Nevertheless, academics as well as practitioners agree on applying this exception restrictively. These high hurdles for triggering the public policy exception speak in favour of its application only to extreme cases. However, Jovanovi? reported that some national jurisdictions misused the public policy exception as a barrier against undesirable decisions. As for most of these legal frameworks, there is no international court that oversees the uniform application, so internationalisation seems like a distant goal according to Jovanovi?, no matter how desirable it may be.

After this introduction to the public policy exception, the conference entered its third block on the exception’s actual application to punitive damages awards. The first panel was dedicated to the Netherlands (André Janssen (Radboud University)), Japan (Beligh Elbalti (University of Osaka)) and Germany (Johannes Ungerer (University of Oxford)), all of which still refuse recognition and enforcement of foreign punitive damage awards.

Before going into detail as to why Dutch courts maintain this position, Janssen presented provisions of the Dutch civil code that seem to show punitive elements, e.g., the injured person being entitled to damages for losses, which do not consist of pecuniary damages, if the tortfeasor had the intention of causing such losses. While many Dutch authors recognise punitive elements in these provisions, the Dutch Supreme Court does not share this view and denies the existence of punitive elements. Interestingly, in 2012, the Rechtbank Amsterdam enforced 5,000 € worth of punitive damages, arguing that the fact that Dutch law doesn’t recognise punitive damages does not mean that they are contrary to Dutch public policy. However, in the Hof’s Hertogenbosch case from 2021, a Dutch court denied recognition and enforcement of a punitive damage award because its character was incompatible with the fundamental nature of Dutch liability and compensation law, and beyond that, the award of $250,000 in that case was seen as disproportionate to the compensatory part.

The Japanese Supreme Court, in its Kyogo decision, reached the same conclusion as to the incompatibility of punitive damages with Japanese public policy. The court argued that the purpose of punitive damages was the same as that of criminal law, whereas Japanese tort law seeks only to restore the actual loss suffered by the victim. Based on this fundamental difference, foreign punitive damage awards are considered incompatible with the Japanese civil law system. Although the Supreme Court allowed for partial recognition and enforcement of the compensatory part, claimants cannot enforce the punitive part in the country of origin and eventually enforce the compensatory part in Japan, as Japanese courts then treat the punitive part of the decision as non-existent. Furthermore, Elbalti reported that in the academic debate, it remained unclear whether punitive damages are incompatible with Japanese public policy per se or if aspects of proportionality should be of relevance.

Finally, Ungerer argued that Germany’s rejection of foreign punitive damage awards was the result not of fear but rather of a principled approach. He emphasised the protection of German creditors as enforcing excessive punitive damage awards entails the risk of draining the defendant’s assets at the expense of domestic creditors. He also noted the risk of the defendant who faces a punitive damage award becoming insolvent, potentially leading to the claims of all the other creditors becoming worthless. Ungerer further stressed that Germany’s practice of awarding damages for immaterial losses while simultaneously rejecting foreign punitive damage awards does not make Germany guilty of a double standard, as those awards still observe a compensatory relation and limitation, similar to the point made by Rademacher on the first day of the conference. So, according to Ungerer, Germany’s rejection of enforcing punitive damages can be seen as an unafraid and principled measure.

The last panel of the conference was dedicated to France (Samuel Fulli-Lemaire (Université de Strasbourg)), Italy (Caterina Benini (Università Cattolica del Sacro Cuore)) and South Korea (Min Kyung Kim (Incheon District Court)), all of which have recently started to recognise and enforce punitive damage awards under certain circumstances.

Fulli-Lemaire clarified that France was never that afraid of punitive damages. Up until the landmark decision of the Cour de Cassation in 2010, there had been strong academic support for the recognition and enforcement of punitive damage awards. Still, in 2010, the Cour de Cassation, in its Fontaine Pajot case, made clear that this support is not without exception. The public policy exception might still trigger when the amount of punitive damages awarded is disproportionate to the loss sustained and to the severity of the breach of duty. Unfortunately, the Cour de Cassation did not give further guidelines regarding the proportionality test. On top of that, it remains unclear what even qualifies as an award for punitive damages and whether the French courts are bound by the qualifications of the original court. Fulli-Lemaire stressed that one must always keep in mind the prohibition of révision au fond, though.

