Conflictoflaws

Just published in Recueil Dalloz: a “cri d’alarme” by Professors Lagarde, Gaudemet-Tallon, Kessedjian, Jault-Seseke and Pataut concerning the fate of the useful International Commission on Civil Status. Here is a translation of their call to action:

The International Commission on Civil Status in Danger[1]

POINT de Vue Recueil Dalloz issue N° 42 of 3 December 2020,  p. 2355 by Paul Lagarde, Professor emeritus Paris I University, Hélène Gaudemet-Tallon, Professor emeritus Paris II University, Catherine Kessedjian, Professor emeritus Paris II University, Fabienne Jault-Seseke, Professor at  Paris Saclay University, and Étienne Pataut, Professor at the Sorbonne Law School

Civil status issues are a crucial element of a person’s identity. Solving these issues is an essential component of the protection of the right to private and family life, and a gateway to everyone’s recognition as a person before the law. This is why many efforts are made, for instance, to promote birth registration[2]. From birth to death, the legal existence of a person is conditioned by civil status.

Recognition of civil status documents from one State to another is fundamental to ensure the continuity of personhood when people cross international borders. International cooperation is essential to allow a correct understanding and interpretation of civil status documents and facilitate their circulation (both regarding their form (instrumentum) and their content (negotium)).

This is the purpose of the International Commission on Civil Status (CIEC/ICSS), an intergovernmental organization created in the aftermath of the Second World War. The five founding States are Belgium, France, Luxembourg, The Netherlands and Switzerland. Although not operating in the spotlights, this organisation has a most respectable track record. It has enabled the adoption of thirty-four conventions and eleven recommendations on birth, name, nationality, gender change, marriage, partnership, refugees, civil status services, among others. Many of these instruments provide for cooperation of competent authorities or facilitate the understanding of civil status acts, in particular by establishing multilingual forms and allowing their electronic transmission. They have been successful and proved to be very useful. Convention No. 16 is a convincing example[3]. It binds twenty-four States, including States that are not members of the ICCS. It abolishes both legalisation and apostille requirements.

At some point, the ICCS had up to seventeen members (including States outside the EU such as Mexico and Turkey). But despite the undoubted success of the ICCS, Member States have withdrawn from the Organisation one after the other. The withdrawal by the Netherlands in 2018 and France in 2019 may deliver the final blow to the ICCS.

These withdrawals are incomprehensible.

It has been suggested that they have budgetary reasons. This seems hardly credible since the annual budgetary contribution of France to the CIEC amounted to € 33,000, whilst a further reduction to € 15,000 had already been agreed. Moreover, the ICCS has recently decided to dispense with the contribution of its members until 2025. So, this, hardly convincing, argument does not hold.

No more convincing is the idea that the European Union, because of EU regulation 2016/1191 ensuring the circulation of civil status documents in the Union (inspired by ICCS’s work), would have taken over ICCS’s mission. EU regulations do not bind third States; yet, due to migration flows, the EU Member States are often faced with questions concerning the civil status of nationals from countries in the Middle East, Africa, Asia, among others.

Moreover, by signing the Global Compact for Migration in 2019, France has committed itself to promote cooperation in the field of international migration. As the Global Compact itself reminds us, this commitment draws from actions to “Improve civil registry systems, with a particular focus on reaching unregistered persons and our nationals residing in other countries, including by providing relevant identity and civil registry documents, strengthening capacities, and investing in information and communications technology solutions, while upholding the right to privacy and protecting personal data…”.

This is precisely the role of the ICCS, currently launched in ambitious electronic communication projects on civil status documents – supported, moreover, by the European Union.  Now is the time for States (and for the European Union, which is now in a position to become itself an ICCS member) to reinvest in the ICCS – and definitely not to give up!

 

[1] For a detailed argument, see H. van Loon, Requiem or transformation? Perspectives for the CIEC / ICCS and its work, Yearbook of private international law, vol. 20 (2018/2019), p. 73-93 (this article predates France’s withdrawal).

[2] See Art 7 (1) of the United Nations Convention on the Rights of the Child.

[3] Convention on the issue of multilingual extracts from civil-status records, signed in Vienna, 8 September 1976. This Convention has, moreover, been reviewed and modernized by Convention No 34, signed in Strasbourg, 14 March 2014.

Written by Fieke van Overbeeke[1]

 

On 1 December 2020 the Grand Chamber of the CJEU ruled in the FNV/Van Den Bosch case that the Posting of Workers Directive(PWD) is applicable to the highly mobile labour activities in the road transport sector (C-815/18). This judgment is in line with recently developed EU legislation (Directive 2020/1057), the conclusion of AG Bobek and more generally the ‘communis opinio’. This question however was far from an ‘acte clair’ or ‘acte éclairé’ and the Court’s decision provides an important piece of the puzzle in this difficult matter.

The FNV/Van Den Bosch case dates back all the way to the beginning of 2014, when the Dutch trade union FNV decided to sue the Dutch transport company Van den Bosch for not applying Dutch minimum wages to their Hungarian lorry drivers that were (temporarily) working in and from its premises in the Netherlands. One of the legal questions behind this was whether the Posting of Workers Directive is applicable to the road transport sector, for indeed if it is, the minimum wages of the Netherlands should be guaranteed if they are more favourable than the Hungarian minimum wages (and they are).

At the Court of first instance, the FNV won the case with flying colours. The Court unambiguously considered that the PWD is applicable to road transport. Textual and teleological argumentation methods tied the knot here. The most important one being the fact that Article 1(2) PWD explicitly excludes the maritime transport sector from its scope and remains completely silent regarding the other transport sectors. Therefore the PWD in itself could apply to the road transport sector and thus applies to the case at hand.

Transport company Van Den Bosch appealed and won. The Court of Appeal diametrically opposed its colleague of first instance, favouring merely the principles of the internal market. The Court of Appeal ruled that it would not be in line with the purpose of the PWD to be applied to the case at hand.

