Droit international général

As announced in a previous post, the tenth Congress of Private International Law of the Carlos III University of Madrid will take place on 16 and 17 May 2024. It will be devoted to the recognition and enforcement of decisions in the area of family law and other procedural issues. The speakers include Esperanza Castellanos […]

On 7 and 8 November, the European Legal Studies Institute (ELSI) at the University of Osnabrück, Germany, is hosting a conference on “Enforcement of Rights in the Digital Space”.

The organizers have kindly shared the following Call for Papers with us:

The European Legal Studies Institute (ELSI) is pleased to announce a Call for Papers for a conference at Osnabrück University on November 7th and 8th, 2024.

We invite submissions on the topic of »Enforcement of Rights in the Digital Space« and in particular on the interplay between the current EU acts on the digital space and national law. The deadline for submissions is May 15th, 2024.

Legal Acts regulating the digital space in the European Union, such as the GDPR, the Data Act and the Digital Services Act, establish manifold new rights and obligations, such as a duty to inform about data use and storage, rights of access to data or requests for interoperability. Yet, with regard to many of these rights and obligations it remains unclear whether and how private actors can enforce them. Often, it is debatable whether their enforcement is left to the member states and whether administrative means of enforcement are intended to complement or exclude private law remedies. The substantial overlap in the scope of these legal acts, which often apply simultaneously in one and the same situation, aggravates the problem that the different legal acts lack a coherent and comprehensive system for their enforcement.

The conference seeks to address the commonalities, gaps and inconsistencies within the present system of enforcement of rights in the digital space, and to explore the different approaches academics throughout Europe take on these issues.

Speakers are invited to either give a short presentation on their current work (15 minutes) or present a paper (30 minutes). Each will be followed by a discussion. In case the speakers choose to publish the paper subsequently, we would kindly ask them to indicate that the paper has been presented at the conference. We welcome submissions both from established scholars and from PhD students, postdocs and junior faculty.

All speakers are invited to a conference dinner which will take place on November 7th, 2024. Further, the European Legal Studies Institute will cover reasonable travel expenses.

Electronic submissions with an abstract in English of no more than 300 words can be submitted to [elsi@uos.de]. Please remove all references to the author(s) in the paper and include in the text of the email a cover note listing your name and the title of your paper. Any questions about the submission procedure should be directed to Mary-Rose McGuire [mmcguire@uos.de]. We will notify applicants as soon as practical after the deadline whether their papers have been selected.

In a judgment of 20 February 2024, the Rotterdam District Court awarded a provisional measure in relation to the transfer of property rights regarding a property situated in Spain on condition that proceedings on the merits would be initiated by the claimant before the competent Spanish court. Facts A person identified in the case as […]

We have kindly been informed that a limited number of places remains available at the conference on Informed Consent to Dispute Resolution Agreements on 20 and 21 June in Bremen, which we advertised a couple of weeks ago.

The full schedule can be found on this flyer, which has meanwhile been released.

On 16 April 2024, Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’) has been published in the Official Journal of the European Union. Pursuant to Article 21, […]

A first view article was published online on 12 April 2024 in International and Comparative Law Quarterly.

Raphael Ren, “The Dichotomy between Jurisdiction and Admissibility in International Arbitration”

The dichotomy between jurisdiction and admissibility developed in public international law has drawn much attention from arbitrators and judges in recent years. Inspired by Paulsson’s ‘tribunal versus claim’ lodestar, attempts have been made to transpose the distinction from public international law to investment treaty arbitration, yielding a mixed reception from tribunals. Remarkably, a second leap of transposition has found firmer footing in commercial arbitration, culminating in the prevailing view of the common law courts in England, Singapore and Hong Kong that arbitral decisions on admissibility are non-reviewable. However, this double transposition from international law to commercial arbitration is misguided. First, admissibility is a concept peculiar to international law and not embodied in domestic arbitral statutes. Second, its importation into commercial arbitration risks undermining the fundamental notion of jurisdiction grounded upon the consent of parties. Third, the duality of ‘night and day’ postulated by Paulsson to distinguish between reviewable and non-reviewable arbitral rulings is best reserved to represent the basic dichotomy between jurisdiction and merits.