In contrast to France, Benini reported that Italy was indeed once scared of punitive damages, e.g. when the Italian Supreme Court rejected recognition and enforcement of an Alabamian judgement in 2007, arguing that punitive elements were alien to Italian civil liability. Ten years later, in 2017, the Italian Supreme Court held that the evolution of civil liability, though, still predominantly serving compensation, led to also considering punitive and deterrent purposes. Thus, punitive damages were not ontologically incompatible with Italian public policy. Again, there are conditions the foreign award must comply with in order not to trigger the Italian public policy exception. Namely, the punitive damage award must be reconcilable with the legality (typicality and predictability) and proportionality principles. In Italy, the courts apply the proportionality test by comparing the amount of punitive damages to compensatory damages as well as the severity of the wrongdoer’s conduct.

Similarly to Italy, South Korean courts also rejected the enforcement of punitive damage awards, as the principle of full compensation was part of South Korean public policy. Kim describes that in 2011, the South Korean legislator began introducing acts providing treble, quadruple, and even quintuple damages, softening up the principle of full compensation in South Korean private law. With this in mind, in 2022, the Korean Supreme Court recognised that, at least when the cause of damages in a foreign judgement falls within the purview of this Korean legislation, it was difficult to justify a manifest incompatibility with fundamental principles of South Korean private law, – very much in line with Vanleenhove’s previous call for legal coherence. It remains unclear, though, whether South Korea will eventually overcome its fear of punitive damages more broadly and resort to a more generous proportionality test, similar to France and Italy.

Overall, the conference aptly demonstrated that there is still a lot of comparative legal research to be done in the field of punitive damages. The conference proceedings, which will be published by Mohr Siebeck and will contain extended versions of the papers, will certainly contribute to this endeavour.

On Tuesday, April 9, 2024, the Hamburg Max Planck Institute will host its 43rd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Bettina Heiderhoff (Universität Münster) will speak, in German, about

The presentation will be followed by an 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.

Originally posted on the NGPIL Website

“The winner of the 2024 NGPIL (Nigeria Group of Private International Law) Conflict of Law’s Essay Prize is Peace George, a recent LLB graduate with admission to the Nigerian Law School. Her essay is entitled “Domicile, Nationality and Habitual Residence: What Option for Nigeria” and was awarded 150,000 NGN [Naira] as the winning essay. The essay was of excellent standard and demonstrated a deep understanding of the principles at hand, analysing them to a high standard…”

The Permanent Bureau of the HCCH is pleased to announce that the webinar “HCCH 2005 Choice of Court Convention: Fostering Access to Justice for Cross-Border Commerce in the Asia Pacific Region” will be held this Friday, 22 March, from 16:00 to 17:30 p.m. (Hong Kong time).

The webinar will feature the following topics and speakers:

• Welcome remarks, by Dr Christophe Bernasconi (HCCH)
• Overview of the Choice of Court Convention, by Ms Melissa Ford (HCCH)
• Application of the Choice of Court Convention in Singapore, by Prof Adeline CHONG Swee Ling (Singapore Management University)
• Choice of Court Convention and the People’s Republic of China, by Prof Zheng TANG (Wuhan University)
• Choice of Court Convention and the ASEAN Members – taking Indonesia as an example, by Prof Afifah Kusumadara (Brawijaya University)
• Concluding remarks, by Prof Yun ZHAO (HCCH)

For more information, please consult the webinar’s programme.

The Conclusions & Decisions of the Council on General Affairs and Policy (basically, the governing body – CGAP) of the Hague Conference on Private International Law (HCCH) were published this week. Click here.

