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The Japan Commercial Arbitration Association (JCAA), one of the oldest international arbitration institutions in the world, founded in 1950, has published the 5th Volume of its annual journal on commercial arbitration – the Japan Commercial Arbitration Journal.

The journal features articles on international commercial arbitration, mediation, and litigation related to Japan. These articles are authored by prominent scholars and experienced practitioners who are well-versed in the resolution and prevention of international commercial disputes.

 

The Japan Commercial Arbitration Journal is particularly valuable for non-Japanese readers, including foreign researchers and practitioners, as it provides insights into Japan’s approach to international dispute resolution. By offering comprehensive analysis and updates on arbitration, mediation and litigation practices in Japan, the journal helps bridge the knowledge gap for those working in international commercial law. Access to this information is essential for professionals seeking to understand the nuances of Japanese legal procedures and effectively engage with Japan in cross-border commercial matters.

The new volume features the following articles:

Miriam Rose Ivan L. Pereira

Emergency Arbitration at the JCAA: A Review of the Rules and the Changing Landscape

Fumiyasu Miyazaki

Overview of the amendment to Japan’s Arbitration Act

Atsushi FUKUDA, Takahito KAWAHARA

Overview of the Development of International Mediation Legislation in Japan with the Singapore Convention on Mediation

Takanori Kawashima

Multi-Tiered Dispute Resolution Clauses: Effects of Non-Compliance with Pre-Action/Pre-Arbitration ADR Clauses  

Miyuki Watanabe

Due Process in Arbitration – How to Mitigate Due Process Paranoia?

Takanori Abe

Patent royalty claim dismissed due to a demurrer, admitting the reach of an arbitration agreement ?Defendants’ measures and plaintiffs? risk reduction ?

Kazuhiro Kobayashi

Practical Issues in Enforcing International Settlement Agreements Resulting from Mediation

Michael Martinez

Too far, or not enough? Considerations for discovery in the United States and improving efficiency in international arbitration through an analysis thereof

Shuhei Kubota

Arbitration as a Means of Resolving ESG Disputes

Shin-Ichiro Abe

The Development of Sports Arbitration in Japan and Challenges for the Future

Yoshihisa Hayakawa

Advanced Technologies in Tokyo Facilities for Arbitration Hearings

Tony Andriotis, Shingo Okada, Eric Yao

Serving a Party in Japan by Hague Service Convention

Atsushi Shiraki

Asymmetrical Approaches of Extraterritorial Evidence Legislation between the U.S. and Japan

 

 

All volumes can also be freely consulted and downloaded here.

 

I. Introduction

As mentioned in a previous post, Morocco is not only the MENA Arab jurisdiction that has ratified the largest number of the HCCH Conventions (7 in total), but also a country where the HCCH conventions have been actively applied (see here on the application of the HCCH 1980 Child Abduction Convention, and here for a case involving the application of the HCCH 1996 Child Protection Convention). The application of the HCCH Conventions in Morocco offers valuable insights into how these HCCH instruments operate within an Islamic context, challenging the widely held assumption of the existence of an Islamic exceptionalism (though such exceptionalism does exist, but to a varying degree across the Muslim-majority countries. See e.g. Béligh Elbalti, “The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries” in Nadjma Yassari et al. (ed.), Filiation and the Protection of Parentless Children (T.M.C. Asser Press, 2019), 373-402).

In the case reported here, the authenticity certificate of conversion to Islam issued in Spain and to which an Apostille was attached was the crucial issue that the Supreme Court had to address. It must be admitted however from the outset that the case did not directly involve the interpretation and the application of the HCCH 1961 Apostille Convention – officially known as Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. Nonetheless, the case does raise some interesting issues regarding the admissibility of apostillised documents (i.e. document for which an Apostille has been issued). The case also brings to light a significant concern regarding interfaith successions from a private international law perspective in the MENA Arab region, particularly in Morocco. However, while the latter issue is particularly important, for the sake of brevity, the focus here will be placed d on the implication of the Apostille Convention in this case.