The FNV then took the case to the Supreme Court (Hoge Raad), at which both parties stressed the importance of asking preliminary question to the CJEU in this matter. The Supreme Court agreed and asked i.a. whether the PWD applies to road transport and if so, under which specific circumstances.

The CJEU now cuts this Gordian knot in favour of the application of the PWD to the road transport sector. Just as the Court in first instance in the Netherlands, the CJEU employs textual and teleological argumentation methods and highlights the explicit exception of Article 1(2) PWD, meaning that the PWD in itself could apply to road transport.

As regards to the specific circumstances to which the PWD applies, the CJEU sees merit in the principle of the ‘sufficient connection’ (compare CJEU 19 December 2018, C-16/18 Dobersberger, paragraph 31) and rules:

‘A worker cannot, in the light of PWD, be considered to be posted to the territory of a Member State unless the performance of his or her work has a sufficient connection with that territory, which presupposes that an overall assessment of all the factors that characterise the activity of the worker concerned is carried out.’

So in order to apply the PWD to a specific case, there has to be a sufficient connection between worker and temporary working country. In order to carry out this assessment, the CJEU identifies several ‘relevant factors’, such as the characteristics of the provision of services, the nature of the working activities, the degree of connection between working activities of a lorry driver and the territory of each member state and the proportion of the activities compared to the entire service provision in question. Regarding the latter factor, operations involving loading or unloading goods, maintenance or cleaning of the lorries are relevant (provided that they are actually carried out by the driver concerned, not by third parties).

The CJEU also clarifies that the mere fact that a lorry driver, who is posted to work temporarily in and from a Member State, receives their instructions there and starts and finishes the job there is ‘not sufficient in itself to consider that that driver is “posted” to that territory, provided that the performance of that driver’s work does not have a sufficient connection with that territory on the basis of other factors.’

Finally, it is important to note that the Court provides a helping hand regarding three of the four main types of transport operations, namely transit operations, bilateral operations and cabotage operations. A transit operation is defined by the Court as a situation in which ‘a driver who, in the course of goods transport by road, merely transits through the territory of a Member State’. To give an example: a Polish truck driver crosses Germany to deliver goods in the Netherlands. The activities in Germany are regarded as a ‘transit operation’. A bilateral operation is defined as a situation in which ‘a driver carrying out only cross-border transport operations from the Member State where the transport undertaking is established to the territory of another Member State or vice versa’. To give another example, a Polish truck driver delivers goods in Germany and vice versa. The drivers in those operations cannot be regarded as ‘posted’ in the sense of the PWD, given the lack of a sufficient connection.

By referring to Article 2(3) and (6) of Regulation No 1072/2009, a cabotage operation is defined by the CJEU as ‘as national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with that regulation, a host Member State being the Member State in which a haulier operates other than the haulier’s Member State of establishment’. For example, a Polish lorry driver carries out transport between two venues within Germany. According to the CJEU, these operations do constitute a sufficient connection and thus will the PWD in principle apply to these operations.

In short, the CJEU gives a green light for transit- and bilateral operations and a red light for cabotage operations. The CJEU however remains silent regarding the fourth important road transport operation: cross-trade operations. A cross-trade operationis a situation in which a lorry driver from country A, provides transport between countries B and C. The sufficient connection within these operations should therefore be assessed only on a case-by-case basis.

At large, the judgment of the CJEU is in line with the road transport legislation that has been adopted recently (Directive 2020/1057). This legislation takes the applicability of the PWD to road transport as a starting point and then provides specific conflict rules to which transport operations the PWD does and does not apply. Just like the judgement of the CJEU, this legislation determines that the PWD is not applicable to transit- and bilateral operations, whereas the PWD is applicable to cabotage operations. Cross-trade operations did not get a specific conflicts rule and therefore the application of the PWD has to be assessed on a case-by-case basis, to which the various identified factors by the Court could help.

All in all, the Gordian knot is cut, yet the assessment of the applicability of the PWD to a specific case will raise considerable difficulties, given de wide margin that has been left open and the rather vague relevant factors that the CJEU has identified. Hard and fast rules however seem to be impossible to impose to the highly mobile and volatile labour activities in the sector, and in that regard the CJEU’s choice of a case by case analysis of a sufficient connection seems to be the lesser of two evils.

***

[1] Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium. On 13 December 2018 successfully defended her PhD on the topic of the applicability of the Posting of Workers Directive to the road transport sector. The PhD (in Dutch) is fully available online. Disclaimer: Fieke van Overbeeke has been a  legal expert on the side of the FNV during the trials in the Netherlands and at the CJEU.

Guest Post by John Coyle, the Reef C. Ivey II Distinguished Professor of Law at the University of North Carolina School of Law

One tried-and-true way of obtaining personal jurisdiction over a foreign person that otherwise lacks minimum contacts with a particular U.S. state is to require the person to agree ex ante to a forum selection clause.  This strategy only works, however, if the forum selection clause will be enforced by the courts in the chosen state.  To date, scholars have written extensively about the enforceability of “outbound” forum selection clauses that redirect litigation from one court to another.  They have devoted comparatively less attention to the enforceability of “inbound” forum selection clauses that purport to provide a basis for the chosen court’s assertion of personal jurisdiction over a foreign defendant.

 

In a recent paper, Katherine Richardson and I seek to remedy this deficit.  We reviewed 371 published and unpublished cases from the United States where a state court was asked to assert personal jurisdiction over an out-of-state defendant on the basis of an “inbound” consent-to-jurisdiction clause.  In conducting this review, we documented the existence of several different enforcement frameworks across states.  The state courts in New York, for example, take a very different approach to determining whether such a clause is enforceable than the state courts in Florida, which in turn take a very different approach to this question than the state courts in Utah.

 

These differences in enforcement frameworks notwithstanding, we found that consent-to-jurisdiction clauses are routinely given effect.  Indeed, our data suggest that such clauses are enforced by state courts approximately 85% of the time.  When the courts refuse to enforce these clauses, moreover, they tend to cite just a handful of predictable reasons.  First, the courts may refuse to enforce when the clause fails to provide proper notice to the defendant of the chosen forum.  Second, the courts may conclude that the clause should not be given effect because the parties lack a connection to the chosen forum or that litigating in that forum would be seriously inconvenient.  Third, a clause may go unenforced because it is contrary to the public policy of a state with a close connection to the parties and the dispute.