What is remarkable is that this year’s Conclusions & Decisions, as well as other Preliminary Documents, were also published in Spanish. It is the first time in the history of this governing body that documents are translated into Spanish and signals its commitment and the looming deadline when Spanish will become an official language of the HCCH (i.e. 1 July 2024). Many congratulations to the HCCH team, it has been a long road.

A few takeaways from the Conclusions & Decisions are the following:

There has been a revitalization of the commercial and financial law area with work being undertaken regarding Digital Assets and Tokens, Central Bank Digital Currencies (CBDC), Digital Economy, Digital Tokens, Restructuring and Insolvency and Voluntary Carbon Markets. In particular, the Council mandated “the establishment of an Experts’ Group to study the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs” (Conclusion & Decision No 10).

A few Working Groups will continue to meet in the coming year, namely Financial Aspects of Intercountry Adoption, Surrogacy and Jurisdiction.

A new Working Group has been established with respect to the 1996 Child Protection Convention (Conclusion & Decision No 26): “CGAP mandated the establishment of a WG on the operation of Article 33 of the 1996 Child Protection Convention, first, to develop a Model Form and, subsequently, a Guide on the application of Article 33. The WG will report on its progress to CGAP 2025.” This is a significant development, in particular regarding the streamlining of how to handle kafalas. See also the work of FAMIMOVE. Another Working Group will deal with the 1996 Country Profile.

With regard to post-Convention work, a few meetings will take place:

• A meeting of the International Hague Network of Judges in Rio de Janeiro, Brazil from 15 to 17 May 2024.
• Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention in Sandton, South Africa, from 18 to 21 June 2024. This is the result of the Conclusions & Recommendations of the meeting of the Special Commission that took place last year and the existing concerns about domestic violence.
• Malta V, in Valetta from 24 to 27 September 2024. The Malta Process is a dialogue involving both Contracting States to the 1980 Child Abduction Convention and the 1996 Child Protection Convention, and non-Contracting States whose legal systems are based on or influenced by Islamic law (“Shariah”). Click here.
• Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions to take place from 2 to 5 July 2024 in The Hague.

A more intriguing Conclusion is the following regarding Trusts (Conclusion & Decision No 55):

CGAP noted the PB’s work in relation to the 1985 Trusts Convention, and mandated the PB, in partnership with relevant subject-matter experts, and subject to available resources, to continue to study the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention, with a focus on:

a. clarifying the divergences in interpretation between the English and French versions of the Article; and

b. exploring whether analogous institutions would include foundations and endowments, institutions and developments relating to the waqf in the Islamic legal tradition, and decentralised autonomous organisations (DAOs) and other similar structures.

Finally, it is worth mentioning the developments regarding iSupport. The Council noted “the first official exchange of data using iSupport between Germany and Sweden, and their continued use of iSupport” (Conclusion & Decision No 38).

Written by Xandra Kramer (Erasmus University Rotterdam/Utrecht University) & Eduardo Silva de Freitas (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.

Introduction

We have reported on the Dutch WAMCA procedure for collective actions in a number of previous blogposts. This collective action procedure was introduced on 1 January 2020, enabling claims for damages, and has since resulted in a stream of (interim) judgments addressing different aspects in the preliminary stages of the procedure. This includes questions on the admissibility and funding requirements, some of which are also of importance as examples for the rolling out of the Representative Action Directive for consumers in other Member States. It also poses very interesting questions of private international law, as in particular the collective actions for damages against tech giants are usually international cases. We refer in particular to earlier blogposts on international jurisdiction in the privacy case against TikTok and the referral to the CJEU regarding international jurisdiction under the Brussels I-bis Regulation in the competition case against Apple.

In this blogpost we focus on two follow-up interim judgments: one in the collective action against TikTok entities and the other against Google. The latter case is being discussed due to its striking similarity to the case against Apple.

