Droit international général

Jie (Jeanne) Huang, University of Sydney Law School, Australia

 

Changzhou Sinotype Technology Co, Ltd. v. Rockefeller Technology Investments (Asia) VII is a recent case decided by the Supreme Court of California on April 2, 2020. The certiorari to the Supreme Court of the US was denied on 5 October 2020. It is a controversial case concerning the interpretation of the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (the “Hague Service Convention”) for service of process in China.

1. Facts:

Changzhou SinoType Technology Co. (SinoType) is based in China. Rockefeller Technology Investments (Asia) VII (Rockefeller) is an American investment firm. In February 2008, they signed a memorandum of understanding (MOU) which provided that:

“6. The parties shall provide notice in the English language to each other at the addresses set forth in the Agreement via Federal Express or similar courier, with copies via facsimile or email, and shall be deemed received 3 business days after deposit with the courier.

7. The Parties hereby submit to the jurisdiction of the Federal and State courts in California and consent to service of process in accord with the notice provisions above.

8. In the event of any disputes arising between the Parties to this Agreement, either Party may submit the dispute to the Judicial Arbitration & Mediation Service in Los Angeles for exclusive and final resolution pursuant to according to [sic] its streamlined procedures before a single arbitrator who shall have ten years judicial service at the appellate level, pursuant to California law, and who shall issue a written, reasoned award. The Parties shall share equally the cost of the arbitration. Disputes shall include failure of the Parties to come to Agreement as required by this Agreement in a timely fashion.”

Due to disputes between the parties, in February 2012, Rockefeller brought an arbitration against SinoType. SinoType was defaulted in the arbitration proceeding. According to the arbitrator, SinoType was served by email and Federal Express to the Chinese address listed for it in the MOU. In November 2013, the arbitrator found favorably for Rockefeller.

Instead of enforcing the award in China according to the New York Convention,[1] Rockefeller petitioned to confirm the award in State courts in California. Cal. Civ. Proc. Code § 1290.4(a) provides that a petition to confirm an arbitral award “shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.” Therefore, Rockefeller transmitted the summons and its petition to SinoType again through FedEx and email according to paragraph 7 of the MOU. SinoType did not appear and the award was confirmed in October 2014. SinoType then appeared specially and applied to set aside the judgment. It argued that the service of the Californian court proceeding did not comply with the Hague Service Convention; therefore, it had not been duly served and the judgment was void.

2. Decision

The California Supreme Court rejected SinoType’s argument.

The Court discerned three principles for the application of the Hague Service Convention. First, the Convention applies only to “service of process in the technical sense” involving “a formal delivery of documents”. The Court distinguished “service” and “notice” by referring to the Practical Handbook on the Operation of the Service Convention, published by the Permanent Bureau of the Hague Conference on Private International Law (‘Handbook’). The Court cited that

“the Convention cannot—and does not—determine which documents need to be served. It is a matter for the lex fori to decide if a document needs to be served and which document needs to be served. Thus, if the law of the forum states that a notice is to be somehow directed to one or several addressee(s), without requiring service, the Convention does not have to be applied.”[2]

Second, the law of the sending forum (i.e. the law of California) should be applied to determine whether “there is occasion to transmit a judicial or extrajudicial document for service abroad.”

Third, if formal service of process is required under the law of the sending forum, the Hague Convention must be complied for international transmission of service documents.

The court held that the parties have waived the formal service of process, so the Hague Service Convention was not applicable in this case.[3]

3. Comments

The Changzhou Sinotype Technology Co, Ltd has a number of interesting aspects and has been commented such as here, here and here.

First, the Hague Service Convention is widely considered as ‘non-mandatory’ but ‘exclusive’.[4]  Addressing the non-mandatory nature of the Convention, the Handbook states that “the Convention can not—and does not—determine which documents need to be served. It is a matter for the lex fori to decide if a document needs to be served and which document needs to be served.”[5] However, this statement does not necessarily mean, when judicial documents are indeed transmitted from a member state to another to charge a defendant with notice of a pending lawsuit, a member state can opt out of the Convention by unilaterally excluding the transmission from the concept of service. Volkswagen Aktiengesellschaft v Schlunk decided by the Supreme Court of the US and Segers and Rufa BV v. Mabanaft GmbH decided by the Supreme Court of the Netherlands (Hoge Raad) are the two most important cases on the non-mandatory nature of the Convention. Both cases concentrate on which law should be applied to whether a document needed to be transmitted abroad for service.[6] However, Rockefeller is different because it is about which law should be applied to determine the concept of service when the transmission of judicial documents takes place in the soil of another member state. The Handbook provides that the basic criterion for the Convention to apply is “transmission abroad” and “place of service is determining factor”.[7] When judicial documents are physically transmitted in the soil of a member state, allowing another member state to unilaterally determine the concept of service in order to exclude the application of the Convention will inappropriately expand the non-mandatory character of the Convention. This will inevitably narrow the scope of the application of the Convention and damage the principle of reciprocity as the foundation of the Convention. The Hague Convention should be applied to Rockefeller because the summons and petitions were transmitted across border for service in China.

