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The readers of the blog are aware of the proposal for a Directive on the protection of persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as strategic lawsuits against public participation (SLAPPs).

After the political agreement reached at Council level and the European Parliament’s negotiating position, the negotiators of the Parliament and of the Council reached on 30 November 2023 a provisional political agreement on the text to be adopted. The agreement is expected to be formally approved by the Council and the European Parliament at a later stage.

The text of the deal, made accessible here, features various innovations, including the following.

Minimum Requirements

The text resulting from the political agreement now makes clear that the Directive lays down minimum rules, thus enabling the Member States to adopt or maintain provisions that are more favourable to persons engaging in public participation, including national provisions that establish more effective procedural safeguards. The implementation of the Directive should not serve to justify any regression in relation to the level of protection that already exists in each Member State.

Public Participation

Public participation is more broadly defined.

It should mean any statement, activity or preparatory, supporting or assisting action directly linked thereto, by a natural or legal person expressed or carried out in the exercise of fundamental rights.

Future public interest is included, referring to the fact that a matter might not yet be of public interest, but could become so, once the public becomes aware of it, for example by means of a publication.

Such activities should directly concern a specific act of public participation or be based on a contractual link between the actual target of SLAPP and the person providing the preparatory, supporting or assisting activity. Bringing claims not against a journalist or a human rights defender but against the internet platform on which they publish their work or against the company that prints a text or a shop that sells the text can be an effective way of silencing public participation, as without such services opinions cannot be published and thus cannot influence public debate.

Matter of Public Interest

The notion of a matter of public interest is clarified in more detail.

It should include matters relevant to the enjoyment of fundamental rights.

Activities of a natural or legal person who is a public figure should also be considered as matters of public interest since the public may legitimately take an interest in them.

In addition, matters under consideration by a legislative, executive or judicial body or any other official proceedings can be examples of matters of public interest.

Finally, the Directive text provides under Recital 19b for many cases where a matter of public interest is at stake.

Abusive Court Proceedings

The description of when court proceedings can be considered abusive is reworked and better described.

They typically involve litigation tactics deployed by the claimant and used in bad faith including but not limited to the choice of jurisdiction, relying on one or more fully or partially unfounded claims, making excessive claims, the use of delaying strategies or discontinuing cases at a later stage of the proceedings, initiating multiple proceedings on similar matters, incurring disproportionate costs for the defendant in the proceedings. The past conduct of the claimant and, in particular, any history of legal intimidation should also be considered when determining whether the court proceedings are abusive in nature. Those litigation tactics, which are often combined with various forms of intimidation, harassment or threats before or during the proceedings, are used by the claimant for purposes other than gaining access to justice or genuinely exercising a right and aim to achieve a chilling effect on public participation in the matter at stake.

Claims made in abusive court proceedings can be either fully or partially unfounded. This means that a claim does not necessarily have to be completely unfounded for the proceedings to be considered abusive. For example, even a minor violation of personality rights that could give rise to a modest claim for compensation under the applicable law can still be abusive, if a manifestly excessive amount or remedy is claimed. On the other hand, if the claimant in court proceedings pursues claims that are founded, such proceedings should not be regarded as abusive for the purposes of the Directive.

Scope

Few express indications have been added.

The Directive shall apply to matters of a civil or commercial nature with cross-border implications entertained in civil proceedings, including interim and precautionary measures and counteractions, entertained in civil proceedings, whatever the nature of the court or tribunal.

Then, it shall not apply to criminal matters or arbitration and shall be without prejudice to criminal procedural law.

Matters with Cross-border Implications

The cross-border implications element has been revised.

According to the text, a matter is considered to have cross-border implications unless both parties are domiciled in the same Member State as the court seised and all other elements relevant to the situation are located only in that Member State. Domicile shall be determined in accordance with the Brussels I bis Regulation.

Common Rules on Procedural Safeguards

Article 5a, devoted to the accelerated treatment of applications for safeguards, has been added.

Member States shall ensure that applications for security and early dismissal of manifestly unfounded claims are treated in an accelerated manner in accordance with national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

Member States shall ensure that applications for remedies against abusive court proceedings may also be treated in an accelerated manner, where possible, in accordance with national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

Early Dismissal of Manifestly Unfounded Claims

In relation to the early dismissal, Member States shall ensure that courts and tribunals may dismiss, after appropriate examination, claims against public participation as manifestly unfounded at the earliest possible stage, in accordance with national law. In addition, Member States shall ensure that an application for early dismissal is treated in an accelerated manner in accordance with national law, taking into account the circumstances of the case and the right to an effective remedy and the right to a fair trial.

The burden of proof and substantiation of claims, under Article 12, have been specified. The burden of proving that the claim is well founded rests on the claimant who brought the action. Member States shall ensure that where a defendant has applied for early dismissal, it shall be for the claimant to substantiate the claim in order to enable the court to assess whether it is not manifestly unfounded.

Finally, Member States shall ensure that a decision granting early dismissal is subject to an appeal.

Remedies Against Abusive Court Proceedings

The award of costs, under Article 14, is clarified. Member States shall ensure that a claimant who has brought abusive court proceedings against public participation can be ordered to bear all types of costs of the proceedings, available under national law including the full costs of legal representation incurred by the defendant, unless such costs are excessive. Where national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States shall ensure that such costs are fully covered, unless they are excessive, by other means available under national law.

Article 15, specifically devoted to compensation of damages, has been deleted. It provided a natural or legal person who has suffered harm as a result of a SLAPP case to be capable of claim and to obtain full compensation for that harm. The text resulting from the political agreement loses this (express) provision.

Article 16, dedicated to penalties, has been amended including other equally effective appropriate measures. Member States shall ensure that courts or tribunals seised of SLAPPs cases may impose effective, proportionate and dissuasive penalties or other equally effective appropriate measures, including the payment of compensation for damages or the publication of the court decision, where provided for in national law, on the party who brought those proceedings.

Protection against Third-country Judgments

This chapter has been affected by significant changes relevant from a private international law perspective.

In relation to grounds for refusal of recognition and enforcement of a third-country judgment, the reference to public policy, which was used in the original text version proposed by the Commission, has been deleted. According to the current text version, Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings against public participation by a natural or legal person domiciled in a Member State is refused if those proceedings are considered manifestly unfounded or abusive according to the law of the Member State in which recognition or enforcement is sought.

Article 18, on jurisdiction for actions related to third-country proceedings, provides as follows. Member States shall ensure that, where abusive court proceedings against public participation have been brought by a claimant domiciled outside the Union in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation for the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country.

A paragraph 2 has been added, providing that Member States may limit the exercise of the jurisdiction while proceedings are still pending in the third country.

Relations with other Private International Law Instruments

In final provisions, under Article 19, the Directive shall not affect the application of bilateral and multilateral conventions and agreements between a third State and the Union or a Member State concluded before the date of entry into force of the Directive. Recital 33a refers, as example, to the 2007 Lugano Convention, in line with Article 351 of the TFEU.

Under Recital 33b it is specified that any future review of the rules under the Brussels I bis and the Rome II Regulations should assess also the SLAPP-specific aspects of the rules on jurisdiction and applicable law.

The European Court of Human Rights (ECtHR) held in a judgment of 26 October 2023 (Application no. 32662/20) that a Hungarian child abduction procedure under the 1980 Hague Child Abduction Convention (1980 Hague Convention) was not compatible with the family rights set out in Article 8 of the European Convention on Human Rights (ECHR). The Court reiterated that national return procedures should be managed in such a way as to ensure that a swift return of the child is possible, with both parents being granted contact with the child as the procedure unfolds.