The next steps in the TikTok collective action

The collective action against TikTok that was brought before the Amsterdam District Court under the Dutch WAMCA in 2021. Three representative organisations brought the claim against seven TikTok entities located in different countries, on the basis of violation of the Code of Conduct of the Dutch Media Act and the EU General Data Protection Regulation (GDPR). The series of claims include, among others, the destruction of unlawfully obtained personal data, the implementation of an effective system for age registration, parental permission and control, measures to ensure compliance with the Dutch Media Act and the GDPR as well as the compensation of material and immaterial damages.

In an earlier blogpost we reported that the Amsterdam District Court ruled that it had international jurisdiction under the Brussels I-bis Regulation and the GDPR. In the follow-up of this case, the court reviewed the admissibility requirements, one of which concerns the funding and securing that there is not conflict of interest (see Tzankova and Kramer, 2021). This has led to another interim judgment focusing on the assessment of the third party funding agreement as two out of the three claimant organisations had concluded such agreement, as reported on this blog here. In short, the court conditioned the admissibility of the representative claimant organisations on amendments of the agreement with the commercial funder due to concerns related to the control of the procedure and the potential excessiveness of the fee. The court provided as a guideline that the percentage should be determined in such a way that it is expected that, in total, the financers can receive a maximum of five times the amount invested.

On 10 January 2024 the latest interim judgment was rendered. Without providing further details the Amsterdam District Court concluded that the required adjustments to the funding agreement had been made and that the clauses that had raised concern had been deleted or amended. It considered that the independence of the claimants in taking procedural decisions was sufficiently guaranteed. The court declared the representative organisations admissible, appointing two of them as Exclusive Representative (one for minors and the other for adults) based on their experience, the number of represented people they represent, their collaboration and support. The court confirmed its statement made in a previous interim judgment that the claim for immaterial damages is inadmissible as that would require an assessment per victim, which it considered impossible in a collective action. This is admittedly a setback for the collective protection of privacy rights, notably similar to the one following the 2021 United Kingdom Supreme Court ruling in Lloyd v Google.

With this last interim judgment the preliminary hurdles have been overcome, and the court proceeded to provide further guidelines as to the opt-out and opt-in as the next step. The WAMCA is an opt-out procedure, but to foreign parties in principle an opt-in regime applies. The collective action was aimed representing people in the Netherlands, but was extended to people who have moved abroad during the procedure, and these are under the opt-in rule. The information on opt-out and opt-in will be widely published.

It remains to be seen how the case will progress considering the further procedural decisions and the assessment on the merits.

The claim against Google and its private international law implications

Another case with an international dimension is the collective action for damages against Google that was filed under the WAMCA, alleging anticompetitive practices concerning the handling of the app store (DC Amsterdam, 27 December 2023, ECLI:NL:RBAMS:2023:8425; in Dutch). This development comes amidst a landscape marked by high-profile antitrust collective actions with international dimensions, such as the one filed against Apple, in which there is an ongoing legal battle regarding Apple’s alleged anticompetitive behavior in the market for app distribution and in-app products on iOS devices. Cases like these are either pending before courts or under investigation by competition authorities worldwide, reflecting a broader global trend towards increased scrutiny of antitrust practices in the digital marketplace.

In the present case, the claimant organisation argues that the anticompetitive nature of Google’s business stems from a collection of practices rather than an isolated practice. Such a collection of practices would shield Google from nearly all possible competition and allow it to charge excessive fees due to its dominance in the market. The practices that, taken together, form this anticompetitive behaviour are essentially:

(i) The bundling of pre-installed apps, including Google’s Play Store, with the licensing of the Android operating system to the manufacturers of smartphones;

(ii) The imposition that transactions related to the Play Store be undertaken only within Google’s own payment system;

(iii) The charging of a fee of 30% from the app’s developer, which the claimant organisation deems abusive and only possible due to Google’s dominant position created by the abovementioned practices.