 

II. Facts

The case involves a dispute over inheritance of A (apparently a Moroccan national). After A’s death, his heirs (collectively here referred to as “Y”) issued a certificate of inheritance that excluded his wife, a Spanish national (here referred to as “X”) from A’s inheritance. X contested this in the Family Court, claiming her legal rights as A’s widow. Shae argued that Y had unfairly excluded here on the grounds that she was not Muslim, despite having converted to Islam by declaring her faith in the presence of an imam in a mosque in Spain before A’s death, and that she was handed over a certificate confirming her conversion. However, due to the emotional toll of A’s sudden death she forgot to bring the certificate with her at the time of A’s death, and to rectify this, she obtained an official notary document confirming her conversion. In support of her request to be included in the list of A’s heirs, X submitted various legal documents as evidence, including the certificate of her conversion to Islam she obtained in Spain with an Apostille attached to it.

Y, however, requested to dismiss the claim arguing, inter alia, that X was still Christian at the time of A’s death, that the conversion declaration that she made after A’s death had no effect and could not make from a legal heir, therefore, she was not entitled to inheritance since there can be no inheritance between a Muslim and a non-Muslim. Y also argued that her certificate of conversion obtained in Spain was void and had no legal validity even if an Apostille is attached to it.

The Family Court, as the first instance court, ruled in X’s favor and recognized her right to inherit. The decision was later appealed on the grounds, among others, X’s conversion to Islam was fabricated as she was seen performing Christian rituals at the funeral. Y also filed a separate challenge to the authenticity of her foreign certificate of conversion to Islam on the grounds that the certificate was forged. The Court of Appeal, however, dismissed the appeal and upheld the Family Court’s ruling in X’s favor.

Dissatisfied, Y filed an appeal to the Supreme Court.

Before the Supreme Court Y argued, inter alia, that the Spanish conversion certificate was a mere piece of paper without any official administrative references with a signature attributed to a Mosque in Spain. Nonetheless, the court accepted this certificate without verifying its authenticity or the context in which it was issued, such as by consulting relevant records or conducting a judicial investigation with Spanish authorities under the judicial cooperation agreement between Morocco and Spain, and also failed to verify whether the widow was even in Spain on the date the certificate was issued.

 

III. The Ruling

In its ruling No. 167 of 5 April 2022, the Moroccan Supreme Court admitted the appeal and overturned the appealed decision with remand stating as following:

“[…] according to the last paragraph of Article 40 of the convention signed between Morocco and Spain on judicial cooperation in civil, commercial, and administrative matters of 30 May 1997, if there is a serious doubt regarding the authenticity of a document issued by the judicial authorities or other authorities of either country, this should be verified through the central authority of both countries.

[Although] the court of the appealed decision ordered an investigation as part of activating the procedure for alleged forgery against the certificate of conversion to Islam [……] issued by the head of the Islamic Center in Spain, and registered under number (…..) in the registry of Islamic associations at the Ministry of Justice there, [it] failed to observe the procedures stipulated in Article 89 of the Code of Civil Procedure, particularly, by hearing the testimony of the person who issued the certificate and examining its authenticity, regularity, the accuracy of the information it contained and its date; and that by way of a rogatory mission to the competent Spanish authorities in accordance with Article 12 of abovementioned Convention [of 1997], in order to base its decision on verified facts.

As a result, the court’s decision lacked a legal basis and was deficient in its reasoning [……], and therefore, it must be overturned.”

 

IV. Comments

1. About the HCCH 1961 Apostille Convention

 The HCCH 1961 Apostille Convention is undoubtedly one of the most successful HCCH conventions, with its 127 contracting parties (as of the date of the writing). The Convention’s status table shows that more than 15 countries are Muslim-majority jurisdictions or have legal systems influenced by or based on Islamic law. Among them are five Arab jurisdictions from the MENA region: Saudi Arabia, Tunisia, Morocco, Bahrain and Oman. Marocco ratified the Convention on 27 September 2015, and it entered into force on 14 August 2016.

As is widely known, the Convention aims at simplifying the process of authenticating public documents for use abroad. The Apostille Convention eliminates the need for a complex and time-consuming legalization process by introducing a standardized certificate called an Apostille. As such, the Apostille, issued by a designated authority in the State of origin, is a simplified certificate that confirms the authenticity of the document’s origin by certifying the signature on the document is genuine, thus allowing it to be recognized in another Contracting States, the State of destination. (For details, see the HCCH Permanent Bureau, Practical Handbook on the Operation of the Apostille Convention (2nd ed. 2023) pp. 25-34 hereafter the “Apostille Handbook”)

Several key principles that underpin the Apostille Convention. These include the following: First, the Convention applies mainly to “public documents” (the Apostille Handbook, p. 51, para. 102). Second, the Convention is based on the premise that the Apostille only verifies the authenticity of a public document’s origin (and not the content) by certifying the signature, the signer’s capacity, and, where applicable, the seal or stamp (see the Apostille Handbook, p. 31, para. 22-23).