Background

A couple consisting of a Spanish father and a Hungarian mother had two children. One was born in Hungary in 2013 and one was born in Spain in 2015. After a family holiday to a third country in January 2017, the father returned alone to Spain, whereas the mother and children went to Hungary. While in Hungary, the mother told the father that she had decided to settle permanently in Hungary with the children.

In February 2017, the father filed an application for the return of the children to Spain based on the 1980 Hague Convention. Courts in three instances, including the Hungarian Supreme Court, held that the father was right and that the children should return to Spain. However, in February 2018, the Hungarian Constitutional Court suspended the enforcement of the return of the children. In a decision given in November 2018, the enforcement was cancelled by the Constitutional Court, which held that the mother’s right to a fair trial had been violated, as the children’s interests had not been considered.

After the ruling of the Constitutional Court, the return order was again a matter for the Hungarian courts. This time, a psychological evaluation of the children was presented as evidence. Again, the Hungarian courts in three instances held that the children should return to Spain. The Constitutional Court was still not satisfied and quashed this return order as well. A third round of procedures for the same return was initiated in the district court in 2020. Shortly before that, Hungarian courts recognized a Spanish judgment giving the father custody of the children under Regulation (EU) No 2201/2003 (Brussels II bis).

During the almost four-year procedure, the father had applied to see his children on numerous occasions, but Hungarian authorities permitted only twelve encounters. Ultimately, during a parental visit in 2020, the father took the children back to Spain.

At the ECtHR in Strasbourg, the father complained about the Hungarian procedure. He claimed that the return procedure had violated his family rights under Article 8 of the ECHR, as the application of the Hague Convention was wrongful, both in that he had not been granted parental contact during the procedure and in the Hungarian non-enforcement of the Spanish decisions.

Judgment

The ECtHR held initially in its judgment that a State respondent to an international child abduction has family rights obligations towards the parent seeking the return of the child. That State must, inter alia, examine applications under the 1980 Hague Convention “with a view to ensuring […] prompt reunion.”

In this regard, the ECtHR held that the Hungarian procedure had been too slow, lasting nearly four years. Specifically, the Court noted that if Hungarian authorities found it necessary to consider psychological expertise in return matters, they should have organised the procedure in such a way that the expertise in question could be obtained without undue delays.

Lastly, the Court also held that the Hungarian authorities had not taken any measures to enforce the Spanish court decisions on custody rights.

Therefore, the Court held that Hungary had violated the father’s family rights under Article 8.

Comment

The judgment of the ECtHR comes as no surprise in that it emphasizes that the sturdy principle of prompt return under the 1980 Hague Convention is protected also under Article 8 of the ECHR.

One must remember that the passage of time in child abduction cases will always favor the abducting parent. Eventually, it will not be in the best interest of the child to be returned to a parent with whom it no longer has any relationship. After all, the 1980 Hague Convention is in place to avoid that an abductor is rewarded with custody. From a private international law perspective, custody rights must be dealt with separately, in “normal” custody procedures.

The New Zealand Court of Appeal has just released a judgment on the cross-border application of New Zealand consumer and fair trading legislation (Body Corporate Number DPS 91535 v 3A Composites GmbH [2023] NZCA 647). The Court held that local consumer legislation – in the form of the Consumer Guarantees Act 1993 (CGA) – applies to foreign manufacturers. It also clarified that fair trading legislation – in the form of the Fair Trading Act 1986 (FTA) – applies to representations made to recipients in New Zealand. The decision is of particular interest to New Zealand consumers and manufacturers of goods that are supplied in New Zealand, as well as traders advertising their products to New Zealanders. More generally, the judgment provides a useful analysis of the interrelationship between statutory interpretation and choice of law, and lends weight to the proposition that product liability is properly governed by the law of the place of supply (or injury).

 

 Facts

The defendant, 3A Composites GmbH (3AC), was a German manufacturer of a cladding product installed on the plaintiffs’ buildings. The plaintiffs alleged that the product was highly flammable because it contained aluminium composite panels with a polyethylene core. Panels of this kind were the main reason why the fire at Grenfell Tower in London had spread so rapidly. The plaintiffs brought proceedings against 3AC, as well as the importers and distributors of the cladding in New Zealand. They alleged negligence, breach of s 6 of the CGA and breaches of the FTA. In response, 3AC protested the New Zealand court’s jurisdiction.

 

The High Court

The High Court upheld 3AC’s protest in relation to the CGA and FTA causes of action, on the basis that they fell outside of the territorial scope of the Acts: Body Corporate Number DP 91535 v 3A Composites GmbH [2022] NZHC 985, [2022] NZCCLR 4.

In relation to the CGA, the plaintiffs claimed that 3AC’s cladding was not of acceptable quality in accordance with the statutory guarantees in the CGA. Section 6 of the CGA provides for a right of redress against a manufacturer where goods supplied to a consumer are not of acceptable quality. The Court held that the Act did not apply to 3AC because it was a foreign manufacturer.

Referring to the Supreme Court’s decision in Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300, the Court concluded that there was “neither express language nor any necessary implication which would lead the Court to interpret the CGA as being intended to have extraterritorial reach” (at [45]). The CGA therefore did not apply to an overseas manufacturer like 3AC that did not have a presence in New Zealand (see [38]-[47]).  The Court pointed to the definition of the term “manufacturer” in s 2 of the Act, which includes “a person that imports or distributes” goods that are manufactured outside New Zealand where the foreign manufacturer does not have an ordinary place of business in New Zealand. According to the Court, the clear inference to be drawn from this definition was that the Act did not have extraterritorial effect, because otherwise there would be no need to impose the obligations of the manufacturer’s statutory guarantee upon a New Zealand-based importer of goods (at [42]-[44]).

In relation to the FTA, the plaintiffs argued that 3AC had engaged in misleading or deceptive conduct by making available promotional material on their website that was intended to have global reach and that specifically contemplated New Zealand consumers (at [107]), and by authorising publication of promotional and technical information through their exclusive distributor in New Zealand (at [108]).

The Court held that the Act did not apply to 3AC’s allegedly misleading or deceptive conduct. It referred to s 3(1), headed “application of Act to conduct outside New Zealand”. The section extends the Act to conduct outside New Zealand by any person carrying on business in New Zealand to the extent that such conduct relates to the supply of goods in New Zealand. It was clear that 3AC had never engaged in carrying on business in New Zealand (at [117]). Moreover, there was no evidence to show that 3AC had made any representations to the plaintiffs relating to supply of their product in New Zealand (at [120]).

 

The Court of Appeal

The Court of Appeal, in a judgment by Goddard J, disagreed with the High Court’s conclusion that the claims fell outside of the territorial scope of the Acts. In relation to the CGA, it held that the Act applies “to an overseas manufacturer of goods that are supplied in New Zealand” (at [61]). This interpretation was “consistent with [the] text and purpose [of the Act]”, with “broader principles of private international law” and “with the approach adopted by the Australian courts to corresponding legislation” (at [61]). The relevant “territorial connecting factor”, or “hinge”, was the supply of goods in New Zealand (at [64], [65]).

As a matter of statutory interpretation, the Court of Appeal considered that “[o]n its face the Act applies, and there is no good reason to read it more narrowly” (at [76]). The concept of extraterritoriality was irrelevant in this context (at [70]). In particular, it was inaccurate “to describe the availability of relief in respect of a supply of goods to a consumer in New Zealand against a person outside New Zealand as an ‘extraterritorial’ application of the Act” (at [64]). The Act imposed strict liability, in relation to the products supplied in New Zealand to New Zealand consumers, and did not depend on the conduct of the supplier or manufacturer in New Zealand (at [71]).