 

After mapping the relevant terrain, we then proceed to make several proposals for reform.  We argue that the courts should generally decline to enforce consent-to-jurisdiction clauses when they are written into contracts of adhesion and deployed against unsophisticated counterparties.  We further argue that the courts should decline to enforce such clauses in cases where the defendant was never given notice as to where, exactly, he was consenting to jurisdiction.  Finally, we argue that the courts should retain the flexibility to decide whether to dismiss on the basis of forum non conveniens even when a forum selection clause specifically names the jurisdiction where the litigation is brought.  Each of these reforms would, in our view, produce fairer and more equitable results across a wide range of cases.

 

Although our research focused primarily on state courts, our reform proposals are relevant to federal practice as well.  Federal courts sitting in diversity are required by Federal Rule of Civil Procedure 4(k)(1)(a) to follow the law of the state in which they sit when they are called upon to determine whether to enforce a consent-to-jurisdiction clause.  If a given state were to revise or reform its rules on this topic along the lines set forth above, the federal courts sitting in that state would be obliged to follow suit.

The following entry is the first of two parts that provide an introduction to the Elgar Companion to the Hague Conference on Private International Law (HCCH). Together, the parts will offer readers an overview of the structure of the Companion (Part I) as well as of the core themes as they emerged from the 35 Chapters (Part II). Both parts are based on, and draw from, the Editors’ Introduction to the Elgar Companion to the HCCH, which Elgar kindly permitted.

Introduction

The Elgar Companion to the HCCH will be launched on 15 December 2020 as part of a 1 h long virtual seminar. The Companion, edited by Thomas John, Dr Rishi Gulati and Dr Ben Koehler, is a unique, unprecedented and comprehensive insight into the HCCH, compiling in one source accessible and thought-provoking contributions on the Organisation’s work. Written by some of the world’s leading private international lawyers, all of whom have directly or indirectly worked closely with the HCCH, the result is a collection of innovative and reflective contributions, which will inform shaping the future of this important global institution.

The Companion is timely: for more than 125 years, the HCCH has been the premier international organisation mandated to help achieve global consensus on the private international law rules regulating cross-border personal and commercial relationships. The organisation helps to develop dedicated multilateral legal instruments pertaining to personal, family and commercial legal situations that cross national borders and has been, and continues to be, a shining example of the tangible benefits effective and successful multilateralism can yield for people and businesses globally.

Approach to private international law

The Companion approaches private international law classically, that is, by understanding the subject matter with reference to its three dimensions: jurisdiction, applicable law, and the recognition and enforcement of foreign judgments. But, as the contributions in this work show, since its inception, and in particular since the 1980s, the HCCH has helped to reach international consensus concerning a further, a “fourth” dimension of private international law: cross-border legal cooperation.

In line with this development, and with the firm belief that such cooperation is crucial to the private international law of the 21st century, the Companion has adopted a strong focus on cross-border legal cooperation, including by an increased use of technology. This deliberate choice was fortuitous: the global pandemic is testing the domestic and international justice sector like never before, bringing into sharp focus the often non-existing or still arcane methods prevalent especially in the area of cross-border legal cooperation.

Structure of the Companion

The Companion comprises 35 Chapters that are organised into three Parts.

Part I of the Companion: Institutional perspectives

Part I consists of three Sections. Section 1 considers the HCCH as an international organisation and the contributions trace the development of the Organisation from its inception in 1893 until the present day, including its trajectory towards a truly global organisation. The initial Chapters specifically concern the history of the HCCH; its institutional setting, especially in terms of the HCCH’s privileges and immunities; as well as a contribution on the relationship between the HCCH, and the other two international organisations dealing with international private law issues, i.e., UNCITRAL and UNIDROIT, often also referred to as the HCCH’s ‘Sister Organisations’.

The following Section is dedicated to the HCCH as an organisation with global reach. The Chapters demonstrate how the HCCH is evolving from an organisation whose membership was historically European-based into an increasingly global institution. The HCCH currently has 86 Members (as of December 2020), comprising 85 States and the EU. Perhaps other Regional Economic Integration Organisations (REIO) may also become members one day, and this should be encouraged. Remarkably, since the turn of the century, the HCCH has added 39 New Members (or 45% of its current membership), including six South American States, two States from North America, one in Oceania, fourteen in Asia, eleven in Europe and five in Africa.[1] Since 3 December, the HCCH has a further Candidate State: Mongolia, which has applied for membership and for which the six-month voting period is now running. Importantly, this Section considers the HCCH’s expanded reach, including thoughtful contributions on the organisation’s work in Latin America and the Caribbean; Africa; and in the Asia Pacific. The Chapters also reflect on the work of the HCCH’s Regional Offices, namely, the Regional Office for Asia and the Pacific (ROAP), which is based in Hong Kong and commenced its work in 2012; as well as the Regional Office for Latin America and the Caribbean (ROLAC), operating out of Buenos Aires since 2005.

Part I’s final Section looks at the HCCH as a driver of private international law. The Chapters contain stimulating contributions concerning some of the contemporary philosophical dimensions of private international law as shaped by globalisation, and the ways in which the HCCH can be understood in this context; the role the Organisation can play in shaping private international law into the future; considering whether the 2015 Choice of Law Principles establish a good framework for regulatory competition in contract law; what role the HCCH can play in further strengthening legal cooperation across borders; and the concept of public order, including its relationship with mandatory law.