Second, as part of its accession to the Hague Convention, China expressly stated that it does not agree to service by mail.  Indeed, the official PRC declarations and reservations to the Hague Convention make it clear that, with the limited exception of voluntary service on a foreign national living in China by his country’s own embassy or consulate, the only acceptable method of service on China is through the Chinese Central Authority. Therefore, although China has recognized monetary judgments issued in the US according to the principle of reciprocity, the judgment of Changzhou Sinotype Technology Co, Ltd probably cannot be recognized and enforced in China.

The California Supreme Court decision has important implications. For Chinese parties who have assets outside of China, they should be more careful in drafting their contracts because Changzhou Sinotype Technology Co, Ltd shows that a US court may consider their agreement on service by post is a waiver of China’s reservation under the Hague Service Convention. For US parties, if Chinese defendants only have assets in China for enforcement, Changzhou Sinotype Technology Co, Ltd is not a good case to follow because the judgment probably cannot be enforced in China.

 

 

[1] China is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Jun. 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (“New York Convention”).

[2] Practical Handbook on the Operation of the Service Convention (4th ed. 2016) par. 54, p. 23, fn. Omitted.

[3] The Court emphasized that their conclusions should be limited to Section 1290.4, subdivision (a): “Our conclusions as to California law are narrow. When parties agree to California arbitration, they consent to submit to the personal jurisdiction of California courts to enforce the agreement and any judgment under section 1293. When the agreement also specifies the manner in which the parties “shall be served,” consistent with section 1290.4, subdivision (a), that agreement supplants statutory service requirements and constitutes a waiver of formal service in favor of the agreed-upon method of notification. If an arbitration agreement fails to specify a method of service, the statutory service requirements of section 1290.4, subdivisions (b) or (c) would apply, and those statutory requirements would constitute formal service of process. We express no view with respect to service of process in other contexts.”

[4] Martin Davies et al., Nygh’s Conflict of Laws in Australia 36 (10th ed. 2020).

[5] Paragraph 54 of the Handbook.

[6] Ibid., paragraphs 31-45, and 47.

[7] Ibid., paragraph 16.

Forum non conveniens featured not just in Municipio de Mariana at the High Court yesterday but also in Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB).

Twenty Essex have good summary of the background and decision. Context is of course the blockade on Qatar, led by Saudi Arabia and the UAE. Qatar Airways Group (QAG) sue on the basis of tort, triggered by a rather chilling clip aired by Al Arabiya which amounted to a veiled threat against the airline.

Saini J at 27 notes what Turner J also noted in Municipio de Mariana and what Briggs LJ looked at in horror in Vedanta, namely the spiralling volume and consequential costs in bringing and defending a jurisdictional challenge. (Although at least for Vedanta and Municipio de Mariana the issues discussed are matters of principle, which may eventually settle once SC (and indeed CJEU) authority is clear).

The judgment recalls some principles of international aviation law under the Chicago Convention (with noted and utterly justifiable reference a 77 ff to an article on the opiniojuris blog by prof Heller) which is important here because (at 61) it is the starting point of QAG’s case that anyone who had taken steps to inform themselves of the legal position would have known that contrary to what (it argues) is the message of the Video, there was no real risk of any internationally legitimate interception, still less legitimate shooting at or down, of a QAG scheduled service in flight along one of the defined air corridors. At 88 Saini J concludes on that issue that there is an arguable case as to meaning and falsity.

On good arguable case, reference is to Kaefer v AMS, Goldman Sachs v Novo Banco, and Brownlie.

At 164 ff the judge discusses the issue of pleading foreign law at the jurisdictional threshold of making a good arguable case. Here, Saini J holds on the basis of the assumption that malicious falsehood is not covered by Rome II, which is the higher threshold for the purposes of establishing jurisdiction. He does suggest that it is likely that in fact malicious falsehood is covered by Rome II and not by the exception for infringement of personality rights (at 166: ‘Malicious falsehood is not a claim for defamation, and what is sought to be protected is not Qatar Airways’ reputation or privacy rights, but its economic interests’).

As for applicable law for conspiracy, that is clearly within the scope of Rome II and poses the difficulty of determining locus damni in a case of purely economic loss. Here, at 169 Saini J suggests preliminarily that parties agreed “damage” for the purposes of Article 4(1) of Rome II to have been suffered in the place where the third parties (that is, potential passengers) failed to enter into contracts with QAG (which they otherwise would have done) as a result of the video. Location of purely economic damage under Rome II as indeed it is under Brussel Ia is however not settled and I doubt it is as simple as locating it in the place of putative (passenger) contract formation.

Of long-term impact is the judge’s finding that for jurisdictional threshold purposes, he is content for claimant to proceed with a worldwide claim for tort on the basis of any foreign law that might be applicable having the same content as English law. 

Of note in the forum non analysis is that not just the obvious alternative of the UAE was not good forum, but neither would the DIFC be. At 374:’the UAE is not an appropriate forum is what I would broadly call “access to justice” considerations in what has clearly become a “hostile environment” for Qataris in the UAE.’ And at 379, re the DIFC: ‘The DIFC courts are a sort of “litigation island” within the UAE, created to attract legal business by their perceived superior neutrality, and higher quality, compared to the local courts. But as such, they have no superiority compared to the English courts, also a neutral forum. The English courts have the other connections to the case, which the DIFC courts do not.’