In relation to the definition of “manufacturer”, the Court accepted that its purpose was to provide a New Zealand consumer with the option of seeking redress against an importer or distributor of goods manufactured outside New Zealand, in light of the potential difficulties faced by a consumer when suing an overseas manufacturer (at [66]). However, this did not mean that the manufacturer should be excused from liability (at [67]). The Act essentially provided for concurrent liability on the part of the overseas manufacturer and the New Zealand-based importer or distributor (at [69]), which was consistent “with the focus of the legislation on providing meaningful remedies to consumers of goods supplied in New Zealand” (at [69]). This approach was consistent with Australian authority (at [72]).

The application of “established private international law choice of law principles” led to the same result (at [77]). For claims in tort in relation to goods that have caused personal injury, the relevant choice of law rules favoured application of the law of the place of injury. Applying the law of the place of manufacture “would produce the unsatisfactory result of different products on the same shelf” being governed by different liability regimes (at [77], referring to McGougan v DePuy International Ltd [2018] NZCA 91, [2018] 2 NZLR 916 at [59]). There was “broad support for a similar approach to product liability claims (at [77]). Thus, there was “a strong argument that the applicable law, where a consumer brings a product liability claim in respect of goods supplied in New Zealand, is New Zealand law” (at [78]), which included the Consumer Guarantees Act.

The Court left open the question whether a different approach might apply where an overseas manufacturer did not know its products were being sold in New Zealand, or where it had consciously chosen not to sell its products here. These concerns did not arise on the facts of the case, so the Court did not need to determine “whether such a result would go beyond the purpose of the Act, or whether private international law principles provide a solution to any apparent injustice in such a case” (at [80]).

In relation to the FTA, the Court accepted that the relevant issue was whether 3AC engaged in conduct in New Zealand that breached the Act, so the fact that s 3 (on the extraterritorial application of the Act) did not apply was not decisive (at [103]). The Act applied to false and misleading conduct in New Zealand, “regardless of where the defendant is incorporated and where it carries on business” (at [102], referring to Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754). This included communications made from outside New Zealand to recipients in New Zealand.

 

Comment

The Court of Appeal’s judgment is to be welcomed. The principle of extraterritoriality has been responsible for causing considerable confusion in the past (see Maria Hook “Does New Zealand consumer legislation apply to a claim against a foreign manufacturer?” [2022] NZLJ 201). In treating the principle as irrelevant to this case, the Court laid the path for a clear and nuanced analysis of the issues. Not only did the Court refuse to adopt the lens of extraterritoriality, it was also prepared to rely on general choice of law rules, in addition to statutory interpretation, and treated both as relevant.

Courts often approach statutory interpretation and choice of law as exclusive methodologies. At the outset of the case, they identify whether the issue is one of statutory interpretation or choice of law, and then proceed with their analysis accordingly. Here, in relation to the CGA, the Court of Appeal applied both methodologies and found that the relevant connecting factor was the place of supply, regardless of which methodology applied. The implication seemed to be that there was a shared rationale for the place of supply as the most appropriate connecting factor and that, if the two methodologies had pointed in different directions, this might have been evidence that things had gone awry.

In this way, the judgment lends support to the proposition that statutory interpretation and choice of law are not engaged in any kind of “competition”. There is a reason why product liability is typically governed by the law of the place of injury (or the place of supply, where liability is for pure economic loss). Why should this reason not also be determinative for claims under the CGA specifically? The more difficult question would be whether a statute should be given a wider scope of application than it would receive under bilateral choice of law. But here, too, it would be unhelpful to think of the conflict of laws as a kind of jilted discipline. The goal should be to identify the cross-border considerations that bear upon the scope of the particular statute, when compared to the rationale underpinning the choice of law rule that would otherwise be applicable. How else can a court decide whether a statute is intended to fall outside of general rules of choice of law? Statutory interpretation, and characterisation, are necessarily intertwined. It remains to be seen whether future courts will build on the Court of Appeal’s judgment to engage more explicitly with the interrelationship between statutory interpretation and choice of law.

On Tuesday, January 9, 2024, the Hamburg Max Planck Institute will host its 40th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Jie (Jeanne) Huang (University of Sydney Law School) will speak, in English, about the topic

 

Can Private Parties Contract out of the Hague Service Convention?

Treaties are concluded by states but often impose rights and obligations upon private parties. Can private parties contract out of a treaty including states’ oppositions without explicit permissions granted by the treaty? The complexity between private parties, states, and treaties are reflected in recent cases and unsettled debates regarding the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions imposed by 62 Member States including China, India, Singapore, and Germany. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and state sovereignty in treaty applications using the HSC as an example.

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

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

Fabian Kratzlmeier (Chicago) has accepted the invitation of the editors of the blog to present his recent book, titled ‘Die Grenzüberschreitende Unternehmensrestrukturierung im Europäischen Rechtsrahmen’ (Cross-border corporate restructuring and European private international law), published by Mohr Siebeck.

Reorganizing viable firms (instead of liquidating them) has been the state of the art in U.S. bankruptcy law for decades now, and it has become increasingly popular throughout Europe in recent years. This trend is reflected in legislative activities, such as the repeated reform efforts to the German bankruptcy code aiming at rescuing profitable, but over-indebted firms within the traditional insolvency procedure. It is also evidenced by practical patterns, most notably (not only) German companies using foreign restructuring instruments, in particular the English Scheme of Arrangement, to amend their financing structure while continuing trading in the 2010s. Even then – more than a decade ago – the wide-reaching impacts of such cross-border restructurings were heavily discussed in bankruptcy and private international law scholarship by some scholars, showing the (not only political) brisance of private international law in the area of restructuring law.

Whenever the earnings of a debtor company no longer cover its financial obligations, the creditors (and the shareholders) share a common interest in maximizing the pool of distributable assets. Where the continuation of the business under the old legal entity promises a higher present value compared to the liquidation of the debtor – be it piecemeal or through a business sale – economic logic demands a legal framework to resolve the underlying collective action problem. It is therefore the task of a modern insolvency and restructuring law to provide the parties involved with an appropriate set of rules that facilitates negotiations in order to adjust the debtor’s liabilities to the prospective earnings of the company (e.g. through debt reductions, deferrals or debt-equity-swaps).

In terms of the (continental) European landscape, the Restructuring Directive 2019 (hereinafter “Directive”) has set new standards in restructuring law, requiring Member States to reform and, in many cases, modernize their insolvency and restructuring laws. It mandates all Member States to maintain preventive restructuring instruments, enabling financially distressed companies to temporarily protect their business assets against collection or enforcement actions, and providing a majority voting scheme in order to cram down (groups of) dissenting creditors. In accordance with its minimum harmonization concept, however, the Directive leaves the Member States with a large number of choices and deviation options. Thus, the national restructuring frameworks differ widely from one another in some key aspects; e.g. regarding the entry threshold (the extent of financial distress required to access), the duration and scope of the moratorium, and the conditions and limits to the cram down mechanism (in particular as to group formation and priorities), to name but a few. The legal and economic positions of the various groups of stakeholders – and, consequently, their negotiating power in the immanent struggle over the distribution of going concern value – depend to a large extent on the jurisdiction in which the reorganization takes place and what options for action the local restructuring law offers to the respective stakeholders. It is obvious, that decision makers, when looking for suitable restructuring options, will not limit themselves to their home state’s reorganization tools, but explore foreign instruments as well, as past experiences with the English Scheme of Arrangement have proven before. As long as there is legal certainty, i.e. the reorganization is likely to be recognized by the relevant (i.e. asset-intensive) jurisdictions, decision makers have in incentive to choose the restructuring location that best serves their interests, ultimately resulting in a regulatory competition between national restructuring regimes throughout the EU. Private international law, in this context, regulates this competition by limiting (or unlocking) such choice of foreign insolvency and restructuring venues (and their respective laws). Against this background, the present study undertakes to comprehensively review and, building on its findings, further develop the legal framework for cross-border corporate restructurings within Europe, presenting a solution that is both coherent with existing European legislation, and consistent with the underlying principles of European insolvency law.