Marie Linton (Uppsala University) has kindly prepared this presentation of her recent book titled ‘Erkännande och verkställighet av utländska domar i förmögenhetsrätt‘ (Recognition and Enforcement of Foreign Judgments in Commercial Matters), published by Norstedts Juridik 2023. What is the significance of a foreign judgment in Sweden? Is the judgment effective? Can assets in Sweden be seized […]

Béligh Elbalti (Osaka University):
‘Conflict of Laws’ in the Islamic Legal Tradition –
Between the Principles of Personality and Territoriality of the Law

 

Research Group on the Law of Islamic Countries at the Max Planck Institute for Comparative and International Private Law Afternoon Talks on Islamic Law

• DATE: Apr 25, 2024
• TIME: 04:00 PM (Local Time Germany)
• LOCATION: online

more info here.

This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas. In a judgment of 7 February 2024, the French Cour de cassation ruled that a compensatory allowance claim (“prestation compensatoire”) brought before French courts after the divorce was granted by a Belgian judgment is inadmissible. Background The spouses had […]

Registrations are still open for Module n°4, which is taking place on April 18th, 2024. 

The speakers are the following:

• Dr Nicolas Nord, Secretary General, CIEC, “The ICCS Activities and Good Practices in the field of International Child Protection”
• Ms Joëlle Schickel-Küng, Deputy Head of Division, Co-Head of Unit, Swiss OFJ, “Cooperation in the area of international child abduction under the 1980 Hague Convention”
• Mr Jean Ayoub, Secretary General, International Social Service, “ISS – Bridging support to vulnerable children on the move”

Price per module registration fee: 200 CHF. More information is available here.

Many will remember the brilliant Austrian-American conflicts scholar Albert A. Ehrenzweig. He is associated with the ‘lex fori theory’, according to which courts faced with cross-border situations should primarily follow their own national law. He is also, together with Eric Jayme, the author of a multi-volume treatise on private international law. This short description does […]

The author is Dr. Faidon Varesis, Attorney at Law

Teaching Fellow, National and Kapodistrian University of Athens

PhD (University of Cambridge); MJur (University of Oxford); LLM, LLB (University of Athens).

 

In an era where the resolution of disputes is increasingly moving away from traditional court systems towards alternative methods, the comprehensive collective work in Greek with Professor Charalampos (Haris) P. Pamboukis as editor emerges as both a timely and seminal contribution to the field of arbitration, both nationally within Greece and on an international scale. This book review seeks to delve into the multifaceted contributions of the book, examining its scope, its pioneering contributors, its evolution within Greek law, and its broader implications for dispute resolution globally.

The book begins by exploring the flourishing landscape of arbitration across various domains such as commercial, investment, construction, maritime, and energy disputes, alongside other alternative dispute resolution (ADR) methods. The interest in these mechanisms reflects a societal shift towards less adversarial, more cosmopolitan forms of dispute resolution, aimed at alleviating the burdens on state judiciary systems characterized by procedural rigidity and often excessive delays. The prologue set the stage by discussing the significant legislative and jurisprudential developments in domestic and international arbitration within Greece, highlighting the transformative impact of laws passed from 1999 through to the latest reforms in 2023. Such legislative milestones not only signify Greece’s evolving arbitration framework but also illustrate the dynamic interplay between law, scholarly research, and practical application in shaping effective dispute resolution practices. Furthermore, the book weaves through the theoretical underpinnings and the practical aspects of arbitration agreements, the composition of arbitral tribunals, and the procedural norms governing arbitration proceedings, offering a holistic view of the arbitration landscape.