Based on these allegations, the claimant organisation accuses Google of engaging in mutually exclusive and exploitative practices, thereby abusing a dominant position in a manner contrary to Article 102 TFEU. This case unfolds within a broader global context where antitrust actions against Google’s Play Store, its payment system, and the bundling with the Android operating system have gained significant momentum. Just last December, Google reached a settlement in a multidistrict litigation involving all 50 states of the United States, the District of Columbia, Puerto Rico, and the Virgin Islands. The settlement addressed issues very similar to those raised in this case, as explicitly outlined in the agreement. The Competition and Markets Authority in the United Kingdom is also conducting an antitrust investigation into these aspects of Google’s operations. Furthermore, the practice of pre-installing Google apps as a requirement for obtaining a license to use their app store is under investigation by the Brazilian Competition Authority.

From a private international law perspective, this case closely resembles another one against Apple referred to the CJEU by the District Court of Amsterdam and discussed earlier in this blog, in which similar antitrust claims were raised due to the handling of the app store and the exclusionary design of the respective payment system. However, unlike the collective action against Apple, in this case the District Court of Amsterdam clearly did not refer the case to the CJEU and instead decided by itself whether it had jurisdiction to hear the claim. And again, like the Apple case, the court was called upon to decide on both international jurisdiction and its territorial jurisdiction within the Netherlands.

International jurisdiction

The collective action under the Dutch WAMCA in the Google case was filed against a total of eight defendants. Two of the defendants (Google Netherlands B.V. and Google Netherlands Holdings B.V.) against whom the claim was filed are established in the Netherlands, and for them the standard rule of Article 4 Brussels I-bis Regulation applies. There are also three other defendants (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) established in another EU Member State, namely Ireland. With regards to these defendants, the court also assessed whether it had jurisdiction based on the Brussels I-bis Regulation. Finally, there are three defendants based outside of the EU – Alphabet Inc. and Google LLC in the United States and Google Payment Limited in the United Kingdom. Jurisdiction with regards to these defendants based outside of the EU was established under the pertinent rules contained in the Dutch Code of Civil Procedure (DCCP).

The court initiated its assessment by recognizing that, due to the lack of jurisdiction rules specifically addressing collective actions in both the Brussels I-bis Regulation and the Dutch Code of Civil Procedure, the standard rules within these frameworks should be applied. The court’s reasoning was based on the established principle that no differentiation exists between individual and collective actions when determining jurisdiction. The court primarily conducted its assessment regarding whether the Netherlands could be considered the Erfolgsort under Article 7(2) of the Brussels I-bis Regulation, mostly ex officio, as this was not a point of contention between the parties.

The court’s view is that the criteria from Case C-27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533) should be applied, according to which the location of the market affected by the anticompetitive practice is the Erfolgsort. The location of the damage is where the initial and direct harm occurred, which primarily involves users overpaying for purchases made on the Play Store. In the present case the court, applying such criteria, decided that the Netherlands can be considered the Erfolgsort, given that the claimant organisation represents users that make purchases and reside in the Netherlands. This reasoning is very similar to the one used by the District Court of Amsterdam in deciding to refer the Apple case to the CJEU.

Territorial jurisdiction within the Netherlands

With regards to the jurisdiction of the District Court of Amsterdam to hear this collective action in which the claimant organisation sues on behalf of all the users residing in the Netherlands, the decision contains an assessment starting from the CJEU ruling in Case C-30/20 Volvo (ECLI:EU:C:2021:604). Such ruling states that Article 7(2) Brussels I-bis Regulation grants jurisdiction over claims for damages due to infringement of Article 101 TFEU to the court where the goods were purchased. If purchases were made in multiple locations, jurisdiction lies with the court where the alleged victim’s registered office is located.

In the case at hand, given the mobile nature of the purchases, it is not possible to pinpoint a specific location. However, under the criteria just mentioned, the District Court of Amsterdam has jurisdiction over the victims’ registered offices for those residing in Amsterdam in accordance with both Article 7(2) Brussels I-bis Regulation (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) and the similar provision in Article 102 DCCP (Alphabet Inc., Google LLC, and Google Payment Limited).