There is, however, another reason why further research in this area is desperately needed: Thanks to the ever-growing integration of the internal market and, thus, the establishment of international trade relations and supply chains, purely nationally operating companies (other than micro-enterprises) have long become the exception. It does not take much to make a national restructuring case an international one, i.e. the cross-border element does not need to amount to a foreign branch or similarly consolidated business structures. A foreign creditor or a third-party debtor based abroad suffices to turn a national company into an international restructuring case. Hence, the minimum harmonization of the substantive law by the Directive alone is not going to achieve the underlying goal set by the Union legislator, that is to provide all European companies with access to effective and efficient restructuring instruments. Rather, in cases with cross-border exposure, the question inevitably arises as to whether the financial crisis can be overcome in a single procedure – hauling all (including foreign) affected parties into one procedure and having it recognized across all (relevant) jurisdictions – or whether several procedures are necessary in order to implement a sustainable restructuring of the company and thus safe the going concern value.

Unfortunately, this need for international coordination and harmonization of cross-border corporate reorganizations, arising from the very conceptual nature of collective proceedings, has been hardly taken into account by the legislator when drafting the Directive. There are only three recitals (12 to 14) dealing with these issues in the first place, and even they contain only rudimentary (and hardly expedient) considerations regarding the relationship between the Directive and existing regulations in European private international law. In particular, they reference the European Regulation on Insolvency Proceedings (EIR) as well as the center of main interest (COMI), which is of paramount importance to the current international insolvency regime, to which it serves as the central connecting factor determining both jurisdiction and applicable law. In terms of (reliable) conclusions regarding the classification of the new restructuring frameworks and their integration into the existing private international law framework, however, the recitals only provide limited guidance. The recitals make it clear, though, that at least some of the proceedings created in transposing the Directive (i.e. those that are to be publicly announced) shall be subject to the EIR and, therefore, be included in the latter’s Annex A.

The study takes this as its starting point to demonstrate that the EIR provides a tailor-made set of rules for public proceedings, providing clear and (for the most part) fitting rules on international jurisdiction and applicable law while also guaranteeing EU-wide recognition. At the same time, however, there are some drawbacks in the EIR’s application to restructuring proceedings mainly resulting in setbacks to the collectivization mechanism aimed at on a substantive level. These issues, including rights in rem and secondary proceedings, are discussed in depth, and appropriate solutions are presented both de lege lata and de lege ferenda.

Turing to confidential restructuring frameworks, to which the recitals are silent, the scholarly debate is still evolving. Due to their private nature, they are increasingly popular in practice. At least in part motivated by the onsetting regulatory competition in the field, therefore, many Member States (including Germany, the Netherlands, and Austria) opted for a dual transposition enacting both a public and a private alternative. Since confidential procedures will not be included in Annex A and, thus, will prima facie remain outside the scope of the EIR, there are considerable hurdles to overcome in order to embed such procedures into the existing European private international law framework. First and foremost, the so-called bankruptcy clause enshrined in Art. 1 (2)(b) Brussels I bis Regulation challenges the integration into the existing secondary law altogether. A closer look at the issue reveals, however, that this provision excludes only those procedures, which qualify as “insolvency proceedings” under Art. 1 EIR, regardless of whether such proceeding is included in Annex A. Turning to international jurisdiction, the study is building on the controversy and the different propositions surrounding international jurisdiction to restructure foreign companies under an English scheme of arrangement. In that context, the arguments previously put forward in support of Art. 8 (1) (jurisdiction wherever at least one affected party has her domicile) and 24 (2) Brussels I-bis Regulation (jurisdiction at the place of the registered seat) are discussed and assessed as to their validity with regard to the new restructuring instruments. After all, the Directive differs in key respects from its English blueprint, and, thanks to its EU-law origin, requires special considerations concerning the coherence of (secondary) European law. Ultimately, the study finds that neither of the international jurisdiction rules provided for in the Brussels-I-bis Regulation are well-suited (or even practicable) for collective procedures such as the preventive restructuring instruments under the Directive. Therefore, it calls for a concentration of restructurings at the debtor’s COMI, which is in line with (and, upon a detailed examination, even envisioned by) both the EIR, and the Directive itself. In this respect, the study, using state-of-the-art European Union law methodology, extracts a coherent and consistent private international law framework for confidential restructuring procedures, centered at the debtor’s COMI, and recognized throughout the EU. At the same time, it proposes legislative amendments to the current system to clarify the private international law rules on cross-border restructurings – both for parties involved and Member States experiencing competitive pressure – and to improve the (few) inadequacies under the current legal regime.

Overall, the study reveals that the applicable law concentrates – public and confidential – restructuring proceedings at the debtor’s COMI on the one hand, but on the other hand also guarantees EU-wide recognition of the restructuring results achieved. The collectivization of creditors and shareholders implemented – in substantive terms – by the Directive, thus, continues on the level of private international law, enabling the continuation of viable companies even in a cross-border context.

The European Group for Private International Law (GEDIP) has recently adopted a position paper on the proposal for a Council Regulation in matters of Parenthood.

The Group welcomes that the EU intends to legislate in this field, since parenthood is a status from which persons derive numerous rights and obligations.

However, the Group is of the opinion that there are important shortcomings in the proposal due to the narrow perspective taken and an insufficient consideration of the legal complexities concerning parenthood in cross-border situations. It therefore encourages a reconsideration of the proposal in the light of its observations.

The Vrije Universiteit Brussel (VUB) and the Small Claims Analysis Net 2 (SCAN2) Project consortium partners and are organising a final conference regarding Small Claims Dispute Resolution on 22-23 February 2024.

The SCAN2 final conference will be organised around two main pillars: first, present the acquired research results of the SCAN2 project to the public, and second, bringing together international academics, practitioners, PhDs, and stakeholders in a supranational forum aiming to discuss the latest legal developments on the existing legal remedies for the small claims models of dispute resolutions for consumers within the European Union.

The call for papers concerns the second pillar of the conference focused on the latest developments and sharing of knowledge in relation to the European models of small claims dispute resolution and online dispute resolution (ODR).

Special consideration will be made for the topics discussing the European Small Claims Procedure Regulation (EU) 861/2007 (as amended by Regulation (EU) 2015/2421), but the organisers encourage submissions also on the following topics: small claims remedies for consumers; online dispute resolution for small claims; cross-border justice for consumers; small claims judgment and enforcement challenges; consumer privacy and data protection in using technology for resolving small claims; the connection between the Brussels Ia Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order and the European Account Preservation Order and their implementation in national procedural law; best national and supranational practices of national small claims proceedings; digitalisation of small claims proceedings; different fora for the initiation of the small claims proceedings; relationship between the Digital Service Act and ODR for consumers; the future of consumer ODR; and the revision of the new ADR directive and small claims.

Additional information can be found here. Enquiries concerning the academic aspects of the event and the call for papers should be directed to the Conference Chair, Marco Giacalone, at marco.giacalone@vub.be. All other enquiries should be addressed to seyedeh.sajedeh.salehi@vub.be or paola.giacalone@vub.be.

Ugljesa Grusic has excellent and prompt analysis of Hugh Hall Campbell KC against James Finlay (Kenya) Ltd [2023] ScotCS  CSIH_39 here. I have background to the issues ia here and I reported on the now successfully appealed first instance judgment [2023] CSOH 45 here.

Dr Grusic first of all highlights the lack of engagement by the Court (as indeed at first instance level, too) with the impact of the employment section of the Civil Jurisdiction and Judgments Act 1982 on both the question of availability at all of choice of court in employment contracts to displace domicile jurisdiction, and of the overall availability of forum non conveniens in the same circumstances.