Central to the book’s discourse is the collaborative effort of esteemed scholars, academics, and practitioners who contribute their insights across various themes. This collective approach not only enriches the book’s content with a diversity of perspectives but also underscores the collaborative spirit within the arbitration community. The inclusion of introductory developments on increasingly significant areas such as investment arbitration and mediation, alongside a critical overview of international arbitration consent and the arbitral process, reflects a comprehensive and forward-looking examination of the field.

The book does not shy away from discussing the inherent challenges within arbitration and the diverse methodological approaches adopted by different contributors. However, these aspects are presented as enriching the scientific pluralism and intellectual rigor of the work rather than detracting from its cohesion.

In addition to its substantive chapters, the book is augmented with appendices that include key legislative and regulatory texts relevant to arbitration and mediation. This practical inclusion underlines the book’s aim to serve as a useful tool for both practitioners and scholars.

In conclusion, this collective work stands as a testament to the evolving and vibrant field of arbitration within Greece and its broader implications on the international stage. It encapsulates the intellectual legacy, the legislative advancements, and the practical insights of a diverse group of contributors, offering a comprehensive resource for understanding and navigating the complexities of arbitration. As such, it represents an invaluable contribution to the legal scholarship and practice of arbitration, both within Greece and beyond, fostering a deeper appreciation for alternative dispute resolution mechanisms in the pursuit of justice and societal harmony.

Jacco Bomhoff, Associate Professor at LSE Law School, has published an important article on US conflicts revolution and history of private international law. The title of the article is ‘Rationalising Mid-Century Choice of Law: Legal Technique and its Limits in the “Dark Science” of Conflicts’ and it has been published by the Modern Law Review. […]

Marcel Zernikow (University of Pau and Pays de l’Adour) has kindly prepared this presentation of his recent book titled Les règles de conflit de lois confrontées au marché intérieur. Étude en droit international privé européen du travail (Conflict of Law Rules Confronted with the Internal Market. A Study of the European Private International Law of […]

Written by Shubh Jaiswal, student, Jindal Global Law School, Sonipat (India) and Professor Saloni Khanderia, JGLS. 

In the landmark case of TransAsia Private Capital vs Gaurav Dhawan, the Delhi High Court clarified that Indian Courts are not automatically required to determine and apply the governing law of a dispute unless the involved parties introduce expert evidence to that effect. This clarification came during the court’s examination of an execution petition stemming from a judgment by the High Court of Justice Business and Property Courts of England and Wales Commercial Court. The Division Bench of the Delhi High Court invoked the precedent set by the United Kingdom Supreme Court in Brownlie v. FS Cairo, shedding light on a contentious issue: the governing law of a dispute when parties do not sufficiently prove the applicability of foreign law.

The Delhi High Court has established that in the absence of evidence proving the applicability of a foreign law identified as the ‘proper law of the contract’, Indian law will be applied as the default jurisdiction. This decision empowers Indian courts to apply Indian law by ‘default’ in adjudicating international civil and commercial disputes, even in instances where an explicit governing law has been selected by the parties, unless there is a clear insistence on applying the law of a specified country. This approach aligns with the adversarial system common to most common law jurisdictions, where courts are not expected to determine the applicable law proactively. Instead, the legal representatives must argue and prove the content of foreign law.

This ruling has significant implications for the handling of foreign-related civil and commercial matters in India, highlighting a critical issue: the lack of private international law expertise among legal practitioners. Without adequate knowledge of the choice of law rules, there’s a risk that international disputes could always lead to the default application of Indian law, exacerbated by the absence of codified private international law norms in India. This situation underscores the need for specialized training in private international law to navigate the complexities of international litigation effectively.