Geert.

 

 

409 paras of jurisdictional challenge based on serious issue to be tried and forum non conveniens.
Dismissed (with summary judgment re one of the defendants).
Discussion of international aviation law (with reference to article on @opiniojuris). https://t.co/Qz2GpqgLoF

— Geert Van Calster (@GAVClaw) November 9, 2020

I am instructed for claimants in the case hence my post here is a succinct report, not a review and it must not be read as anything else.

Turner J yesterday struck out (not just: stayed) the case against the companies jointly operating the facilities that led to the 2015 Brazilian dam break and consequential human and environmental loss in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). I reported on the case before here.

Eyre J’s earlier Order had identified the threefold jurisdictional challenge: 1. Forum non conveniens for non-EU defendants; 2. Article 34 Brussels IA for the EU-based defendants; 3. Abuse of process, case management for both.

In his judgment Turner J makes abuse of process the core of the case, hinging his subsequent obiter analysis of forum non and of Article 34 on his views viz abuse. At the centre of his abuse analysis is his interpretation of AB v John Wyeth & Brother (No.4), also known as the benzodiazepine litigation, with the points he takes from that judgment (even after the subsequent CPR rules wre issued) summarized at 76.

At 80 ff is a discussion (see e.g. my earlier review of Donaldson DJ in Zavarco) on the use of case-management powers, including abuse, against EU-domiciled defendants post CJEU Owusu (the ‘back-door analogy per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

At 99 ff Turner J pays a lot of attention to the impact of accepting jurisdiction on the working of the courts in England, discusses some of the practicalities including language issues, and decides at 141 in an extract which has already caught the attention of others, that ‘In particular, the claimants’ tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions.’

At 146 ff follow the obiter considerations of the remaining grounds, Article 34 Recast, forum non conveniens and case management stay. On Article 34 viz BHP Plc, the issue of ‘relatedness’ is discussed with reference of course to Euroeco and the tension between that case and Privatbank, as I flag ia here, holding at 199 in favour of Privatbank as the leading authority (hence focus on desirability of hearing cases together rather than on practical possibility). On relatedness, Turner J does not follow the approach of either Zavarco or Jalla, both of course first instance decisions.

At 206 Turner J takes the instructions of recital 24 Brussels Ia’s ‘all circumstances of the case’ to mean including circumstances which would ordinarily be part of a forum non consideration, despite Owusu, and at 231 Jalla is distinguished (at least practically; Jalla is not authority for the judge here) and i.a. at 221 Turner J lists his reasons for allowing an Article 34 stay (again: these are obiter views). As already noted, these echo his findings on abuse of process.

The forum non conveniens analysis viz BHP Ltd at 235 ff, applying Spiliada, delivers inter alia on an inherent implication of Lord Briggs’ suggestions in Vedanta: that a commitment of defendants voluntarily to submit to the foreign alternative jurisdiction, hands them the key to unlock forum non. At 241: ‘In this case, both defendants have offered to submit themselves to the jurisdiction of Brazil. Thus the force of any suggestion that there may be a risk of irreconcilable judgements against each defendant is attenuated.’

Conclusions, at 265:

(i) I strike out the claims against both defendants as an abuse of the process of the court;

(ii) If my finding of abuse were correct but my decision to strike out were wrong, then I would stay the claims leaving open the possibility of the claimants, or some of them, seeking to lift the stay in future but without pre-determining the timing of any such application or the circumstances in which such an application would be liable to succeed;

(iii) If my finding of abuse were wrong, then I would, in any event, stay the claim against BHP Plc by the application of Article 34 of the Recast Regulation;

(iv) If my finding of abuse were wrong, then I would, in any event, stay the claims against BHP Ltd on the grounds of forum non conveniens regardless of whether the BHP reliance on Article 34 of the Recast Regulation had been successful or not;

(v) If my findings on the abuse of process point were wrong, then a free-standing decision to impose a stay on case management grounds would probably be unsustainable.

Appeal is of course being considered.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

3rd ed. forthcoming February 2021.

Jurisdiction denied in core #bizhumanrights case on the basis of abuse of process, Article 34 Brussels Ia and /or forum non conveniens.
For background to the case see https://t.co/CzkMFH98yH https://t.co/h9AjvJ6JIR

— Geert Van Calster (@GAVClaw) November 9, 2020

The third issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Ilaria Viarengo, Professor at the University of Milan, Planning Cross-Border Successions: The Professio Juris in the Succession Regulation (in English)

• This article addresses the role of party autonomy in Regulation (EU) No 650/2012 in the context of estate planning, Against this backdrop, the interface between the law governing the succession and property aspects of marriage or of a registered partnership, as provided in the Regulations (EU) No 2016/1103 and 2016/1104, is also analysed. This article also proceeds to examine the optio juris functioning and, in particular, it focuses on, respectively, the object of the choice, the determination of the nationality, whose law may be chosen, and the formal and substantial validity of the agreement. Finally, the protection of close family members in connection with the freedom of choice is taken into account, as the choice of law could be in contrast with the legitimate expectations of family members on the applicability of certain provisions on forced heirship and lead to a law that actually undermines their position.