Next, unlike the first instance judge, the Inner House held that relevant Kenyan labour law protection (including compensation) does apply to the contracts at issue, [67] that the applicants have a working and affordable regime at their disposal in Kenya to try and obtain such compensation and [69] for the reason stayed the case at least until the Kenyan scheme will play its role (or not). [70] the court oddly adds that its stay is not one of forum non conveniens, which it says it is currently leaving undecided.

One assumes PTA with the UKSC will be sought for the points identified by Ugljesa are very much unresolved points of law.

Geert.

 

 The Centre for Private International Law (CPIL) of the University of Aberdeen is pleased to announce that it is now accepting is now accepting submissions for the 2nd Postgraduate Law Conference of the Centre for Private International Law which will take place online on 6 May 2024. 

The Conference aims to provide young scholars with the opportunity to present their research before panels with relevant expertise and receive valuable feedback for further development of their work. It will include panels on Private International Law aspects of International Family Law, International Civil and Commercial Law, AI and Cross-Border Legal Issues, Human Rights. You can read more about below. 

The Centre welcomes submissions by current postgraduate law students (LLM, PhD) and recent LLM or PhD graduates who have not yet undertaken postdoctoral studies. Each panel will feature up to 4 panellists, and each panel will be allocated a combined total of 1 hour 20 minutes of presentation time and 40 minutes of Q&A. 

The deadline for submissions is 29 February 2024. If interested in submitting an abstract, please complete the application form. 

The first view articles for ICLQ issue 1 of 2024 was recently published. As regards, private international law, it contains one research article and a book review as follows:

T Marzal, “The Territorial Reach of European Union: A Private International Law Enquiry into the European Union’s Spatial Identity”

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU’s rule, the insoluble practical issues that it leads to, and the need to consider differently the EU’s spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU’s territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

 

C Okoli, “Jurisdiction Over Non-EU Defendants: Should the Brussels Ia Regulation be Extended? by Tobias Lutzi, Ennio Piovesani and Dora Zgrabljic Rotar (eds) [Hart Publishing, Oxford, 2023, 376 pp, ISBN: 978-1-5099-5891-7, £90.00 (h/bk)]

 

The Spanish Association of Professors of International Law and International Relations (AEPDIRI) is organizing its VII Seminar on current issues in Private International Law on the topic A Private International Law centred on the rights of individuals. The seminar will take place at the Faculty of Law of the Universidad Pontificia Comillas (ICADE) in Madrid (https://www.comillas.edu) on 14 March 2024.

The Seminar is intended to discuss topics related to the challenges posed by the rights of individuals from a broad perspective and from a Private International Law dimension, related to the following thematic lines: Current issues raised by the regulation of the capacity of persons in Private International Law; Current issues raised by the regulation of parentage in international situations; The rights of vulnerable persons from a Private International Law dimension; Challenges posed by digitisation to the rights of the individual in private cross-border situations; Due diligence obligations in value chains and Private International Law; Civil liability of multinationals for human rights violations; New challenges in Immigration Law; Migrants’ rights from a Private International Law perspective.

Researchers are welcome to propose presentations which should cover one of the above-mentioned questions. Proposals should fit into the objectives of the Seminar and will be selected –for their oral presentation and/or publication- according to their relevance, quality and originality in respect to their contribution to the development of Private International Law studies.

Proposals should be submitted, following the requirements of the call, no later than 15 January 2024, by e-mail to: seminarioactualidad.dipr2024@aepdiri.org.

The working language of the Seminar will be Spanish, but papers may be also presented in English or French.

The submission of abstracts for selection as well as the participation to the Seminar are free of charge.

Written by Wenliang Zhang (Associate Professor at Renmin University of China Law School), Haoxiang Ruan (PhD Candidate at Renmin University of China Law School), and William S. Dodge (the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law).

 

On September 1, 2023, the Standing Committee of China’s National People’s Congress (NPC Standing Committee) passed the Law of the People’s Republic of China on Foreign State Immunity (FSIL) (English translation here). The FSIL will enter into force on January 1, 2024.

This law heralds a fundamental shift of China’s attitude towards foreign state immunity, from strict adherence to the absolute theory to adoption of the restrictive theory. According to Article 1 of the law, the FSIL aims to “to protect the lawful rights and interests of litigants, to safeguard the equality of state sovereignty, and to promote friendly exchanges with foreign countries.” A report on the draft law also suggests that it is intended to build China’s foreign-related legal system and to promote China’s Belt and Road Initiative.

The FSIL borrowed from the foreign state immunity laws of other countries and from the UN Convention on Jurisdictional Immunities of States and Their Properties. In a prior post on Transnational Litigation Blog (TLB), one of us discussed some significant provisions of the FSIL, comparing them to the relevant provisions of the UN Convention. In this post, we examine some foreign relations aspects of the new law, including the role of the Ministry of Foreign Affairs, the principle of reciprocity, and whether the FSIL extends to Hong Kong and Macau.

 

The Prominent Role of Foreign Ministry

Several provisions of the FSIL reflect the important role of China’s Ministry of Foreign Affairs (MFA). The most notable is Article 19.

Article 19 provides in its first paragraph that Chinese courts “shall accept” documents issued by the MFA on certain factual questions. These include whether the state concerned qualifies as a “foreign sovereign state” for purposes of the FSIL, whether and when a state has been served by diplomatic note, and other factual issues relating to the acts of the state concerned. This last provision vests the MFA with authority to decide factual questions regarding the foreign state’s conduct.

The second paragraph of Article 19 empowers the MFA to issue opinions to Chinese courts on other issues “that concern foreign affairs and other such major state interests.” The distinction between the first and second paragraphs suggests that opinions on other issues are not necessarily binding on Chinese courts. On the other hand, it seems unlikely that Chinese courts will ignore opinions that the MFA decides to express.

Article 19 is somewhat similar to Article 21 of the UK State Immunity Act (SIA). The SIA grants the UK Secretary of State authority to determine conclusively whether a foreign state is covered by the Act and whether service has been made through diplomatic channels. By contrast, the US Foreign Sovereign Immunities Act (FSIA) does not give the US government authority to decide such issues. The US Supreme Court has suggested that the executive branch’s views on questions of foreign relations might be entitled to some deference, but the issue remains unresolved in US law.

Articles 4 and 17 of the FSIL also give China’s MFA roles to play. Article 4 provides that a foreign state shall not enjoy immunity from jurisdiction if the foreign state has expressly consented to the jurisdiction of Chinese courts. Article 4(4) allows a foreign state to consent, among other means, by submitting a document through diplomatic channels. Article 17 permits service of process through diplomatic channels if the foreign state cannot be served pursuant to an international agreement or other means acceptable to the foreign state.

The UN Convention’s provision on consent to jurisdiction (Article 7) does not mention diplomatic channels. Article 2(7) of the UK’s SIA, on the other hand, does allow the head of foreign state’s diplomatic mission in the United Kingdom to submit to the jurisdiction of UK courts. The US FSIA makes no express mention of diplomatic channels in its provision on waiving immunity. The UN Convention’s provision on service of process (Article 22) does allow service through diplomatic channels, as does Article 12 of the UK’s SIA. The US FSIA also permits use of diplomatic channels to serve a foreign state but only if three other means of service listed in § 1608 are not available.

The prominent role of China’s MFA under the FSIL is noteworthy, particularly in comparison to the more limited roles played by the governments of the United Kingdom and the United States. The Legislative Affairs Commission of the NPC Standing Committee has stated that the FSIL should “ensure that the policy of foreign affairs of the State is accurately captured in the case.” The provisions discussed above—particularly Article 19—seem designed to do this. On the other hand, active involvement by the MFA in cases under the FSIL may raise concerns about lack of predictability and interference with the administration of justice.