Part II of the Companion: Current instruments

Part II of the Companion concerns contributions on existing HCCH instruments. It traces the evolution, implementation, and effectiveness of each of those instruments, and looks forward in terms of how improvements may be achieved. The contributors not only provide a record of the organisation’s successes and achievements, but also provide a critical analysis of the HCCH’s current work. They canvassed the traditional tripartite of private international law, including forum selection, choice of law and the recognition and enforcement of judgments. In addition, they also provided their thoughts on the fourth dimension of private international law, i.e. cross-border legal cooperation, tracing the pioneering, as well as championing, role of the HCCH in this regard, resulting in cooperation being a quintessential feature, in particular of more modern conventions, developed and adopted by the HCCH.

Part II is organised following the three pillars of the HCCH: (1) family law; (2) international civil procedure, cross-border litigation and legal cooperation; and (3) commercial and financial law.

The first Section of Part II addresses HCCH instruments in the family law sphere. Contributions include an analysis of the HCCH and its instruments relating to marriage; the 1980 Child Abduction Convention; the 1993 Intercountry Adoption Convention; a Chapter on the challenges posed by the 1996 Child Protection Convention in South America; the 2000 Adult Protection Convention; a contribution on HCCH instruments in the area of maintenance Obligations; the work of the HCCH in the field of mediation in international children’s cases; and a contribution overviewing the interaction between various HCCH instruments concerning child protection.

The second Section concerns HCCH instruments that are some of its major successes. But as the Chapters show, more work needs to be done given the ever-increasing cross-border movement of goods, services and people, and the need to better incorporate the use of technology in cross border legal cooperation. Contributions concern the 1961 Apostille Convention; the 1965 Service and 1970 Evidence Conventions; the 2005 Choice of Court Convention; and finally, the 2019 Judgments Convention which was decades in the making.

The final Section in Part II consists of contributions on HCCH commercial and finance instruments. Contributions specifically focus on the 1985 Trusts Convention; the 2006 Securities Convention; and the 2015 Choice of Law Principles, which constitute a soft law instrument demonstrating versatility in the kind of instruments HCCH has helped negotiate.

Part III – Current and possible future priorities

Part III of the Companion consists of Chapters that discuss the substantive development of private international law focusing on current and possible future priorities for the HCCH. In that regard, this Companion seeks to bridge the HCCH’s past and its future.

The first Section focuses on current priorities. It consists of contributions on a highly difficult and sensitive area of international family law, i.e. parentage and international surrogacy and how the HCCH may assist with its consensual solutions; how the HCCH may play a global governance role in the area of the protection of international tourists; and how the exercise of civil jurisdiction can be regulated. Specifically, this Chapter shows how the doctrine of forum non conveniens is increasingly being influenced by access to justice considerations, a matter borne out by comparative analysis.

The second Section of Part III, and of the Companion, contemplates possible future priorities for the HCCH. Contributions concern how private international law rules ought to be developed in the context of FinTech; what role the HCCH may play in setting out the private international law rules in the sphere of international commercial arbitration; how the digitisation of legal cooperation ought to reshape the fourth dimension of private international law; the potential development of special private international law rules in the context of complex contractual relationships; how the HCCH can engage with and embrace modern information technology in terms of the development of private international law; and finally, what role there is for the HCCH in developing a regulatory regime for highly mobile international employees. It is hoped that in addition to providing ideas on how progress may be made on its current priorities, the contributions in Part III can also provide a basis for the HCCH’s future work.

Concluding remarks and outlook

The editors, who collaboratively prepared this entry, chose this structure for the Companion to provide the reader with an easy access to a complex organisation that does complex work. The structure also makes accessible the span of time the Companion bridges, chronicling the HCCH’s history, reaching back to 1893, while looking forward into its future.

The second entry on Conflict-of-Laws.net will outline the editor’s reflections on the 35 Chapters, drawing out some of the key themes that emerged from the Companion, including the HCCH’s contribution to access to justice and multilateralism.

[1] HCCH, ‘Members & Parties’ <https://www.hcch.net/en/states> accessed 6 December 2020. The latest Member State is Nicaragua for which the Statute of the HCCH entered into force on 21 October 2020.

The University of Zurich, Switzerland, has asked CoL to publish the following:

The University of Zurich is seeking applications for a Professorship in private law (with a focus on the Code of Obligations) to take effect from the beginning of the Spring Semester 2022 (1 February 2022), or by arrangement. The level of employment is 50%. The professorship is to be occupied by an individual with a command of the Swiss Code of Obligations as a subject in its full breadth and in reference to comparative law. Proof of exceptional qualification in this subject is to be provided in the form of an outstanding dissertation and a completed or near-com-pleted habilitation thesis (or equivalent academic accomplishment). Also desirable is a willingness to use research and teaching to address current issues concerning the Code of Obligations that may arise in the course of digitalisation, for example, as well as other develop-ments. Depending on the applicant’s qualifications, the professorship will take the form of a full or associate professorship. A temporary tenure-track assistant professorship is possible if the applicant’s habilitation thesis is at an advanced stage but is not yet completed. The University of Zurich strives to increase the representation of women in research and teaching, and therefore specifically encourages qualified female academics to apply. Further information relating to this job profile can be found below. Please submit your application documents as specified in the job profile by 30 December 2020 via www.recruiting.ius.uzh.ch. You may be requested to submit hard-copy documents separately at a later point. The relevant member of the appointment committee, Professor Helmut Heiss (helmut.heiss@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

The British Institute of International and Comparative Law (BIICL) (in consortium with Civic Consulting) has been selected by the European Commission to conduct a study supporting the preparation of a report on the application of the Rome II Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (JUST/2019/JCOO/FW/CIVI/0167).

The study assesses the 10-year application of the Rome II Regulation in the Member States and will support the Commission in the future review of the Regulation. It analyses all areas covered and looks into specific, cutting-edge questions, such as cross-border corporate violations of businesses against human rights and the potential impact of the development of artificial intelligence.

To gather views of practitioners and academics from all Member States, BIICL conducts a survey which is available here: https://www.surveymonkey.com/r/JLWQ8XQ

Please contribute your experience to the study, if you have a particular expertise in the Rome II Regulation, or in one of the above-mentioned areas – namely cross-border torts related to artificial intelligence, corporate abuses against human rights, or defamation.
BIICL invites interested colleagues from all Member States to participate in the survey, but seeks in particular more contributions from: Bulgaria, Croatia, Cyprus, Finland, Luxembourg, Romania and Slovenia.