The following comment is also featured:

Edoardo Benvenuti, PhD Candidate at the University of Milan, La tutela collettiva risarcitoria dei consumatori nelle controversie transfrontaliere: diritto interno e prospettive di armonizzazione (‘Cross-Border Consumer Collective Redress: Domestic Law and Prospects for Harmonisation’; in Italian)

• This article examines some developments in the area of consumer collective redress in the EU, especially in the light of the recent proposal for a Directive on representative actions. In Italy, Law No 31 of 12 April 2019 introduces a new type of class action which triggers some reflections and, in particular, doubts about its congruence with the Directive. The Author examines whether the principles set forth in the proposed Directive are consistent with the protection of consumer collective interests and whether, in matters with cross-border implications, Regulation (EU) No 1215/2012 is an efficient instrument. Even though some CJEU decisions seem to promote a flexible interpretation of this latter Regulation, its provisions do not encompass collective redress; therefore, a reform is desirable.

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Chris Brummer (ed.), Cryptoassets: Legal, Regulatory and Monetary Perspectives, Oxford University Press, New York, 2019, pp. XIII-441.

 

In a recent e-mail exchange, Paul Beaumont and Jayne Holliday (both working now at the University of Stirling) drew my attention to Article 14 of the Hague Convention on the civil aspects of international child abduction. The provision is certainly a rarity in the field of ascertaining and applying foreign law, and of recognition. It reads as follows

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The logic of Article 14 appears to be twofold. It is first and  foremost a practical rule: it should lead to speedy decisions on the return of a child, which are fundamental to the working of the Convention.

Its second rationale seems to be dogmatic. According to the Convention’s explanatory report by Elisa Pérez-Vera, at para 119, Article 14 does not address cases of application of foreign law in the narrow sense; it rather “takes it into account” to check whether the claim of wrongful removal is correct:

Since the wrongful nature of a child’s removal is made to depend, in terms of the Convention, on its having occurred as the result of a breach of the actual exercise of custody rights conferred by the law of the child’s habitual residence, it is clear that the authorities of the requested State will have to take this law into consideration when deciding whether the child should be returned. In this sense, the provision in article 13 of the preliminary draft Convention that the authorities ‘shall have regard to’ the law of the child’s habitual residence, could be regarded as superfluous. However, such a provision would on the one hand underline the fact that there is no question of applying that law, but merely of using it as a means of evaluating the conduct of the parties (…)” (emphasis added)

In a similar vein, judicial or administrative decisions on custody rights, the breach of which entails the wrongfulness of the removal (or of the retention, as the case may be), are not really recognized, but work as a piece of proof in the proceedings at the requested State:

… while on the other hand, in so far as it applied to decisions which could underlie the custody rights that had been breached, it would make the Convention appear to be a sort of lex specialis, according to which those decisions would receive effect indirectly in the requested State, an effect which would not be made conditional on the obtaining of an exequatur or any other method of recognition of foreign judgments.

There is no way to dispute the usefulness of Article 14 in practice. I have more doubts regarding the correctness of the conceptual distinction between “applying” a foreign law and “taking [it] into account” (which is usually understood as taking into account “as a matter of act”). The operations are possibly the same in nature; the difference between them, just a question of degree. Furthermore, I believe that in the context of Article 14 foreign law is actually applied. The conduct of the parties cannot be evaluated without looking into what that law prescribes; the authority in the requested State draws the corresponding consequences as to who is the holder of the rights of custody in the case at hand. The assessment of the parties’ conduct comes afterwards. In the same vein, I believe that a decision on custody rights is recognized, in the proper sense of the term, as a decision, and not as a piece of documentary evidence.

What makes the difference is therefore not “what is done” with the foreign law/foreign decision in the context of child abduction. It is rather the limited goal of the application of that law, and of the recognition of the foreign decision, which allows to proceed without resorting to the specific procedures for the proof of foreign law (or for the recognition of foreign decisions), which would normally apply.

Be it as it may, what really matters is what the alternative method – that of taking notice directly of the law of, and of judicial or administrative decisions, of the State of habitual residence of the child before removal or retention- means vis-à-vis quality. That foreign law is not, strictly speaking, applied, does not entail a lesser need for certainty about its contents. The authority in the requested State does indeed not determine the rights of custody. However, her understanding of the foreign legal system is not innocuous: it has immediate effects on the child in terms of return/not return, and therefore, of residence; these, in turn, affect the question of international jurisdiction for a claim on the merits. Furthermore, the view of the requested authority on the custody issue sets a precedent (in a non-technical sense, for it is not binding) for future discussions about parental responsibility.

The assumption that Article 14 supports lower standards of proof of the foreign law (and more lenient conditions of recognition) is only this: an assumption. To date, INCADAT lists 39 national decisions on the provision. In fact, in some of them Article 14 is simply mentioned . The remaining decisions have been rendered in different jurisdictions (Austria, Canada, France, Germany, Israel, US, Switzerland): the sample is hence not good enough for a study aimed at finding out the differences with the usual methods to ascertain foreign law, nor to make any assessment about quality.