 

The Principle of Reciprocity

The foreign relations aspects of the FSIL are also reflected in its reciprocity provision. Article 21 provides: “Where foreign states accord the PRC and its property narrower immunity than is provided by this Law, the PRC will apply the principle of reciprocity.” In Chinese, the term translated here as “reciprocity” is duideng, which connotes equal treatment for unwanted or unfriendly foreign actions. In the context of foreign state immunity, duideng means that, if foreign states grant less immunity to China, China will respond by granting less immunity to those foreign states.

Under the prior Law of the People’s Republic of China on Immunity of the Property of Foreign Central Banks from Compulsory Judicial Measures, the same principle of reciprocity (duideng) was applied in Article 3 to foreign states that granted less immunity to central bank assets of the People’s Republic of China. Article 20 of the FSIL extends this principle to issues of foreign state immunity more generally. This principle of reciprocity (duideng) also appears in Article 5(2) of China’s Civil Procedure Law (CPL) and Article 99(2) of China’s Administrative Litigation Law to address restrictions on the litigation rights of Chinese parties imposed by foreign countries.

The principle of reciprocity (duideng) found in the FSIL is distinct from another principle of reciprocity (huhui) used in the context of judicial assistance between China and foreign countries. The CPL generally provides that reciprocity (huhui) may be relied upon to provide judicial assistance in service of process, investigation and collection of evidence, and other litigation activities (Article 293). Above all, reciprocity (huhui) provides the basis for recognizing and enforcing foreign judgments (Article 298). Although Chinese courts used to interpret this principle narrowly by requiring foreign courts to recognize Chinese judgments first, it has recently liberalized its position.

Because “huhui” serves to encourage or promote, whereas “duideng” serves to respond and punish, it is potentially misleading to translate both principles as “reciprocity.” It might be better to reserve “reciprocity” for the principle “huhui.” which underlies the recognition of foreign judgments for example. “Duiding,” as used in the FSIL and other Chinese laws mentioned above, might be translated instead as “equal treatment.”

 

Hong Kong and Macau

Another foreign relations aspect of the FSIL is its territorial scope of application. Hong Kong and Macau are part of the People’s Republic of China, but they have separate legal systems. Does the FSIL apply not only in Mainland China but also in Hong Kong and Macau?

The text of the FSIL does not address this question explicitly. However, the FSIL’s reference to “Courts of the People’s Republic of China” stands in sharp contrast to the references in the CPL and other Chinese laws to “People’s Courts of the People’s Republic of China” or “People’s Courts.” By using a different—and potentially broader—term, the NPC Standing Committee has certainly not restricted the FSIL’s application to courts in Mainland China.

However, Article 18(2) of Hong Kong’s Basic Law states that “National laws shall not be applied in the Hong Kong Special Administrative Region [HKSAR] except for those listed in Annex III to this Law.” Under this provision, only when the FSIL is added to Annex III will the FSIL formally apply in Hong Kong courts.

But even if the FSIL is not added to Annex III, Hong Kong courts can be expected to follow it. In Democratic Republic of the Congo v. FG Hemisphere Associates LLC (2011), the Hong Kong Court of Final Appeal held that “[t]he HKSAR cannot, as a matter of legal and constitutional principle, adhere to a doctrine of state immunity which differs from that adopted by the PRC” (¶ 183(a)). In that case, the court held that Hong Kong courts had to follow the doctrine of absolute state immunity, which was then China’s official position, even though Hong Kong courts had previously adopted the doctrine of restrictive immunity. Now that China has adopted the restrictive theory, the decision in FG Hemisphere Associates requires Hong Kong courts to follow China’s new approach. Although the details with respect to Macau are different, courts in Macau can similarly be expected to follow China’s new policy on foreign state immunity as reflected in the FSIL.

 

Conclusion

China has adopted a new approach to foreign state immunity by enacting the FSIL. Applying the FSIL will be primarily a task for China’s courts, including courts in Hong Kong and Macau, which will have to follow the new policy. Among other things, Chinese courts must apply the FSIL’s reciprocity provision, which requires them to accord “equal treatment” if foreign states grant China less immunity than the law provides. However, the leading role that courts will play under the FSIL must not cause one to ignore the significant role of China’s MFA under the new law, particularly in determining when foreign states are covered by the FSIL and in determining factual issues relating to the conduct of foreign states.

On 8 and 9 March, a conference will be held at the University of Augsburg, Germany, to discuss the current developments in the award and/or recognition of punitive damages. The conference, which is part of a larger research project, takes the leading German decision on the question as a starting point to discuss if and to what extent its highly restrictive approach is still tenable.

The conference will feature the following contributions:

Who’s Afraid of Punitive Damages?

Afraid of What?

Compensation, Punishment, and the Idea of Private Law
Prof Lukas Rademacher, University of Kiel, Germany

Punitive Damages and Insurance
Prof Jan Lüttringhaus, University of Hanover, Germany

Discussant: Prof Phillip Hellwege, University of Augsburg, Germany

Why to be Afraid?

Who‘s afraid of punitive damages for product liability?
Prof Catherine Sharkey, New York University, US

Punitive Damages in English Law
Prof Rachael Mulheron, Queen Mary University London, UK

Discussant: Dr Eleni Katsampouka, University of Cambridge, UK

When to be Afraid?

Punitive Damages and Public Policy
Prof Cedric Vanleenhove, University of Ghent, Belgium

The Public Policy Exception in the 2019 Hague Judgments Convention
Prof Marko Jovanovic, University of Belgrade, Serbia

Discussant: Prof Leonhard Hübner, University of Augsburg, Germany

Who is (Still) Afraid?

Panel 1: Still Afraid

Netherlands
Prof André Janssen, Radboud University, Netherlands

Japan
Prof Beligh Elbalti, University of Osaka, Japan

Germany
Dr Johannes Ungerer, University of Oxford, UK

Discussant: Prof Wolfgang Wurmnest, University of Hamburg, Germany

Panel 2: No Longer Afraid

France
Prof Samuel Fulli-Lemaire, Université de Strasbourg, France

Italy
Dr Caterina Benini, Università Cattolica del Sacro Cuore, Italy

South Korea
Dr Min Kyung Kim, Incheon District Court, South Korea

Discussant: Dr Eleni Katsampouka, University of Cambridge, UK

The flyer for the conference can be found here.

Registration is possible via this link; attendance is free of charge.
Scholars with a substantial interest in the subject who will be unable to travel to Augsburg may request a link to the video stream via e-mail to tobias.lutzi@jura.uni-augsburg.de.

A new book entitled Blockchain and Private International Law has been published by Brill. It is available in open access and may be downloaded here. A book launch will take place on 20 December 2023 at 18:15 CET online and at the University of Lausanne (here is the link to the livestream).

The authors of the books are experts from various jurisdictions. The editors are Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani. It comprises five parts with overall 26 chapters.

The first part focuses on fundamental issues. It addresses the foundations of Distributed Ledger Technology (Tetsuo Morishita), the principle of technological neutrality  (Bruno Mathis), the general significance of private international law for crypto assets (David Sindres), property law issues associated with them (Christiane Wendehorst), as well as the problem of blockchain pseudonymity as an obstacle for the determination of the applicable law (Anne-Grace Kleczewski).

The second part addresses general conflict-of-laws problems raised by the blockchain. A taxonomy of crypto assets is given (Felix Krysa), the (in)significance of the situs is analysed (Amy Held), policy decisions are examined (Burcu Yüksel Ripley and Florian Heindler), and the law governing digital representations of off-chain assets is discussed (Emeric Prévost).