Deadline: December 31st, 2020

More information about the Study is available on BIICL’s website (https://www.biicl.org/projects/com-study-on-the-rome-ii-regulation).

 

First Part https://fb.watch/2a8DGPRMtc/ (HCCH); https://fb.watch/2a8XU-EuX6/  (ASADIP)

Second Part https://fb.watch/2a8Bmy347e/ (HCCH); https://fb.watch/2a8VDZCcPL/ (ASADIP)

 

By Dr Sarah McKibbin

In the recent decision of RCD Holdings Ltd v LT Game International (Australia) Ltd,[1] Davis J of the Supreme Court of Queensland dismissed proceedings brought in breach of an exclusive jurisdiction clause that had been expressed in ‘an arm’s length agreement reached between commercial entities’.[2] In deciding whether to exercise his discretion not to stay or dismiss proceedings, Davis J examined whether procedural disadvantages and ‘inconvenience’ in the jurisdiction nominated in the clause were relevant considerations.

In 2013, the parties entered a contract setting up a scheme to promote a computer betting game at casinos in Melbourne, Nevada and Melbourne.[3] The contract, which was signed and to be partially performed in Australia, included a clause entitled ‘Governing Law’ by which the parties agreed that:[4]

any dispute or issue arising hereunder, including an 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.

A dispute arose and, notwithstanding the clause, the plaintiffs commenced proceedings in Queensland alleging breaches of the contract in connection with the scheme’s implementation at Crown Casino in Melbourne. The defendant, LT, entered a conditional appearance seeking to strike out the claim or, alternatively, have it stayed based on the exclusive jurisdiction clause. The plaintiffs’ submissions focused on the inconvenience of having to litigate in Macau and the perceived procedural advantages secured by LT in doing so.[5] The plaintiffs further submitted that the COVID-19 pandemic prevented them from commencing proceedings in Macau.[6]

The decision reinforces that ‘strong reasons’[7] are required to enliven the court’s discretion not to grant a stay of proceedings brought in breach of an exclusive jurisdiction clause. This reflects a fundamental policy consideration that ‘“parties who have made a contract should be kept to it”’.[8] Here, the parties differed on the circumstances relevant to the exercise of this discretion.[9] The plaintiffs relied upon the list of circumstances identified by Brandon J in The Eleftheria, which included ‘the relative convenience and expense of the trial’ and ‘[w]hether the plaintiffs would be prejudiced by having to sue in the foreign court’.[10]  As Davis J marked, subsequent English and Australian decisions have questioned the role of procedural disadvantages and inconvenience in the nominated jurisdiction, ‘at least when they are factors which should have been known at the time the exclusive jurisdiction clause was agreed.’[11]

In that respect, Davis J followed the judgment of Bell P in the recent New South Wales Court of Appeal decision of Australian Health & Nutrition Association Ltd v Hive Marketing Group,[12] which endorsed the critical observations of Allsop J in Incitec Ltd v Alkimos Shipping Corp[13] and Waller J in British Aerospace plc v Dee Howard Co.[14] In Incitec, Allsop J perceived ‘financial and forensic inconvenience’ to the party bound by the clause to be the direct consequence of the bargain entered.[15] In a similar vein, Waller J in British Aerospace considered that these factors ‘would have been eminently foreseeable at the time that [the parties] entered into the contract’.[16]

Setting issues of ‘inconvenience’ to one side, however, Davis J attached greater significance to the fact that the parties upon contracting presumably ‘considered the commercial wisdom of agreeing’ to the inclusion of the clause.[17] The factors relied upon by the plaintiffs were in existence and could have been taken into account by the parties at the time of contracting.[18] Indeed, evidence demonstrated that the courts of Macau: (1) could deal with the claim; (2) could provide the remedy sought by the plaintiffs; and (3) would accept court documents in the English language.[19] Issues of inconvenience ‘can hardly be weighty in the exercise of discretion where one party seeks to deny the other the benefit of the covenant.’[20] Finally, Davis J observed that ‘there is little, if any, evidence at all as to the impact of the pandemic upon any litigation in Macau’.[21] Yet, ‘if the pandemic developed so as to effectively prevent, or unduly frustrate’ litigation in Macau, this discretionary consideration would be taken into account together with ‘any other relevant considerations’ in a subsequent application.[22]

[1] [2020] QSC 318.

[2] Ibid, [56].

[3] Davis J observes that ‘[t]he scheme is clearly to be targeted at casinos throughout the world’: at para [7].

[4] RCD Holdings (n 1) [8].

[5] Ibid, [54].

[6] Ibid, [33].

[7] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 259 (Gaudron J). Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418, 429 (Dawson and McHugh JJ), 445 (Toohey, Gaudron and Gummow JJ).

[8] Ibid, quoted in RCD Holdings (n 1) [57].

[9] Ibid, [58].

[10] Ibid.

[11] See, eg, British Aerospace plc v Dee Howard Co [1993] 1 Lloyd’s Rep 368; Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496, 506; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419.

[12] Australian Health & Nutrition (n 7).

[13] (2004) 138 FCR 496, 506 [49].

[14] [1993] 1 Lloyd’s Rep 368, 376.

[15] Incitec Ltd v Alkimos Shipping Corp (n 11) 506 [49].

[16] British Aerospace plc v Dee Howard Co (n 12) 376.

[17] RCD Holdings (n 1), [65].

[18] Ibid.

[19] Ibid, [32].

[20] Ibid, [65].

[21] Ibid, [70].

[22] Ibid.