The case commented here provides valuable insights concerning these two points. The first issue is whether a certificate of conversion to Islam, issued by a mosque or an Islamic center in Spain, qualifies as a “public document” under the Convention. Even if it does qualify, the second issue concerns the probative value of an apostillised document, particularly when the authenticity of the document itself is contested for forgery or fabrication.

As the ruling of the Supreme Court above indicates, the Court did not address the first question, arguably assuming the validity of the Apostille without further examination. However, a closer review of the first principle mentioned above suggests that this issue may not be as straightforward as the Court seemed to have presumed. This can be supported by the fact that the Court focused more on the allegation of forgery of the apostillised certificate, implying that the validity of the Apostille itself was not in question.

 

2. Certificate of Conversion to Islam as a “public document”

Can a certificate of conversion to Islam issued in Spain be qualified as a “public document” under the Apostille Convention? Answering this question first requires an understanding of what constitutes a “public document” under the Convention.

a) What is a public document under the Convention?

Although the Convention enumerates in a non-exhaustive list the documents deemed to be “public documents” (art.1(2)), and mainly relies on the national law of the State of origin (i.e. where the document was executed) to determine whether the document qualities as “public document” (the Apostille Handbook, p. 52, para. 105), it provides for a useful criterion to determine whether a document is a “public document”. According to the Apostille Handbook, “the term “public document” extends to all documents other than those issued by persons in their private capacity. Therefore, any document executed by an authority or person in an official capacity (i.e. acting in the capacity of an officer authorized to execute the document) is a public document” (p. 51-52, para. 103). Documents that do not meet this criterion are generally not considered “public documents” under the Convention (the Apostille Handbook, p. 64, para. 182).

There are, however, exceptions. A document may still be apostollised if it is notarized or officially certified (art. 1(2)(c) and (d). See the Apostille Handbook, p. 54, paras. 116-122. On the example of educational documents, including diplomas, see p. 59, paras. 150-153). In addition, “[t]he law of the State of origin may consider religious documents, as well as documents executed by official religious courts, to be of public nature and therefore a public document under the Convention” (See the Apostille Handbook, p. 65, para. 185).

b) The Public nature of Certificates of Conversion to Islam

In certain countries, certificates of conversion to Islam are clearly recognized as public documents. For example, in many Muslim-majority jurisdictions such certificates are issued by public organs or institutions affiliated with the state, such as the Ministry of Religious Affairs, or the Ministry of Justice (e.g., in the UAE) or by authorized persons (such as the Adouls in Morocco). In such cases, the conversion certificate possesses the requisite “public” nature under the Apostille Convention.

However, in many non-Muslim countries, no specific public administrative authority is responsible for overseeing religious conversions or issuing certificates to that effect. Instead, individuals wishing to convert to Islam typically approach a local mosque or Islamic center. There, the person publicly professes their declaration of faith in front of an imam and witnesses. While a certificate is often provided for various purposes (e.g., marriage or pilgrimage), these documents lack the “public” character necessary for apostillasation under the Apostille Convention.

In the case commented here, the summary of facts indicates that the Spanish widow had embraced Islam before an imam at a mosque. The Supreme Court’s ruling, however, refers to her conversion in front of the head of an Islamic Center in Spain registered with the Spanish Ministry of Justice (although it is possible that the mosque was part of the Islamic center, and the head of the Islamic center serves also served as the imam). In any event, it doubtful that either the Imam or the head of the Islamic center acted “in the capacity of an officer” to issue the conversion-to-Islam certificate. Indeed, even when registered as non-profit or religious organization or association, mosques and Islamic centers generally do not possess the authority to issue “public documents” within the meaning of the Apostille Convention. This applies to other types of certificates these centers or mosques may issue such as marriage or divorce certificates. Such certificates are generally not recognized by the states unless duly registered with civil authorities. Where registration is not possible, these documents primarily serve religious purposes within the community.