The third part examines specific crypto assets and legal relationships. It deals with central bank digital currencies (Caroline Kleiner), stablecoins (Matthias Lehmann and Hannes Meyle), blockchain torts  (Tobias Lutzi), insolvency issues (Giovanni Maria Nori and Matteo Girolametti), the law applicable to secured transactions on the blockchain (Matthias Haentjens and Matthias Lehmann), smart contracts (Mehdi El Harrak), blockchain-based negotiable instruments (Koji Takahashi), and crypto derivatives (Gregory Chartier).

The fourth part focuses on blockchain dispute resolution. In particular, the importance of the DAO for dispute resolution is investigated (Florence Guillaume and Sven Riva), and the recognition and enforcement blockchain-based decisions is analysed (Pietro Ortolani).

The fifth part of the book contains country reports. Represented are the legal systems of Switzerland (Pascal Favrod-Coune and Kévin Belet), the United States (Frank Emmert), Germany (Felix M. Wilke), in Liechtenstein (Francesco A. Schurr and Angelika Layr) and Japan (Tetsuo Morishita).

ANZSIL awards up to four ANZSIL publication prizes on an annual basis.  Up to two prizes will be awarded for books (the ANZSIL Book Prizes) and up to two prizes will be awarded for journal articles or book chapters (the ANZSIL journal article/ book chapter prizes).  

Both prizes will be available in an open and an early career researcher (ECR) category (that is, ANZSIL may award the ANZSIL book prize; the ANZSIL book prize (early career); the ANZSIL journal article/book chapter prize; and the ANZSIL journal article/book chapter prize (early career). ECR publications may be eligible to be awarded the ECR and/or the open prize.

Prizes are to be awarded annually, with the announcement of the winner of the prizes to be made at the annual ANZSIL conference in June/ July.

A sum of $750 will be awarded to each winning ANZSIL book and a sum of $250 will be awarded to each winning article/book chapter.

The ANZSIL book and article/book chapter prize winners will be invited to present and discuss their book/article/book chapter at an online event in August/September of the year of the award. The winners of the prizes are expected to make themselves available as assessors of the prizes in the subsequent year.

Assessment Criteria 

The ANZSIL publication prizes will be open to published work in any field of public and private international law. The prizes will be awarded on the basis of the following criteria:

• Significance of the work to the field of public/private international law.
• Originality within the field of public/private international law.
• Rigour – of research methods and analysis.
• Quality of writing.

For more information: https://anzsil.org.au/ANZSIL-Publication-Prizes-2022 

Dates for the 2024 ANZSIL Publication Prizes

Nominations for the 2024 Prizes are now open.  Full details on the criteria and information on the process of nomination, section and award are available here. The closing date for nominations is 1 February 2024.

To nominate please complete the following form: Nomination form for ANZSIL Publication Prizes 2024.

Large attachments should be uploaded into this Dropbox Folder (see Nomination Form):  Dropbox Folder for ANZSIL Publication Prizes 2024.

Authored by Bea Verschraegen and Florian Heindler, the Austrian Publishing House MANZ published on 1 December 2023 an Article-by-Article Commentary in two Volumes on the entire Private International Law applicable in Austria. The volumes include, in particular, the Rome Regulations (I–III), the Succession and the Matrimonial Property Regulation, the Hague Maintenance Protocol, the Hague Conventions on the Protection of Adults, on the Protection of Children, Adoption, Child Abduction and Traffic Accidents as well as the Austrian Private International Law Act. The two volumes with 1840 pages are edited by Peter Rummel, Meinhard Lukas and Andreas Geroldinger.

 

On 7 November 2023, less than three weeks after the judgment in Limbu v Dyson Technology Ltd (reported here), where the High Court of England and Wales applied the forum non conveniens doctrine to a business and human rights claim, the Inner House of the Scottish Court of Session (Scotland’s supreme civil court) directed around 5,000 Kenyan tea pickers in Campbell v James Finlay (Kenya) Ltd to pursue their claims for occupational injuries in Kenya (previous judgments in this case included [2022] CSIH 29, which addressed the certification of group proceedings, and [2022] CSOH 57, which concerned a motion for anti-suit interdict).

The case and the Inner House’s judgment are notably unusual for several reasons.

Let’s begin with the facts. The claimants, Kenyan tea pickers, brought proceedings against James Finlay (Kenya) Ltd, a Scottish company, in Scotland. Unusually for a transnational business and human rights dispute, the defendant directly employed the claimants in Kenya. No Kenyan subsidiary or supplier was involved in the alleged wrongs. This enabled the claimants to advance relatively straightforward negligence claims for breach of employer’s duty of care.

Everyone agreed that prima facie the court had jurisdiction under rule 1 in Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, which is a rule of general jurisdiction based on the defendant’s domicile. The defendant challenged the court’s jurisdiction on two grounds: the existence of an exclusive Kenyan choice-of-court agreement and forum non conveniens.

The defendant relied on rule 6 in Schedule 8 to the 1982 Act to argue that the Scottish courts had no jurisdiction due to an exclusive Kenyan choice-of-court agreement. This is an unusual argument as this provision deals with the prorogation, not derogation, of jurisdiction of the Scottish courts, and a foreign jurisdiction agreement does not take away jurisdiction from an otherwise competent Scottish court but serves as a significant factor when deciding whether jurisdiction should be exercised. The court did not engage with these subtleties of Scottish private international law. It promptly dismissed this jurisdictional challenge by concluding, quite rightly, that the contract clause in question (“9. Industrial Sickness: The terms of the relevant national legislation shall apply.”) was not a choice-of-court agreement.

A glaring omission in the judgment is the court’s failure to acknowledge that in employment disputes the jurisdiction of the UK courts depends on sections 15A and C-E of the 1982 Act. These provisions transpose the jurisdictional rules for employment matters from the Brussels I bis Regulation into UK law. Consequently, the Scottish courts had jurisdiction over the Scottish-domiciled defendant (section 15C(2)(a)) and a choice-of-court clause in the employment contract could not deprive the claimants of this forum. The protective jurisdictional rules may be departed from only by an agreement made ex post or expanding the available forums for the employee (section 15C(6)). In other words, there was no need to even look at the dispute resolution clause for the purposes of addressing the first jurisdictional challenge.

The court then proceeded to consider forum non conveniens. The defendant contended that a no-fault compensation scheme established by the Work Injury Benefits Act 2007 in Kenya barred claims for damages, insisting that the claimants should pursue compensation under this scheme.

A preliminary question remained unaddressed: is forum non conveniens available when a UK court has jurisdiction over an employment dispute under section 15C?

The primary aim of sections 15A and C-E was, as articulated in the Explanatory Memorandum accompanying a statutory instrument which was used to transpose the jurisdictional rules for employment matters from Brussels I bis into UK law, “to ensure employees are not disadvantaged by EU exit”. Prior to Brexit, jurisdiction under Brussels I bis was mandatory (Owusu). There are other reasons against the availability of forum non conveniens in this context. It may be inconsistent with the objective of employee protection (for the strength of this objective under sections 15A and C-E, see, for example, Gagliari v Evolution Capital Management). If a foreign choice-of-court agreement can only be effective if made ex post or if it expands the available forums for the employee, allowing forum non conveniens, which is normally a less strong reason for staying proceedings, might seem contradictory. Sections 15A and C-E allow the employee to serve the claim form on the employer as of right in England, eliminating the need to seek permission to serve the claim form out of the jurisdiction. It appears inconsistent not to require the claimant to show that the forum is forum conveniens in service out cases, but to allow the defendant to plead forum non conveniens. Consequently, it is unsurprising that leading scholars (A Briggs, Private International Law in English Courts (2nd edn, OUP 2022) 194 and L Merrett, Employment Contracts and Private International Law (2nd edn), OUP 2022) 165) suggest that forum non conveniens might not be available in this context.