For users residing elsewhere in the Netherlands, the parties agreed that the District Court of Amsterdam would serve as the chosen forum for users who are not based in Amsterdam. The court decided that, with regards to Alphabet Inc., Google LLC, and Google Payment Limited, this is possible under Article 108(1) DCCP on choice of court. As to Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited, the court interpreted Article 7(2) Brussels I-bis Regulation in light of the principle of party autonomy (see Kramer and Themeli, 2016) as enshrined in Recitals 15 and 19, as well as Article 25 Brussels I-bis Regulation. The court also noted that no issues concerning exclusive jurisdiction arise in the present case and made a reference to the rule contained in Article 19(1) Brussels I-bis Regulation according to which the protective rule of Article 18 Brussels I-bis Regulation can be set aside by mutual agreement during pending proceedings.

Finally, the court decided that centralising this claim under its jurisdiction is justified under the principle of sound administration of justice and the prevention of parallel proceedings. In the court’s understanding, the goal of Article 7 Brussels I-bis Regulation is to place the claim before the court that is better suited to process it given the connection between the two and, given that the mobile nature of the purchases gives rise to damages all over the Netherlands, such a court would be difficult to designate. Hence the need for respecting the choice of court agreement.

Applicable law

The court established the law applicable to the present dispute under Article 6(3)(a) Rome II Regulation. The court used the same reasoning it had laid out to establish jurisdiction in the Netherlands as the Erfolgsort, since it is the market affected by the alleged anticompetitive practices where the users concerned reside and made their purchases. The court also considered the claimant organization’s argument that, according to Article 10(1) of the Rome II Regulation, the Dutch law of unjust enrichment could govern the claim. Although the court did not provide extensive elaboration, it agreed with this view.

Funding aspects of the claim against Google

Lastly, in a naturally similar way as regarding the TikTok claim explained above, the court assessed the funding arrangements of the claim against Google under the requirements set by the WAMCA. The court took issue with the fact that the funding arrangement entered by the claimant organisation is somewhat indirect, since it is apparent that the funder itself relies on another funder which is not a part of the agreement presented to the court. Under these circumstances, the court deems itself unable to properly assess the claimant organisation’s independence from the “actual” funder and its relationship with the remuneration structure.

For this reason, the court ordered the claimant organisation to resubmit the agreement, which it is allowed to do in two versions. One version of the agreement will be presented in full and will be available to the court only, to assess it in its entirety. The other version, also available to Google, will have the parts concerning the overall budget for the claim concealed. However, the parts concerning the funder’s compensation share must remain legible for discussion around the organisation’s independence from the funder, and confirmation that such agreement reflects the whole funding arrangement of the claim was also required.

On 20 and 21 June 2024, Gralf-Peter Calliess and Nicholas Mouttotos (Institute for Commercial Law, University of Bremen) will convene a conference on ‘Informed Consent to Dispute Resolution Dispute Agreements’ in Bremen. They have shared the following announcement with us:

Dispute Resolution Agreements (DRA) are a very special kind of contract. They allow parties to make a choice on the rights (applicable law) and remedies (competent forum, including procedural rules), which govern their relationship. Party autonomy, i.e. the freedom to enter into DRA, enables international merchants to provide for legal certainty and to bargain on the ‘law market’ for the most efficient institutional framework for their transactions. However, where DRA are included in the fine print of standard form contracts with less sophisticated contract parties, the question of legitimacy arises. For instance, where mandatory consumer rights or constitutional rights to a remedy are waived, a higher quality of consent might be required, one that is informed, instead of a simple manifestation of assent to the transaction. However, ‘informed’ consent has been criticized as a legal fiction.

DRA are regulated by diverse instruments on the national, supra-, and international level. Despite their similarities they are rarely discussed in a consistent fashion. The conference convenes leading scholars of private international law, international civil procedure, international arbitration, and standard form contracts from both sides of the Atlantic in an effort to develop a coherent framework.