There is also no indication in the Supreme Court’s decision that the certificate in question falls under the exceptions outlined above (see IV(2)(a)). Therefore, it remains unclear on which grounds the certificate of conversion was apostillised, as “[t]he Convention does not authorize the issuance of an Apostille for a document that is not a public document under the law of the State of origin [Spain in casu], even if the document is a public document in the State of destination [Morocco in casu]” (the Apostille Handbook, p. 52, para. 107).

 

3. Contestation for forgery of an apostillised document

It is worth recalling here that the case reported here concerned the invalidation of a certificate of inheritance that excluded a Spanish widow, who claimed to have converted to Islam, from her deceased husband’s estate. To support her claim, the widow submitted, among other documents, an apostillised certificate of conversion to Islam issued in Spain. Before the Supreme Court, the appellants argued that the certificate of conversion had no legal value because it was forged and lacked sufficient elements to establish its authenticity. The Supreme Court admitted the appeal on the grounds that the authenticity of the certificate had to be examine pursuant to the relevant provisions of the 1997 Moroccan-Spanish Convention on Legal Assistance in Civil, Commercial and Administrative Matters.

The position of the court should be approved on this particular point. the Apostille Handbook makes it clear that the Apostille has no effect on the admissibility or probative value of a foreign public document (the Apostille Handbook, p. 32, para. 25). Indeed, since the Apostille does not relate to or certify the content of the underlying public document, issues concerning the authenticity of the foreign public document and the extent to which it may be used to establish the existence of a fact are left to be dealt with under the law of the State of destination. In this case, the applicable provisions are found the Moroccan code of civil procedure and the Hispano-Moroccan bilateral convention on judicial assistance, as indicated in the Court’s decision.

This post has been written by Reef Alfahad, a PhD candidate at King’s College London. On 17 October 2024, a conference on ‘The Anglo-French Approaches to Arbitration’ will take place at King’s College London, UK. This conference will discuss how the French and English approaches differ when dealing with corruption in arbitration and anti-suit injunctions, […]

Par un arrêt du 5 septembre 2024, la Cour de justice de l’Union européenne se prononce, de façon insatisfaisante, sur une question préjudicielle visant à déterminer si la loi bulgare sur les obligations prévoyant que « la réparation du préjudice immatériel est déterminée par le juge en équité » est ou non une loi de police.

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By Reef Alfahad,  PhD Candidate at Kings College London

On 17 October 2024, a conference on ‘The Anglo-French Approaches in Arbitration’ will take place at King’s College London (UK). This conference will discuss how the French and English approaches differ when dealing with corruption in arbitration and antisuit injunctions, particularly in light of the recent UK Supreme Court decision in UniCredit v RusChemAlliance.

The event will bring together renowned experts in international arbitration and international commercial litigation.

Welcome remarks: Dr Manuel Penades (King’s College London)

The first panel will address corruption in arbitration and the review by national courts. The speakers will be:

• Jason Fry (KC): Global Head of International Arbitration at Clifford Chance,
• Dr. Jan Kleinheisterkamp, Arbitrator, JK ADR, and Visiting Professor at LSE,
• Karolina Latasz, Senior Associate, Squire Patton Boggs
• Chair: Reef Alfahad, PhD Candidate at KCL, organiser

The second panel will be dedicated to anti-suit injunctions concerning foreign seated arbitrations. The panellists will be:

• The leading counsels for both parties in UniCredit v RusChemAlliance, Alexander Gunning (KC) and Professor Jonathan Harris (KC)
• Raphaël Kaminsky, French law expert and Partner, Teynier Pic,
• Professor Dr. Maxi Scherer, Professor, Queen Mary School of Law and Arbitrator, ArbBoutique.
• Chair: Marie Berard, Head of UK Arbitration, Clifford Chance (London).

The conference will be held in English. The program is available here https://www.kcl.ac.uk/events/the-anglo-french-approaches-to-arbitration.