Still, it might not be a useless effort. For, if Article 14 proves to work, it may be worth trying it elsewhere (the suggestion, with a question mark, is actually from Professor Beaumont).

Thank you Angus Macinnis for flagging RCD Holdings Ltd & Anor v LT Game International (Australia) Ltd [2020] QSC 318 in which  Davis J upheld choice of court in favour of the courts at Macau and held against a stay. The judgment is a good one for comparative purposes.

Claimants, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD), in their contract with the defendant, LT Game International (Australia) Ltd (LT) (a BVI domiciled company), agreed that any dispute between them would be litigated in Macau. However, when a dispute did arise they commenced proceedings in Queensland. LT entered a conditional appearance and now applies to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract.

Article 10 of the contract carries the title Governing law but actually is a choice of court clause – an oddity one sees more often than one might expect in B2B contracts: ‘Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

Comparative insight includes the issue of whether A10 us a non-exclusive (an agreement not to object when proceedings are brought in the court designated) or exclusive (an agreement only to bring proceedings in the court designated) choice of court. Davis J settled for exclusive which would also seem to have been the position of both parties, despite some ambiguity at the start of proceedings.

Lex contractus is disputed, and at 27 Davis J settles for Macanese law, based upon factual construct of the contractual intention of the parties. Clearly that choice of court was made for Macau was an important factor – as it is in Rome I for consideration of so-called ‘implied’ choice of law in the event of choice of court made.

A stay on the basis of Covid19 impracticability (ia because of alleged difficulties for witness testimony) is dismissed, ia (at 34) because it is uncertain whether current travel restrictions will still be in place when the case in Macau might be heard. Davis j does suggest that a renewed application for a stay must not be ruled out in light of Covid19 developments, however will be seen against abuse of process: in other words claimants had best not do so lightly.

Geert.

RCD Holdings & Aor v LT Game [2020] QSC 318

Davis J noting that claimants can re-apply, should #Covid19 unduly frustrate proceedings in Macau https://t.co/00DH1VQf9j

— Geert Van Calster (@GAVClaw) November 3, 2020

Today (9 November 2020) ASADIP and UNCITRAL are organising a preparatory conference to the first edition of UNCITRAL Day in Latin America and the Caribbean region (UNCITRAL LAC DAY 2020 – la primera edición del Día de UNCITRAL en América Latina y el Caribe). For more information see here. Free registration here. For other events on UNCITRAL Day click here.

David Hodson is the author of Family Law Leaves the EU – A Summary Guide for Practitioners, published by Jordan Publishing. The book aims to provide family law practitioners with an accessible guide to the law and practice which will apply on the UK’s final departure from the EU on 31 December 2020. The publisher’s blurb reads as follows.

The government has indicated that the UK will not be party to any further EU laws, instead relying on existing international laws (eg Hague Conventions) to which we will be a party in our own right. There will also be new provisions in national law, where previously EU law existed, and some court procedures will change. This invaluable title will provide an overview of the legal position and the practical issues which will arise in all areas of family law, including the preparatory steps which lawyers should take in readiness for departure, so as to advise clients effectively.

More information available here.

The programme of the XLIII Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here. As previously announced, the XLIII Seminar will take place on 19-20 November 2020 for the first time online.

Among the topics to be discussed are the 1996 HCCH Child Protection Convention, the 1980 HCCH Child Abduction Convention, the 2019 HCCH Judgments Convention, the 2005 HCCH Choice of Court Convention, the HCCH Guide to Good Practice on the Use of Video-link, Human rights and PIL, the brand new T-MEC / US-Mexico-Canada Agreement (USMCA), digital justice, COVID-19, and alternative dispute resolution.

The meeting will be held via Zoom.

Access details:

https://us02web.zoom.us/j/5554563931?pwd=WE9uemJpeWpXQUo1elRPVjRMV0tvdz09
ID: 555 456 3931
Password:  00000

It will also be transmitted live via AMEDIP’s Facebook page.

Participation is free of charge. The language of the seminar will be Spanish.

For more information, see AMEDIP’s website.

 

The European Parliament released today a study on “40 years of the Hague Convention on child abduction – legal and societal changes in the rights of a child” and another one on “The Child Perspective in the Context of the 1980 Hague Convention”.

They are attached to this post.

40-years-of-the-hague-convention-on-child-abduction-legal-and-societal-changes-in-the-rights-of-a-childDownload the-child-perspective-in-the-context-of-the-1980-hague-conventionDownload

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (3 Novemberr 2020) a decision (RG 19/17529) on the law applicable to insurance with questions involving lois d’application immediate and ordre public.

Summary: “The ICCP-CA, which was seized on referral after a proceeding before the French Cour de cassation, held that the dispute concerning the conditions of the guarantee applicable under an insurance contract concluded between an insurance company and a company both governed by Polish law should be subject to Polish law, pursuant to the general rules of private international law on contractual obligations applicable in this case (§§ 51 to 60). The court dismissed the claim to set aside this law in favor of French law, on the basis of both French mandatory provisions (§ 44 to 48) and French international public policy (§ 61 to 68)”.