Guest post by Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki and Director of the Finnish Center of Chinese Law and Chinese Legal Culture

The International Academy of Comparative Law launched a new open access publication in November 2020. Volume no 1 on the use of comparative law methodology in international arbitration contains articles by Emmanuel Gaillard, Sebastián Partida, Charles-Maurice Mazuy, S.I. Strong, Johannes Landbrecht, Morad El Kadmiri, Marco Torsello, Ulla Liukkunen, Alyssa King, Alexander Ferguson, Dorothée Goertz and Luis Bergolla as well as introductory remarks on the topic by the Secretary-General of the Academy, Diego P. Fernández Arroyo.

The volume no 1 is available on aidc-iacl.org/journal.

 

The article “Chinese context and complexities — comparative law and private international law facing new normativities in international commercial arbitration” was written by Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki and Director of the Finnish Center of Chinese Law and Chinese Legal Culture.

 

Professor Liukkunen examines international commercial arbitration from the perspective of Chinese developments, noting that, in global terms, the organization of cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness.

 

According to Liukkunen, these developments challenge the current narrative of international arbitration. She explores private international law as a framework for unfolding noteworthy characteristics of the Chinese legal system and legal culture that are present in international commercial arbitration and can be linked to an assessment of the role of the BRI in shaping the arbitration regime. A rethink of comparative methodology is proposed in order to promote an understanding of Chinese law in the arbitration process.

 

Moreover, Liukkunen argues that considerations of the Chinese private international law and arbitration regime speak for a broader comparative research perspective towards international commercial arbitration. In the international commercial arbitration frame under scrutiny, we can see the conception of party autonomy placed in a Chinese context where the state is shaping the still relatively young private international law frame for exercise of that freedom and certain institutional structures are advocated where party autonomy is placed. Chinese development underlines the connection between the legal regime of arbitration and endeavours by the state, thereby requiring assessment of party autonomy from the perspective of the regulatory framework of private international law that expresses the complex dichotomy between private and public interests.

 

 

 

 

After the successful first four online seminars on Brussels IIter last week (see previous post on Brussels IIter seminars), we have decided to add a seventh seminar to our series: Child Participation: past research results and the new rules of Brussels IIter, 17 December 2020, 14.00 – 15.15 (after the seminar on provisional measures, transfer and lis pendens, which will end at 13.45). Chair person: Laura Carpaneto, University of Genoa Francesca Maoli, University of Genoa, in collaboration with Tine Van Hof, University of Antwerp Robert Fucik, Austrian Central Authority. Please enrol if you are interested and then we will send the link for the zoom meeting. Persons who have already enrolled for any of the other six sessions can join without having to enrol again.

The facts of the 2021 Pax Moot is available (see https://paxmoot.com/the-case/)! Teams can start registering.

The 2021 Round is named after Arthur von Mehren, a giant of international procedure across the Atlantic.  2021 will mark the 15th year after his passing away. After the adoption of the 2019 Hague Convention (which might prove relevant for the case ;-)) the organisers thought it appropriate to celebrate him in this way.

The pleadings will take pace in April 2021 (the timeline and further information are available on the Pax webpage).

Conventions & Instruments

On 2 November 2020, Jamaica deposited its instrument of accession to the HCCH 1961 Apostille Convention. It now has 119 Contracting Parties and will enter into force for Jamaica on 3 July 2021. More information is available here.

On 4 November, the Permanent Bureau was informed that on 26 October 2020, Saint Kitts & Nevis deposited its instrument of accession to the HCCH 1993 Adoption Convention. It now has 103 Contracting Parties and will enter into force for Saint Kitts & Nevis on 1 February 2021. More information is available here.

Meetings & Events

From 12 to 13 November 2020, the HCCH, together with the UNIDROIT and UNCITRAL, co-hosted the 2020 International Conference of the Judicial Policy Research Institute (Rep. of Korea) on International Commercial Litigation. A full recording of the event is available here.

From 16 to 19 November 2020, the Experts’ Group on Jurisdiction met for the fourth time, via videoconference. The meeting focused on the elements to be included on a possible future instrument on direct jurisdiction and parallel proceedings. More information is available here.

Following last month’s Roundtable on the 2019 Judgments Convention co-hosted by the HCCH and the University of Bonn (a pre-cursor to the September 2021 Conference), a full recording of the event is available here.

Publications & Documentation

On 24 November 2020, the Permanent Bureau launched the post-event publication of the inaugural edition of HCCH a|Bridged, of which the focus was the Service Convention in the Era of Electronic and Information Technology. The publication is now available for download in English only. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On 29 October 2o20, the University of Bonn and the HCCH co-hosted a video roundtable on the HCCH 2019 Judgments Convention.This video roundtable explored the prospects of the Convention from a particular perspective, and this was the perspective of the relations between the EU and third states: neighbouring states, trade partners in particular, but also other states. The organisors were very happy to have received a large number of registrations from all over the world and from all areas of interest. The event was also meant to prepare the “main conference” of the organisors on the Convention, which is planned to be taking place at the University of Bonn on site on 13 and 14 September 2021. The recording of the pre-conference video roundtable is now available on the HCCH’s youtube channel as well as here.

For those of us who read German: Jayme and Hausmann have just published the 20th edition of their collection of PIL norms on German national, EU and international level. The book has grown considerably in volume over the decades and has particularly done so for its latest edition – from 1441 to now 1537 pages. An indispensable working tool – even in times of the internet.

This book is devoted to the applicable law to contractual and non-contractual obligations in the European Union as applied before the Courts. It should be a valuable resource for practitioners, the judiciary, and academics who are interested in understanding how EU law is applied on national level. The Rome I and II Regulations are meant to provide for uniform conflict-of-laws rules. In theory, all national courts of EU Member States (excluding Denmark) apply the same rules determining the applicable law. Rome I and Rome II in Practice examines whether the theory has been put into practice and assesses the difficulties that may have arisen in the interpretation and application of these Regulations. The book contains a general report by the editor and a number of national reports.

 

This book is an article-by-article ‘German-style’ commentary on the Rome I, II and III Regulations on European Union (EU) conflict of laws. It describes and systematically explains black letter law as applied by the Court of Justice of the EU (CJEU) and the Member State courts.