Registration is required at https://www.eventbrite.co.uk/e/the-anglo-french-approaches-to-arbitration-tickets-1024955999987?aff=oddtdtcreator

M. Maciej Szpunar est réélu premier avocat général de la Cour de justice

Élection des présidents des chambres à cinq juges de la Cour de justice

M. Thomas von Danwitz est élu vice-président de la Cour de justice de l’Union européenne

As reported earlier on this blog, the Cour de cassation ruled in a judgment of 2 October 2024 that a foreign surrogacy recognised in France produces the legal effects provided by foreign law and need not be considered as a full adoption of French law. Background In that case, a couple of French men had […]

M. Koen Lenaerts est réélu président de la Cour de justice de l’Union européenne

This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas. On 2 October 2024, the French Cour de cassation issued two decisions regarding respectively the conditions for declaring enforceable foreign judgments establishing legal parentage between a child born abroad to a surrogate mother and the intended parents and the effects […]

By Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, College of Sciences and Engineering, University of Tasmania

On 24th September 2024, Mimmie Chan J handed down the judgment of the Court of First Instance of the High Court of the Hong Kong Special Administrative Region in Bank A v Bank B [2024] HKCFI 2529. In this case, the Plaintiff (Bank A) with its base of operation in Germany was under the supervision of the German Federal Financial Supervisory Authority (BaFin). Its majority shareholder was the Defendant (Bank B) who held 99.39% shares. In turn, the Defendant was a Russian bank whose majority shareholder was the Government of the Russian Federation.

Between the predecessor of Plaintiff (as, at the time before the court in Hong Kong, the Plaintiff bank was already in voluntary liquidation) and Defendant, there existed an ISDA agreement dated 23 July 2023. Following the war between Russia and Ukraine which broke out in February 2022, Germany followed the “Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty, and independence of Ukraine” which Article 2 provides:

“1. All funds and economic resources belonging to, owned, held or controlled by any natural persons or natural or legal persons, entities or bodies associated with them as listed in Annex I shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural persons or natural or legal persons, entities or bodies associated with them listed in Annex I.”

As a result, BaFin barred Plaintiff from making payments or other transfers of assets to companies, including Defendant. Moreover, it also barred Plaintiff from accepting new deposits, granting loans, or making payments to Russian borrowers. The defendant was subsequently listed in the Annex I of the EU Regulation. On that same day, Plaintiff and Defendant entered into a Termination and Settlement Agreement (TSA) under which Plaintiff was to pay Defendant EUR 112, 634, 610. The TSA contained a choice of the English law clause and an arbitration clause for any dispute to be resolved by the Hong Kong International Arbitration Centre (HKIAC) arbitration.

After the defendant was added to Annex I, BaFin denied the defendant’s right to vote in the plaintiff’s meetings and also barred the plaintiff from taking any instructions from the defendant. Defendant tried to demand payment from Plaintiff according to the TSA but Plaintiff denied that, citing the infeasibility due to the EU Regulation.

The defendant hence commenced proceedings before the courts in Russia. Among other things, the Russian Court granted a ‘Freezing Order’ prohibiting any transfer of securities that Plaintiff had in its account with Defendant’s bank. The plaintiff’s attempt to challenge the jurisdiction of the Russian Court based on the arbitration clause contained in the TSA was unsuccessful. Hence, on 27 October 2023, the plaintiff sought an interim anti-suit junction from the court in Hong Kong.

Regardless of the interim anti-suit injunction, the defendant commenced again the proceedings in Russia where the Russian Court issued an anti-suit injunction prohibiting the plaintiff from continuing any proceedings in Hong Kong, and subsequently the defendant obtained another injunction prohibiting the plaintiff from initiating arbitration proceedings at the HKIAC.

In late 2023, the Russian Court gave judgment in favor of the defendant to seek the settlement payment under the TSA and granted the final injunction restraining the plaintiff from pursuing the HKIAC arbitration.

The plaintiff hence came to the court in Hong Kong seeking a final injunction to restrain the defendant from pursuing or continuing any proceedings in Russia. The defendant resisted that by raising the arguments based on Article 19 and Article 13 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990 Promulgated by Order No. 26 of the President of the People’s Republic of China on 4 April 1990 Effective as of 1 July 1997) (hereinafter the “Basic Law”) (which is effectively a mini-constitution for Hong Kong) SAR):

“Article 13

*The Central People’s Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region.

The Ministry of Foreign Affairs of the People’s Republic of China shall establish an office in Hong Kong to deal with foreign affairs.

The Central People’s Government authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law.

Article 19

The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.

The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.

*The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. The certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People’s Government.”