The decision is attached to this post.

3-novembre-2020-ccip-ca-rg-1917529Download

Banco San Juan Internacional Inc v Petroleos De Venezuela SA [2020] EWHC 2937 (Comm) is a lengthy judgment which I report here for its discussion of Rome I Article 9’s provisions on overriding mandatory laws /lois de police. The discussion is similar to the consideration of A9 in Lamesa Investments, to which reference is made.

The Claims comprise two substantial claims in debt by claimant BSJI, a bank incorporated in Puerto Rico, against defendant PDVSA, the Venezuelan state-owned oil and gas company.  PDVSA arue inter alia that payment obligations fall to be performed in the US and contends that US sanctions ought to be regarded as part of the order public (sic) of US law. It is said these are a central component of US foreign policy and its political and economic aims as regards Venezuela. It is argued that the terms of the Executive Orders themselves make clear that they are reactions to perceived political and human rights injustices in Venezuela and describe this as “an unusual and extraordinary threat to the national security and foreign policy of the United States“.

However Article 9(3) Rome I comes with a sizeable amount of discretion: ‘Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.’

At 118 Cockerill J decides not to use the discretion for the same reason she had earlier dismissed application of the Ralli Bros principle. That rule was recently discussed in Colt v SGG. (As summarised here by Mrs Justice Cockerill at 77) it ‘provides that an obligation under an English law contract is invalid and unenforceable, or suspended in the case of a payment obligation, insofar as the contract requires performance in a place where it is unlawful under the law of that required place of performance.’ And at 79: ‘The doctrine therefore offers a narrow gateway: the performance of the contract must necessarily involve the performance of an act illegal at the place of performance. Subject to the Foster v Driscoll principle [also discussed in Colt and of no relevance here, GAVC], it is no use if the contract could be performed some other way which is legal; and it is no use if the illegal act has to be performed somewhere else’ and at 84 ‘it is only illegality at the place of performance which is apt to provide an excuse under the Ralli Bros doctrine; it also makes clear that the party relying on the doctrine will in general not be excused if he could have done something to bring about valid performance and failed to do so.’ 

The lex contractus is English law which already has the Ralli Bros rule. At 120 Cockerill J suggest that if the court in question has no equivalent rule of law, Article 9(3) will have a significant impact. But not if the lex contractus is English law.

I have to give this some further thought and I am not sure it would make much difference in practice but could it not be said that A9(3) Rome I exhaustively regulates the use of overriding mandatory law to frustrate a contract? This would mean that where Rome I applies, Ralli Bros and even Foster v Driscoll must not apply and must not be entertained. That is a question of some relevance, even after Brexit albeit with a complication: for to the extent (see discussions elsewhere) the Rome Convention re-applies to the UK post Brexit, that Convention’s Article 7 rule on mandatory rules ordinarly applies – albeit the UK have entered a reservation viz A7(1) on which see also here. That article gives  a lot of freedom for the forum to apply mandatory laws of many more States than the lex loci solutionis [Article 7(1) Rome Convention: ‘ When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application’].

At the very least an exhaustive role for A9 Rome I (and again in future for UK courts, potentially A7 Rome Convention; but see the note on reservation) would require from the judge a different engagement of the issues than under Ralli Bros. Again, whether indeed, and per Cockerill J’s suggestion here (she applies both Ralli Bros and A9)  in the case of England that would make much difference in outcome is uncertain. Update 6 November 10:20 AM: see prof Dickinson’s impromptu contribution to the issue here.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

3rd ed. forthcoming February 2021.

Alfonso Luis Calvo Caravaca (University Carlos III, Madrid) and Javier Carrascosa González (University of Murcia) are the author of a treatise on private international law, in Spanish, titled Tratado de Derecho Internacional Privado.

The three-volume work, published by Tirant lo Blanch, aims to provide an updated, systematic and comprehensive account of the discipline.

Private international law is presented through the analysis of legal rules, case law and scholarly writings, with more than 7.500 references to judicial decisions. The book provides an in-depth insight into European and Spanish private international law in force both for practitioners and students. It illustrates private international law in an accessible way by showing its rules ‘in motion’, i.e., as they actually work.

On 26 October 2020, Saint Kitts and Nevis acceded to the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which will enter into force for Saint Kitts and Nevis on 1 February 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=765

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the final AHRC funded Research Network workshop in partnership with the Journal of Private International Law.

• Online Workshop via Microsoft teams
• The Link to the event will be provided shortly.
• The workshop is over two days, Thursday 26th November and Friday 27th November

Please note that you are welcome to attend as much or as little of the workshop as you are able.