In addition to the organizers, the conference will feature Symeon C. Symeonides, Daniel D. Barnhizer, Hannah Buxbaum, John F. Coyle, Nikitas Hatzimihail, Nancy S. Kim, Laura Little, Peter McColgan, Marta Pertegás Sender, Frederick Rieländer, Kermit Roosevelt, Stefan Thönissen, Camelia Toader, and Stephen J. Ware as speakers.

Further information can be found here.

This post is written by Guodong Du and Meng Yu and published at China Justice Observer. It is reproduced here by kind permission of the authors. 

Key takeaways:

• In September 2023, the Shanghai Third Intermediate People’s Court ruled to recognize the Tokyo District Court’s decision to commence civil rehabilitation proceedings and the order appointing the supervisor ((2021) Hu 03 Xie Wai Ren No.1).
• This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment.
• The case establishes a legal precedent for cross-border bankruptcy decisions, demonstrating that prior non-recognition patterns between China and Japan in civil and commercial judgments may not apply in such cross-border scenarios.
• While not resolving the broader recognition challenges between the two nations, this acknowledgment sends a positive signal from the Chinese court, hinting at potential future breakthroughs and fostering hope for improved legal cooperation.

This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment (See the Chinese Court Ruling (2021) Hu 03 Xie Wai Ren No.1 ( (2021)?03???1)).

Related Posts:

• China Recognizes Another German Bankruptcy Judgment in 2023
• How Chinese Judges Recognize Foreign Bankruptcy Judgments
• The First Time Chinese Court Recognizes Singapore Bankruptcy Judgment

The Japanese law firm Nagashima Ohno & Tsunematsu, representing a Japanese company, applied to the Tokyo District Court to initiate civil rehabilitation proceedings (a type of restructuring-type bankruptcy procedure under Japanese bankruptcy law). According to the application, the Tokyo District Court decided to commence civil rehabilitation proceedings and appointed a supervisor to monitor the debtor’s activities.

As the Japanese company had certain assets in Shanghai, to facilitate the smooth progress of the civil rehabilitation proceedings in Japan, the company filed an application with the Shanghai Third Intermediate People’s Court (the “Shanghai Court”), requesting recognition of the Tokyo District Court’s to commence civil rehabilitation proceedings and the order appointing the supervisor. Nagashima Ohno & Tsunematsu provided legal opinions on relevant Japanese laws during the recognition process.

On 6 Sept. 2023, the Shanghai Court made a ruling recognizing the Japanese company’s civil rehabilitation proceedings and the identity of the supervisor, and allowing the supervisor to monitor the company’s self-management of property and business affairs within China under certain conditions.

In reviewing whether there was a reciprocal relationship between China and Japan in recognizing bankruptcy decisions, the Shanghai Court found that:

(1) Both sides have precedents of refusing to recognize each other’s civil and commercial judgments, but these precedents do not necessarily apply to cross-border bankruptcy cases;

(2) According to Japanese laws, there are no legal obstacles to the recognition of Chinese bankruptcy decisions by Japanese courts, which confirms the existence of a reciprocal relationship between China and Japan in the recognition of cross-border bankruptcy cases.

This is the first time that China has recognized a decision made by a Japanese court in bankruptcy proceedings.

China and Japan have been at an impasse regarding the mutual recognition and enforcement of judgments. For more details, please read our earlier post How to Start the Recognition and Enforcement of Court Judgments between China and Japan?.

Related Posts:

• Some Thoughts on the Sino-Japanese Reciprocal Recognition Dilemma in Light of the Recent Developments in the Recognition and Enforcement of Foreign Judgments in China
• How to Start the Recognition and Enforcement of Court Judgments between China and Japan?

According to the Shanghai Court’s statement, this case does not mean that the impasse between China and Japan has been broken, but it does send a positive signal from the Chinese court regarding Japanese judgments. We look forward to further breakthroughs between the two sides.

We have not yet obtained the original text of the judgment made by the Shanghai Court in this case. The above case information is from the website of Fangda Partners, the Chinese law firm representing the Japanese company in this case.

Another case commentary can be found here on the website of the Asian Business Law Institute (ABLI).