Access to justice is not a new topic. Since Mauro Cappelletti and Bryant Garth’s survey of different methods to promote access to justice was published (Access to Justice. A World Survey (Giueffre SIJTHOFF 1978), making access to justice cheaper and effective has become a legal policy (see for instance The Right Honourable the Lord Woolf report on Access to Justice, 1996). One of Cappelletti and Garth’s ideas was that there were three waves of access to justice. The third wave, called ‘The Access to Justice Approach’, stated that arbitration would play a significant role in fomenting access to justice. The idea was that people would seek alternatives to the regular court system.  Arbitration has grown exponentially since the publication of Cappelletti and Garth’s work, reaching disputes that were traditionally only decided by courts. The guarantee of adequate access to justice is now generating questions about the impact of this expansion. For purely commercial arbitration, such as one between two multinational companies represented by multinational law firms, waiving some rights of access to justice might not create a problem to the fairness in the arbitral procedure. However, in a dispute in which the inequality of bargaining power is evident, for arbitration to be fair and a trustworthy sustainable dispute resolution method, waiving rights to access to justice might not be the best way forward.

With the above ideas in mind, this book aims at presenting a collection of studies about access to justice in arbitration to present, for the first time, in one single title, an analysis of the role access to justice plays in arbitration. The book makes a unique contribution to the current international research and practice of arbitration as it looks at the conceptual contribution to the notion of access to justice in arbitration; and it provides a picture of how access to justice works in various types of arbitration. In five parts, the book will show the concerns about access to justice in arbitration, how they are materialised in a practical scenario and finally, how it is applied in arbitral institutions.

The book’s first part brings a conceptual contribution to the notion of access to justice in arbitration and deals with theoretical and conceptual gaps in this area. Leonardo V.P. de Oliveira starts with a conceptual analysis of access to justice and how it should be applied in arbitration. Clotilde Fortier looks at consent as the central part of arbitration and how it relates to access to justice. Joao Ilhão Moreira examines if arbitration can provide a fair, independent and accessible dispute resolution mechanism outside large contractual disputes and Ramona Elisabeta Cirlig assesses the interaction between courts and arbitral tribunals as a guarantor of access to justice.

The second part of the book discusses two specific points in investment disputes. Berk Dermikol looks at the possibility of bringing an autonomous claim based on the NYC in investment treaty arbitration as a form of access to justice. Crina Baltag evaluates the issue of access to justice and non-disputing parties – amici curiae– in investment law and arbitration.

In the third part, access to justice in specific types of disputes submitted to arbitration is scrutinised. Carolina Morandi presents a case study of access to justice in labour and employment arbitration in light of the Brazilian and the US experiences. Ian Blackshaw looks at how sports disputes submitted to CAS have been dealing with the question of access to justice. Johanna Hoekstra and Aysem Diker Vanberg examine access to justice with regards to competition law in the EU with a view to determine whether arbitration can lower barriers. Lastly, Youseph Farah addresses the use of unilaterally binding arbitration as a mechanism to improve access to justice in business-related human rights violations.

Part four reports on two aspects of technology and access to justice. Mirèze Philippe looks at ODR as a method to guarantee access to justice whilst Sara Hourani investigates how Blockchain-based arbitration can be used to improve access to justice.

Lastly, the book presents the view of how two arbitral institutions deal with the question of costs and access to justice, and how the rules of one arbitral institution provide access to justice guarantees. Aislinn O’Connell assesses access to justice under WIPO’s Arbitration Rules whilst Christine Sim examines costs at SIAC and Duarte Henriques and Avani Agarwal do the same in relation to ICSID.

On 8 December 2020 (11am – 2 pm EST), the ABA will host an online seminar on the principles of treaty interpretation, a core skill of every international lawyer.

Leading experts will discuss the goals, principles and challenges of treaty interpretation in a plenary session. Participants will then have the opportunity in a smaller working group to tackle interpretation in one of several pressing areas:

• human rights and the challenges of diplomatic immunity;
• private international law; and
• national security exceptions in trade and investment agreements.

For more information, including registration, click here.

Report prepared by Onyoja Momoh, Post-Doctoral Researcher at the University of Aberdeen.

 

On Thursday 5th of November 2020, the Nigerian Group on Private International Law (“NGPIL”) held its first committee meeting by virtual platform. In attendance at the meeting and forming the Committee of NGPIL were: Dr Onyoja Momoh (English Barrister at 5 Pump Court; Research Fellow at University of Aberdeen), Dr Pontian Okoli (Lecturer at University of Stirling), Dr Abubakri Yekini (Lecturer at Lagos State University) Dr Chukwuma Okoli (Post-Doctoral Researcher at T.M.C Asser Instituut), and Dr Chukwudi Ojiegbe (Contracts Manager at ACE Winches). This new initiative will bring together a unique group of experts with an important ethos: the promotion of private international law in Nigeria.

The NGPIL unanimously agreed that its aims are (1) to improve the law in Nigeria in matters relating to private international law (“PIL”) (2) to persuade the Nigerian government to accede to the Hague Conventions on PIL (3) to liaise with other experts, groups, and research centres on PIL on a global level (4) to nurture, guide and develop the legal mechanism and framework for PIL in Nigeria (5) to be the collective voice of PIL experts for the Nigerian government, the judiciary, lawyers and other relevant stakeholders and, (6) to improve the links and communication between PIL experts in Africa.

NGPIL’s activities will be far-reaching, from research projects to academic writings, dissemination events (conferences, seminars, workshops) and creating a platform for consultation and advisory work to the Nigerian government and other relevant stakeholders. A key aim is to build PIL recognition within the legal and judicial community, one that may lead to identifying a Hague Network Judge or Judges for Nigeria.

The Committee discussed plans for an inaugural event open to the public. There was a general consensus that the event will be hosted on a virtual platform given the uncertain climate, to take place in the Spring/Summer of 2021. Holding a virtual event would have huge benefits, especially the ease of engagement and participation for our main target audience across Nigeria and beyond. The proposal is to work in collaboration with the Nigerian Bar Association and academics at the Nigerian Institute of Advance Legal Studies, drawing together academics and practitioners alike, and extending invitations to the Nigerian government and other relevant organisations.