Programme for Thursday 26 November 2020

Chair – Professor Paul Beaumont (University of Stirling and co-editor of the Journal of Private International Law)

10.00-10.30 The Opportunities of Brexit for the development of Private International Law in the Commonwealth

Speaker – Professor Reid Mortensen (University of South Queensland)

10.30-10.45 Questions and discussion

10.45-11.15 Some Reflections to be drawn from the Pilot Study and Future Research Project/s

Speaker – Dr Mihail Danov (University of Exeter)

11.15-11.30 Questions and Discussion

11.30-11.45 Coffee Break

Chair – Dr Jayne Holliday (University of Stirling)

11.45-12.15 Connecting Factors in Private International Law – a global perspective

Speakers – Professor Susanne Goessl (University of Kiel) and Dr Ruth Lamont (University of Manchester)

12.15-12.30 Questions and Discussion

12.30-14.00 Lunch break

Chair – Dr Mihail Danov

14.00-14.45 Pluses and minuses of the UK being a party to the Lugano Convention after Brexit

Speaker – Professor Fausto Pocar (University of Milan)

14.45-15.00 Questions and discussion

Programme for Friday 27 November 2020

Chair – Professor Jonathan Harris QC (King’s College London, co-editor of the Journal of Private International Law and Serle Court)

10.30-10.50 Keynote speech by Lord Mance former UK Supreme Court Judge

10.50-11.15 Questions and Discussion and Comments by the Chair

11.15-11.45 Resolving Conflicts of Jurisdiction after Brexit at a global level

Speaker – Dr Ardavan Arzandeh (University of Bristol and soon to be National University of Singapore)

11.45-12.00 Questions and Discussion

Chair – Dr Jayne Holliday

12.00-12.30 The Hague Adults Convention 2000 and the role of the UK and the EU in the Hague Conference after Brexit

Speaker – Professor Pietro Franzina (Catholic University, Milan)

12.30-12.45 Questions and Discussion

Lunch Break

Chair – Dr Mihail Danov

15.00-15.30 Private International Law of Arbitration – a global perspective and the impact of Brexit on arbitration in the UK

Speaker – Professor Giuditta Cordero-Moss (University of Oslo)

15.30-15.45 Questions and Discussion

15.45-16.15 The AHRC Research Network on Private International Law: Some reflections on the way ahead for global private international law.

Speaker – Professor Paul Beaumont

16.15-16.30 Questions and Discussion

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the third of four public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspective.

• Online Workshop via Microsoft teams
• The Link to the event will be provided shortly.
• The workshop is over two days, Thursday 19th November and Friday 20th November

Please note that you are welcome to attend as much or as little of the workshop as you are able.

Programme for 19 November 2020

14:00 – 14:10 – The Workshop and its Context

Professor Paul Beaumont (University of Stirling), AHRC Network on UK Private International Law post Brexit: Project Objectives and Workshop Aims

14:10 – 16:00 – Cross-Border Litigation: Specific Issues in some specific sectors

Chair: Alex Layton QC (King’s College London and Twenty Essex)

Dr Jenny Papettas (University of Birmingham), Cross-Border Motor Claims After Brexit

Professor Yvonne Baatz (Centre for Commercial Law Studies, Queen Mary University of London), Brexit and Cross-Border Maritime Disputes

Professor Rob Merkin QC (University of Exeter), Cross-Border Dispute Resolution – Insurance Sector: Brexit Implications

Tom Sprange QC (King & Spalding), High-Value Disputes: A US Law Firm’s Perspective on Brexit

Dr Mihail Danov (University of Exeter), Cross-Border Litigation: New Data, Initial Brexit Implications in England and Wales and Long-Term Policy Choices

Questions and discussion

 

Programme for 20 November 2020

10:00 – 12:00 Global and Commonwealth Perspectives on Private International Law in the UK after Brexit (not restricted to commercial law)

Chair: Professor Paul Beaumont

Professor Mary Keyes (Griffith University, Australia), How Brexit may affect Commonwealth PIL: A View from Australia

Dr Christophe Bernasconi (Secretary General of the Hague Conference), A Global Perspective from the HCCH – the global international institution on private international law

Iain Mackie (Macfarlanes), A London Law Firm Perspective on international and commonwealth litigation after Brexit

Questions and discussion

Break

13:30 – 15:00 – EU/EEA and Intra-UK Commercial PIL: Brexit Challenges and Opportunities

Chair: Professor Eva Lein (University of Lausanne, Switzerland)

Alex Layton QC, Interim Remedies

Professor Barry Rodger (University of Strathclyde), Re-designing (or not) the UK landscape in relation to PIL: An Intra-UK perspective on Brexit

Lindsey Clegg (Freeths), Re-designing (or not) the UK landscape in relation to PIL: A Regional Law Firm Perspective on Brexit

Questions and discussion

20-minute break

15:20 – 16:50 – Brexit and Cross-Border Competition Litigation

Chair: Professor Barry Rodger

Omar Shah (Morgan, Lewis & Bockius LLP), Brexit and Cross-Border Collective Redress

Nick Frey (Freshfields Bruckhaus Deringer LLP), Brexit – A Defendant’s Perspective on Competition Litigation

Dr Mihail Danov, Cross-Border Competition Litigation: Brexit Opportunities?