On the other hand, section 49 of the 1982 Act unequivocally provides that “Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 2005 Hague Convention.” Additionally, there is the authority of Dicey, Morris and Collins, who, in para 12-012, adopt a tentative view that forum non conveniens is available when a UK court has jurisdiction over an employment dispute under section 15C.

It is a shame that the court did not address this preliminary question of the availability of forum non conveniens.

The Lord Ordinary (first instance judge) decided, relying on expert evidence, that the Kenyan Work Injury Benefits Act 2007 did not apply to the claimants because it did not list back injury as a condition for the no-fault compensation scheme. Although the Act did allow for the possibility of the responsible official listing new conditions, no such decision had been made. He further rejected the plea of forum non conveniens because he decided that the claimants would not obtain justice in the Kenyan courts.

The Inner House disagreed. It found that the Act applied to the claimant’s occupational injuries. It further noted that the no-fault compensation scheme “is said to work well and is cost and lawyer free” ([67]). On the basis of all of this, the court held, at [69], that:

Having regard to the court’s construction of the WIBA, the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA, including any appeals to the [Employment and Labour Relations Court], in Kenya. If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled. However, the court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice. The concept of such justice applies to both parties and envelops the general public interest.

Leaving aside the point that the court invoked here a public interest factor, which sits uneasily with the House of Lords decision in Lubbe v Cape Plc, one gains the impression from this paragraph that the court applied a kind of conditional forum non conveniens doctrine.

But then one reads the next paragraph, where the court said that it was not applying forum non conveniens:

The court will recall the interlocutor of the Lord Ordinary dated 11 July 2023 in so far as it repels the defenders’ second plea-in-law (on forum non conveniens). It will allow the reclaiming motion and sist the group proceedings (GP1/22) pending resolution of the group members’ claims in Kenya under the WIBA scheme. It will not determine the plea of forum non conveniens at present.

One is at a loss what to make of this. The court evidently exercised a form of inherent power to sist the proceedings. But there is no attempt to explain the origin or nature of this power or its interaction with forum non conveniens.

All of this amounts to a very confusing (and confused) judgment. Hopefully, the case will find its way to the Supreme Court. The case is just too important to be decided in this way.

 

— I am grateful to Professor Adrian Briggs and Professor Louise Merrett for sharing their insights regarding the availability of forum non conveniens when a UK court has jurisdiction over an employment dispute under section 15C of the 1982 Act. Additionally, I extend my gratitude to Dr Bobby Lindsay for explaining specific points of Scottish law and for sharing a case note on the first instance judgment in this case, which will be published in the January edition of the Edinburgh Law Review. Finally, I thank Andrew Smith KC and Cameron Smith, who clarified some aspects of this litigation and offered thoughts on the likelihood of obtaining permission to appeal to the UK Supreme Court. Any mistakes or omissions in this post are solely mine.

The American Branch of the International Law Association (ABILA) invites applications for the recently-created position of Chief Operating Officer (COO).

This is a part-time remote position that requires about 60-75 hours per month (more in October for International Law Weekend) and offers a lot of flexibility and exciting experience at a 101-year old U.S.-based international law NGO, famous for organizing the annual International Law Weekend conference in New York. The compensation is in the range of $32 per hour (approximately $25k per year). If interested, please submit a cover letter, CV, and list of three references using the upload link on our website. We will begin reviewing applications immediately and conducting Zoom interviews on a rolling basis. To learn more and apply, visit our website here: https://www.ila-americanbranch.org/call-for-applicants-abila-chief-operating-officer/ Find our Twitter announcement here: https://twitter.com/ABILA_official/status/1729616334491926906?s=20 Find our LinkedIn announcement here: https://www.linkedin.com/feed/update/urn:li:activity:7135382017805885440/ Find our Facebook announcement here: https://www.facebook.com/permalink.php?story_fbid=pfbid02NqZNxEh8fyuJPFYkmv7DHi5x8GnUJQq7x9HxPcXrt9fPE5Gnr9HMwm17XMtsZFeZl&id=100089266272856

Call for Papers for the European Central Bank Legal Research Programme (LRP) scholarship 2024, which can be found on the ECB website via this link: https://www.ecb.europa.eu/pub/economic-research/programmes/legal_research/html/index.en.html.

The LRP is an interesting opportunity for researchers as it fosters analysis of areas of law relevant to the ECB’s statutory tasks and establishes closer contacts of the ECB with academia by granting a scholarship to established or early-career researchers, who will publish a paper supported by colleagues of the ECB legal services.

The Call for Papers is open until 18 February 2024.

The seven research topics contained in the Call for Papers are:

1. Climate-related risk: scenario planning for banks and supervisors
2. The ECB and climate transition plans
3. Extraterritorial scope and effect of ECB law
4. Banking supervision meets public international law – Cross-border on-site inspections
5. Taxes on banks’ windfall profits as anti-inflationary measure
6. ECB Banking Supervision powers & AI Act implementation
7. The ECB’s role as a fiscal agent and potential impacts on institutional balance

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It contains a thematic dossier of five articles, as well as several case notes.

The doctrinal part of the volume is entirely devoted to the reflections arising from the symposium held at Université de Tours on January 6, 2023 about notarial practice in international in family property law in the Ukrainian context. Under the direction of Dr. Fabienne Labelle (Université de Tours), it explores the role of the notarial profession in the development of private international law during the Ukrainian crisis

This issue offers very valuable insights for all those who, in France or elsewhere, will encounter the broad consequences of the Ukrainian war in their practice of private international law. It also gives a compelling account of the role of the discipline in the ordinary management of a state of exception and its effort to bring together cultures with sometimes very different values; as well as an overview of the potential transformations generated by the war.

Following a short introduction by Dr. Labelle, the dossier articulates five equally interesting topics.

The first article authored by Dr. Pierre Boisseau (Université de Tours) is entitled Du droit d’asile classique à l’accueil des déplacés ukrainiens : réflexion sur la complémentarité des dispositifs de protection des réfugiés (From traditional asylum to the reception of Ukrainian displaced persons: reflections on the complementarity of refugee protection schemes). Its abstract reads as follows:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by non- state groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

The second study on Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne (Spouses’ powers over their property: what are the issues for displaced persons in Ukraine? Insights from a Franco-Ukrainian comparison) is presented by Dr. Ambra Marignani (Université de Tours) and Prof. Svitlana Yaroslavovna Fursa (Director of the Center for Legal Research in Kyiv). The abstract reads as follows:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, as highlighted by the comparison of laws.

The next paper by Dr. Audrey Damiens (Université de Tours) and Prof. Fursa is devoted to La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre (Notarial practice and divorces in private international law: reflections between France and Ukraine in wartime). The abstract reads as follows:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. On the other, it considers divorce by mutual consent in France in an international situation linked to Ukraine.

The fourth article on Dévolution successorale et réserve héréditaire : comparaison entre la France et l’Ukraine (Heirship and reserved share : comparison between France and Ukraine) is co-authored by Prof. Alina Goncharova (State University of Soumy and Université de Tours) and Dr. Labelle. They gave the following abstract:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Last but not least, Prof. Goncharova and Dr. Labelle submitted the final study on Le testament, outil de planification de la succession internationale. Le cas des Ukrainiens protégés temporairement en France (The will as an instrument for international succession planning. The case of Ukrainians under temporary protection in France). Its abstract reads as follows:

Estate planning by means of a will for displaced Ukrainians poses difficulties both from the point of view of the formal and substantial validity of the deed and from the point of view of the strategies to be put in place. Extra-patrimonial and patrimonial provisions are tested by the unpredictability of Ukrainian law and certain French civil and tax rules.

The full table of contents will be available shortly.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.