 

Mimmie Chan J summarised the rule concerning the anti-suit injunction which has been established through authorities in Hong Kong at [34]:

“Foreign proceedings initiatied in breach of an arbitration agreement will ultimately be restrained by the grant of an injunction, unless there are strong reasons shown to the contrary … For contractual anti-suit injunctions, the courts have emphasized that there is no need to prove that the arbitral tribunal is the most convenient forum … Nor is there need for the Court to feel diffidence in granting the injunction, or to exercise the jurisdiction sparingly and with great caution,  for fear of giving an appearance of undue interference with proceedings of a foreign court. The restraint is directed against the party which has promised not to bring the proceedings otherwise than in accordance with the arbitration agreement, and effect should ordinarily be given to the agreement in the absence of strong reasons for departing from it…”

So far as the argument based on the act of state in Article 19 of the Basic Law is concerned, the judge found there was no proof that the defendant was a state entity despite its majority shareholder being the Government of the Russian Federation. Neither the defendant’s argument that Germany was somehow involved in the plaintiff convinced the judge because, as she found in [50], Bafin was a regulatory authority. Its act was not that of the state. Since there is no doubt about neither party in the case, there is no basis to obtain the certificate from the Chief Executive according to the third paragraph of Article 19 of the Basic Law (citing the Court of Final Appeal in Democratic Republic of Congo v FG Hemisphere Associates LLC (No 1) (2011) 14 HKCFAR 95).

 

The judge then came to conclude in her ratio decidendi at [59] and [60]:

“In my judgment, what is pertinent is that the question for determination by the Court in this case is simply whether there is a valid and binding arbitration agreement between the Plaintiff and the Defendant, which covers the scope of the dispute between the two parties and the claims made by them in these proceedings and in the two sets of Russian proceedings, and whether to grant the injunctions on the Plaintiff’s application. It is trite, that the arbitration agreement contained in the Arbitration Clause is severable from and separate to the underlying TSA between the parties. Any illegality of the TSA, and any alleged impossbility to perform the TSA, cannot affect the validity and operation of the arbitration agreement. Nor does the impossibility of performance of any award obtained in the HK Arbitration affect the validity and enforceability of either the arbitration agreement, the HK Arbitration itself, or the award obtained …

… It is simply not necessary for the Court to decide whether the issue and application of the EU Sanction confers a good answer to the Defendant’s claim for payment under the TSA, whether the Plaintiff can be excused from payment, and the effect of the EU Sanction on the TSA are all matters which go to the merits of the claim in the HK Arbitration, and it should not be forgotten that the Court does not consider the merits of the underlying dispute when it decides the Plaintiff’s claim for the injunctions – which are made solely on the basis of a valid arbitration agreement. This is also a reason to reject the Defendant’s assertion that by granting the injunctions to the Plaintiff, the Court is implementing or facilitating the EU Sanction. Any injunction which the Court grants in this case is to facilitate the arbitration agreement between the parties, and nothing else”.

 

The judge also denied that the EU Regulation is in any way contradictory to the public policy of Hong Kong or that of the People’s Republic of China since it does not affect the rights or property of any Chinese entity or Hong Kong entity.

Overall, this is a fair case that the judge chose to uphold the effect of the arbitration agreement. It was somewhat curious that the parties agreed to the English law in the TSA agreement, knowing that, under the English law, the EU Regulation is likely to be effective. It is not known for what reason the Court in Russia found for the defendant regarding its entitlement to the payment under the TSA. For sure, a hard burden falls on arbitrators at the HKIAC (as per the TSA, the tribunal should consist of 3 arbitrators). There has been much discussion on the impact of any unilateral sanction upon arbitrators in recent years. Arbitrators will continue facing this challenge so long as the conflict remains, being that between Russia and Ukraine or that in the Middle East.

 

 

 

Renouvellement partiel de la Cour de justice et entrée en fonctions de nouveaux membres du Tribunal

The Hague Judgments Convention of 2 July 2019 entered into force for Uruguay on 1 October 2024. Uruguay had ratified it on 1 September 2023. As a result, the Judgments Convention is currently in force for 28 States and one Regional Organization of Economic Integration, namely the European Union. Specifically, the States bound by the […]

The latest issue of the Journal of Private International Law (Volume 20, Issue 2) features eight articles. Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law, 249-279 The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage […]

On 26 and 27 June 2025, Brigitta Lurger, Martina Melcher, Florian Heindler, and Simon Laimer organize the forth edition of the Austrian Private International Law Workshop. This year, it is hosted by the University of Graz, Austria. The organizers aim to facilitate an open and lively discussion on questions of private international law. Presentations will be delivered in German.