Facts in brief

As such, the dispute in Transasia concerned an execution petition filed under Section 44A of the Indian Civil Procedure Code, 1908, for the enforcement of a foreign judgment passed by the High Court of Justice Business and Property Courts of England and Wales Commercial Court. The execution petitioner had brought a suit against the judgment debtor before the aforementioned court for default under two personal guarantees with respect to two revolving facility loan agreements. While these guarantee deeds contained choice of law clauses and required the disputes to be governed by the ‘Laws of the Dubai International Finance Centre’ and ‘Singapore Law’ respectively, the English Court had applied English law to the dispute and decided the dispute in favour of the execution petitioner. Accordingly, the judgment debtor opposed the execution of the petition before the Delhi HC for the application of incorrect law by the Court in England.

It is in this regard that the Delhi HC invoked the ‘default rule’ and negated the contention of the judgment debtor. The Bench relied on the decision rendered by the Supreme Court of the United Kingdom in Brownlie v. FS Cairo, which postulated that “if a party does not rely on a particular rule of law even though it would be entitled to do so, it is not generally for the court to apply the rule of its own motion.”

The HC confirmed that foreign law is conceived as a question of fact in India. Thus, it was for each party to choose whether to plead a case that a foreign system of law was applicable to the claim, but neither party was obliged to do so, and if neither party did, the court would apply its own law to the issues in dispute. To that effect, the HC also relied on Aluminium Industrie Vaassen BV, wherein the English Court had applied English law to a sales contract even when a provision expressly stipulated the application of Dutch law—only because neither party pleaded Dutch law.

Thus, in essence, the HC observed that courts would only be mandated to apply the chosen law if either party had pleaded its application and the case was ‘well-founded’. In the present dispute, the judgment debtor had failed to either plead or establish that English law would not be applicable before the Court in England and had merely challenged jurisdiction, and thus, the Delhi HC held that the judgment could not be challenged at the execution stage.

Choosing the Proper Law

The mechanism employed to ascertain the applicable law under Indian private international law depends on whether the parties have opted to resolve their dispute before a court or an arbitral tribunal. In arbitration matters, the identification of the applicable law similarly depends on the express and implied choice of the parties. Similarly, in matters of litigation, courts rely on the common law doctrine of the ‘proper law of the contract’ to discern the applicable law while adjudicating such disputes on such obligations. Accordingly, the proper law depends on the express and implied choice of the parties. When it comes to the determination of the applicable law through the express choice of the parties, Indian law, despite being uncodified, is coherent and conforms to the practices of several major legal systems, such as the UK, the EU’s 27 Member States, and its BRICS partners, Russia and China – insofar as it similarly empowers the parties to choose the law of any country with which they desire their disputes to be settled. Thus, it is always advised that parties keen on being governed by the law of a particular country must ensure to include a clause to this effect in their agreement if they intend to adjudicate any disputes that might arise by litigation because it is unlikely for the court to regard any other factor, such as previous contractual relationships between them, to identify their implied choice.

Questioning the Assumed: Manoeuvring through the Intricate Terrain of Private International Law and Party Autonomy in the Indian Judicial System

By reiterating the ‘default rule’ in India and presenting Indian courts with another opportunity to apply Indian law, this judgment has demonstrated the general tendency on the part of the courts across India to invariably invoke Indian law – albeit in an implicit manner – without any (actual) examination as to the country with which the contract has its closest and most real connection. Further, the lack of expertise by the members of the Bar in private international law-related matters and choice of law rules implies that most, if not all, foreign-related civil and commercial matters would be governed by Indian law in its capacity as the lex fori. Therefore, legal representatives should actively advocate for disputes to be resolved according to the law specified in their dispute resolution clause rather than assuming that the court will automatically apply the law of the designated country in adjudicating the dispute.

Foreign parties may not want Indian law to apply to their commercial contracts, especially when they have an express provision against the same. Apart from being unclear and uncertain, the present state of India’s practice and policy debilitates justice and fails to meet the commercial expectations of the parties by compelling litigants to be governed by Indian law regardless of the circumstance and the nature of the dispute—merely because they failed to plead the application of their chosen law.