Questions and discussion

16.50 – 17.15 Prof Paul Beaumont and Dr Mihail Danov, Concluding Remarks and Next Steps

Online public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspectives

Professor Paul Beaumont (University of Stirling), Dr Mihail Danov (University of Exeter) and Dr Jayne Holliday (University of Stirling) are delighted to be able to host the following AHRC funded Research Network workshop.

How to join the online workshop:

• The event will be held using Microsoft Teams.
• The link for the event is – http://stir.ac.uk/44h
• Or click here on Friday 6th November to join the online workshop.

Any queries please contact Dr Jayne Holliday at j.holliday@stir.ac.uk

The Development of Private International Law in the UK post Brexit

AHRC Research Network Workshop II – Family Law – Programme

Friday 6 November 2020

10.00-10.15 – Welcome and introduction by Dr Jayne Holliday (University of Stirling)

10.15-10.45 – Hague Intercountry Adoption Convention – how it should be interpreted and applied by Laura Martínez-Mora (Secretary, Hague Conference on Private International Law)

10.45-11.00 – Discussion

11.00-11.15 – Break

11.15-11.45 – Private International Law of Family Agreements after Brexit by Alexandre Boiché (French advocate, member of the Experts’ Group on Family Agreements at the Hague Conference on Private International Law)

11.45-12.15 – International Surrogacy and International Parentage – hopes for a global solution by Professor Giacomo Biagioni (University of Cagliari)

12.15-12.30 – Discussion

12.30-13.30 – Break for lunch

13.30-14.00 – Private International Law of Parental Responsibility (Custody and Access) after Brexit by Professor Thalia Kruger (University of Antwerp)

14.00-14.30 – Private International Law of Divorce after Brexit by Dr Máire Ní Shúilleabháin (University College Dublin)

14.30-14.45 Discussion

14.45-15.00 Break

15.00-16.00 – Keynote speech by Lord Justice Moylan ‘International Family Justice – Where are we Going?’

16.00-16.30 – Concluding remarks incorporating some comments on maintenance after by Brexit by Professor Paul Beaumont (University of Stirling)

Carsten Gerner-Beuerle (University College London & European Corporate Governance Institute – ECGI), Federico M. Mucciarelli (Università degli studi di Modena e Reggio Emilia – UNIMORE), Edmund Schuster (London School of Economics) and Mathias Siems (European University Institute – EUI, Durham University and European Corporate Governance Institute – ECGI) have posted Making the Case for a Rome V Regulation on the Law Applicable to Companies on SSRN.

The abstract reads:

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this paper is that private international company law in the EU should be harmonised. The paper discusses the main challenges that a future regulation to this effect – called here ‘Rome V Regulation on the Law Applicable to Companies’ – would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this paper to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonisation based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects of future international harmonisation.

A revised version of the paper will be published in the Yearbook of European Law.

“The collective defence of consumers’ rights has come a step closer. Following the agreement reached with the European Parliament in June 2020, the Council today adopted its position at first reading on a draft directive on representative actions for the protection of the collective interests of consumers within the EU.

The directive requires member states to put in place a system of representative actions for the protection of consumers’ collective interests against infringements of Union law. It covers actions for both injunctions and redress measures.

It empowers qualified entities designated as such by member states to seek injunctions and/or redress, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader who has allegedly infringed one of the EU legal acts set out in the annex to the directive. These legal acts cover areas such as financial services, travel and tourism, energy, health, telecommunications and data protection.

The directive distinguishes between qualified entities entitled to bring actions in the member state where they have been designated (domestic representative actions) and those entitled to bring actions in any other member state (cross-border representative actions). For domestic actions a qualified entity will have to fulfil the criteria set out in the law of its member state of designation, whereas for cross-border actions it will have to fulfil the harmonised criteria set out in the directive.

As a safeguard against abusive litigation, the directive provides clear rules on the allocation of judicial costs in a representative action for redress based on the ‘loser pays’ principle. Furthermore, with a view to avoiding conflicts of interest, it imposes on qualified entities a number of transparency requirements, in particular as regards their funding by third parties.

The directive will apply to representative actions brought on or after the date of its application”.

The text of the directive as of 21 October 2020 is attached to this post.

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/collective-redress-for-consumers-council-adopts-position-at-first-reading/

collective-redress-21-october-2020Download

“The Council today adopted two recast regulations, one on the taking of evidence and a second on the service of documents, to modernise cross-border exchanges between authorities through digitalisation. After reaching a political agreement with the European Parliament in June 2020, the text will now be submitted to the Parliament for its final adoption.

[…] Changes in both regulations include the mandatory use of a decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states.

Regarding the service of documents, under the new rules documents can be served electronically and directly to an addressee with a known address in another member state, when their express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert located in another member state”.

The text of the adopted Evidence and Service Regulations are attached to this post.

evidence-regulation-22-october-2020Download service-regulation-22-october-2020Download

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/digital-europe-council-adopts-new-rules-to-modernise-judicial-cooperation-in-taking-of-evidence-and-service-of-documents/?utm_source=dsms-auto&utm_medium=email&utm_campaign=Digital+Europe%3a+Council+adopts+new+rules+to+modernise+judicial+cooperation+in+taking+of+evidence+and+service+of+documents