Confirmed speakers are Barbara Egglmeier-Schmolke, Burkhard Hess, Martin Lutschounig, Sören Segger-Piening and Bea Verschraegen.

Details can be found on the flyer and here. Participation is free of charge. Please register via ipr-workshop@uni-graz.at.

Just two days after losing to LOSC Lille in the Champions League, Real Madrid suffered another defeat against a French opponent. Among the 44 (!) judgments published this Friday by the CJEU – a flurry of decisions reminiscent of the madness that is the current Champions League format –, the Court decided a true ‘clásico’ of European private international law in Case C-633/22 Real Madrid Club de Fútbol.

The decision has long been awaited: eigth months after the Opinion by AG Szpunar (discussed here) has been published and almost 18 years since the facts of the case. It concerns an article published by leading French newspaper Le Monde in 2006, which claimed that both FC Barcelona and Real Madrid had retained the services of Eufemiano Fuentes, a sports doctor heavily implicated in numerous doping scandals. Real Madrid and a member of their medical team sought damages for the harm to their reputation and were eventually awarded payment of € 390,000 to the former and of € 30,000 to the latter by a Spanish court in 2014. Their attempts to enforce those awards in France were thwarted, though, with the Paris Court of Appeal holding that they were violating French public policy by deterring the media’s freedom of expression as guaranteed by Art 11. of the Charter of Fundamental Rights of the European Union. The French Cour de cassation finally referred the case to the CJEU in 2022, raising questions as to whether such a deterrent effect on freedom of expression would be a valid ground of public policy to refuse enforcement based on (what is now) Art. 45(1)(a) Brussels Ia and, if so, how it could be established.

In its decision (not yet available in English), the Court largely follows the Opinion of its Advocate General. After reiterating the importance of striking the right balance between swift recognition and enforcement of judgments between Member States and the defendant’s right of defence (paras. 29–31), the Court emphasises that – except in exceptional circumstances – the courts of the Member State of enforcement must not review the substance of the foreign decision (paras. 36–39) and may even have to presume that the fundamental rights of the defendant, including those derived from EU law, have been respected (paras. 42–43). Yet, a violation of the freedom of expression enshrined in Art. 11 of the Charter (and Art. 10 of the European Convention of Human Rights) may constitute such exceptional circumstances (paras. 45–53).

Focusing on the present case, the Court then goes on to emphasise the role of the press as a ‘public watchdog’ (using the English term even in the French original), not least with regard to reporting on doping in professional sports, and the risks of a deterring effect, relying extensively on jurisprudence by the European Court of Human Rights (paras. 54–56). According to the Court, it follows that in this context,

‘toute décision accordant des dommages-intérêts pour une atteinte causée à la réputation doit présenter un rapport raisonnable de proportionnalité entre la somme allouée et l’atteinte en cause.’ (para. 57)

In order to establish the existence of such a reasonable proportion, the courts of the Member State of enforcement may indeed consider, in particular, the amount awarded: if it exceeds the material and immaterial damage, or if it is significant in comparison to the ressources of the defendant, a deterrent effect may be found (paras. 62–64). What is more, the courts may also take into the account ‘la gravité de la faute [des personnes condamnées]’ (para. 68).

While it remains for the French courts to apply these criteria to the Spanish decision – and to potentially refuse enforcement to the extent (!) that it has a deterrent effect on freedom of expression (i.e. not entirely; see para. 72) on this basis –, the Court of Justice certainly appears open towards the possibility of such a deterring effect being found to exist in the present case.

Commission / Malte (Citoyenneté par investissement)
Citoyenneté européenne
Avocat général Collins : la Commission n’a pas prouvé que les règles de l’Union en matière de citoyenneté (article 20 TFUE) requièrent l’existence d’un « véritable lien » ou d’un « véritable lien antérieur » entre un État membre et un particulier pour que cet État puisse accorder à ce dernier sa nationalité

Bundesamt für Fremdenwesen und Asyl e.a. (Femmes afghanes)
Espace de liberté, sécurité et justice
Les mesures discriminatoires adoptées à l’égard des femmes par le régime des talibans constituent des actes de persécution

Schrems (Communication de données au grand public)
Principes du droit communautaire
Un réseau social en ligne tel que Facebook ne peut utiliser l’ensemble des données à caractère personnel obtenues à des fins de publicité ciblée, sans limitation dans le temps et sans distinction en fonction de leur nature