This would inevitably lead to foreign parties opting out of the jurisdiction of the Indian courts by concluding choice of court agreements in favour of other forums so as to avoid the application of the Republic’s ambiguous approach towards the law that would govern their commercial contracts. Consequently, Indian courts may rarely find themselves chosen as the preferred forum through a choice of court agreement for the adjudication of such disputes when they have no connection to the transaction. In circumstances where parties are unable to opt out of the jurisdiction of Indian courts – perhaps because of the lack of agreement to this effect, the inconsistencies would hamper international trade and commerce in India, with parties from other jurisdictions wanting to avoid concluding contracts with Indian businessmen and traders so as to avert plausible disputes being adjudicated before Indian courts (and consequently being governed by Indian law).

Therefore, Indian courts should certainly reconsider the application of the ‘default rule’, and limit the application of the lex fori in order to respect party autonomy.

Parallel proceedings in international commercial litigation between the courts of different countries have long been discussed and explored, for which the Brussels I Regulation in the EU provides a good model for solution although it is still a problem at the global level and an obstacle for the Hague Jurisdiction Project.

 

However, it seems that so far no enough attention has been paid to the problem of parallel proceedings between international commercial litigation and arbitration. Theoretically, parties’ consent to arbitration will exclude the jurisdiction of states’ courts by virtue of the rules set out in Article 2 of the New York Convention altogether. But the Convention fails to successfully eradicate parallel proceedings between arbitral tribunals and state courts, owing to its inherent defects. When a conflict arises between international commercial arbitration and litigation proceedings, a rational balance must be struck between the judiciary and the arbitral tribunal with a reasonable division of competence between the two bodies. Different from parallel proceedings between two courts of different countries where usually both have jurisdiction and the question is only who should decide first, the jurisdiction of a national court and that of an arbitral tribunal excludes each other; similar to them, the problems with the former will also happen to the latter. Shall one always give “priority” to the arbitral tribunal to decide i.e. the issue of validity of the arbitration agreement for the purpose of respecting the doctrine of competence/competence? Can a simple lis pendens rule like that under the Brussels I Regulation work i.e. a national court or arbitral tribunal whoever is seized earlier shall decide when the issue of the validity of arbitration agreement is raised as a preliminary question in the national court? This presentation will try to explore an ideal model for the solution to this problem.

The recording can be found here.

This post was prepared by Nadia Rusinova (The Hague University of Applied Sciences). In a world where marriages often transcend borders and cultural lines, the challenges of international family law become ever more evident. Two recent Dutch court decisions provide compelling insights into how the courts navigate complex cases involving divorce and marital property regimes […]

This Friday (12 April) at 3 pm (NZST), Jack Wass and Maria Hook will be giving a seminar at the University of Otago (New Zealand) on their project “Hague Conventions on International Civil Procedure – Pathway to Adoption”. This project, which is funded by the Borrin Foundation, explores a pathway for New Zealand to adopt four key treaties on international civil procedure developed by the Hague Conference on Private International Law – the Service Convention 1965, the Evidence Convention 1970, the Choice of Court Convention 2005, and the Judgments Convention 2019. The purpose of the project is to try and dislodge the inertia within the executive that has resulted in consideration of these Conventions stalling, by producing a briefing paper and draft legislation for the implementation of the treaties. The seminar will focus on the proposed pathway for adoption of the Conventions and discuss its potential effectiveness in encouraging New Zealand’s participation in international treaties.

There is a Zoom link available for anyone who would like to attend the seminar but is unable to do so in person. Please contact me if you would like to attend.

Many thanks to the members of the European Association of Private International Law who have accessed “MyEAPIL”, the area reserved to EAPIL members within the redesigned website of the Association. We are truly happy to see that several members find this innovation useful! If you’re a member, and haven’t done so yet, please retrieve the […]

There are big news for RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht). Firstly, they have introduced a new layout, the merits of which are a matter of personal taste. Secondly, they have a new co-editor, Anne Röthel, who has recently joined the Max Planck Institute in Hamburg as a director. However, the most significant […]