The next meeting of the NGPIL will take place in January 2021.

In today’s Opinion delivered in the case Obala i lucice, C-307/19, Advocate General Bobek revisits the line of case law built upon the judgment in Pula Parking, C-551/15, pertaining to the enforcement of unpaid public parking tickets by means of a writ of execution issued by a Croatian notary. This time both the Brussels I bis Regulation and the Service Regulation are at stake.

Factual context

A car is leased from NLB Leasing d.o.o., a company that provides financing for the use of vehicles, equipment and real estate in Slovenia and is – as it may be inferred from point 1 of the Opinion – based in that Member State.

On 30 June 2012, the car is parked on a public street in Zadar (Croatia). The street is defined parking zone with designated parking spaces. Obala i lucice d.o.o., entity based in Croatia, is charged with the management and maintenance of public areas for parking of motor vehicles. As the car does not have a parking ticket on display, that entity issues a daily parking ticket.

On 1 July 2013, Croatia joins the EU. Four years later, in 2017, the parking management entity commences enforcement proceedings for recovery of the parking ticket debt with a notary, by making an application for enforcement on the basis of an ‘authentic document’. That document is an extract from the accounts of Obala i lucice d.o.o., which recorded the debt relating to the unpaid ticket.

The notary issues a writ of execution on the basis of the ‘authentic document’, which is subsequently served to NLB Leasing d.o.o. in Slovenia. The latter challenges the writ before Croatian courts.

A commercial court in Pazin rules that it lacks jurisdiction and refers the case to the commercial court in Zadar. The latter also considers that it lacks jurisdiction and refers the case to the high commercial court, which decides to seize the Court of Justice with a series of preliminary questions.

Opinion of AG

It has to be mentioned at the outset that the Opinion is not addressing all the questions referred to the Court of Justice for a preliminary ruling. As the Opinion clarifies at its point 25, the Court asked its AG to elaborate only on some of the questions. The Opinion constitutes therefore the so-called ‘conclusions ciblées’.

At point 34, AG establishes the need to rearrange these questions and lists the legal inquiries analyzed in the Opinion, namely, firstly, whether the enforcement of a debt relating to the unpaid public parking ticket is a dispute relating to ‘civil and commercial matters’ within the meaning of the Brussels I bis and Service Regulations; secondly, whether the notaries in Croatia may themselves effect service (under the Service Regulation) of writs of execution drawn up on the basis of an ‘authentic document’ and thirdly, whether any of the special grounds of jurisdiction of the Brussels I bis Regulation confer jurisdiction on the courts of a Member State other than the domicile of the defendant.

As a consequence, the Opinion is not addressing the questions concerning, in particular, the law applicable under the Rome I and Rome II Regulations (Questions 8 and 9). It is yet to be seen how they will be answered in the judgment of the Court. It is worth noticing, however, that the facts underlying the case pending before the national courts predate the accession of Croatia to the EU.

 

Notion of ‘civil and commercial matters’

At points 39 to 54, a reminder of the case law leads AG Bobek to distinguishing two approaches adopted by the Court in order to establish whether the Regulations on ‘civil and commercial matters’ are applicable. He defines them as ‘subject matter’ and ‘legal relationship’ approaches (‘perspectives’).

Pronouncing himself in favour of ‘legal relationship’ approach at point 59, AG Bobek concludes that:

‘The concept of “civil and commercial matters”, as laid down in Article 1(1) of [the Brussels I bis Regulation] and Article 1(1) of [the Service Regulation], must be interpreted as requiring the legal relationship which characterises the underlying dispute, assessed against the framework generally applicable to private parties in such situations, not to be characterised by a unilateral exercise of public powers by one of the parties to the dispute.

While it falls to the national court to determine whether those conditions are satisfied, the circumstances of the present case do not appear subject to such an exercise of public powers.’

 

Service of writs of execution

At points 88 et seq., the Opinion addresses the question whether, under the Service Regulation, the notaries in Croatia may themselves effect service of writs of execution drawn up on the basis of an ‘authentic document’. At point 105, AG concludes:

‘[The Service Regulation] must be interpreted as meaning that, in order for a writ of execution based on an “authentic document” to qualify as a “judicial document” within the meaning of Article 1(1) of that regulation, the issuing entity must be a judicial body of a Member State forming part of its judicial system.

Articles 2 and 16 of [the Service Regulation] must be interpreted as meaning that, where a Member State has failed to designate notaries as “transmitting agencies” within the meaning of Article 2(1) of that regulation, those notaries cannot transmit “extrajudicial documents” for service to another Member State under the provisions of that regulation.’

 

Special grounds of jurisdiction

At points 106 et seq., the Opinion goes on to establish whether special grounds of jurisdiction of the Brussels I bis Regulation confer jurisdiction on the courts of a Member State other than the domicile of the defendant. Three possibilities are addressed within this part of the Opinion.

Firstly, at point 109, AG Bobek excludes the applicability of Article 7(2) of the Brussels I bis Regulation. He seems to argue, in essence, that the dispute pertaining to the unpaid public parking ticket is contractual in nature.

Next, at point 111, the applicability of the ground of exclusive jurisdiction provided for in Article 24(1) of the Regulation is excluded. Here, it is argued that ‘[o]n the basis of the facts present in the court file, there is no indication that either possession or other rights ‘in rem’ in the parking space were transferred to the defendant upon parking there (or that they are, in fact, at issue). Moreover, the article’s raison d’être militates against such an interpretation.’.

Finally, at point 112, the Opinion comes to the conclusion that Article 7(1) of the Brussels I bis Regulation is applicable and contends:

‘Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that parking a car in a designated parking space on a public road can, under the legal system of a Member State in which the issuing of parking tickets and the collection of parking fees is entrusted to a private entity, constitute a “matter relating to a contract”, as referred to in that provision.’

The Opinion can be consulted here. The request for a preliminary ruling is accessible here.