AMERICAN SOCIETY of INTERNATIONAL LAW - Comentaries On Private International Law Vol. 3 Issue 1 (2017)

Vol.
3, Issue 1
Fall 2017
COMMENTARIES
ON PRIVATE INTERNATIONAL LAW
THE PILIG NEWSLETTER
Notes from the Editor INSIDE THIS ISSUE
Notes from the Editor
W
e are pleased to present the third “public” or “private” nature of those 1
issue of Commentaries on Private conflicting regulations. Co-chairs Notes
International Law, the newsletter 4
of the American Society of International To achieve what is perhaps the first
Africa
Law (ASIL) Private International Law comprehensive global approach to PIL, 4
Interest Group (PILIG). As readers of the Commentaries includes five sections dealing
Asia
newsletter know, the name of our with regional issues, edited by specialists
11
newsletter, Commentaries, represents a on the field: Africa, edited by Richard
Frimpong Oppong and Justin Monsenepwo Americas
modest tribute to one of the founding 16
fathers of modern PIL, Joseph Story, by Joost; Asia, by Chi Chung, Yao-Ming Hsu
borrowing the name of his seminal book and Béligh Elbalti; the Americas by Cristian Europe
Giménez Corte and Jeannette Tramhel 27
“Commentaries on the Conflict of Laws,
foreign and domestic,” and only replacing (Central and South America), and Freddy Oceania
“Conflict of Laws” with “Private Sourgens and Mayra Cavazos Calvillo 34
International Law” to better reflect the (North America); Europe, by Massimo GLOBAL CONFLICT
broader object of our discipline today. Benedettelli, Marina Castellaneta, and OF LAWS
Antonio Leandro; and Oceania, by Jeanne 37
The primary purpose of our newsletter is to Huang. We would like to highlight the
communicate news on PIL. Accordingly, the efforts made by our global editorial team in
newsletter attempts to transmit translating, both linguistically and legally,
information on new developments on PIL into English and for a global audience Private International Law
rather than provide substantive analysis, information that was originally in Japanese, Interest Group
with a view to providing specific and Arabic, Portuguese, Spanish, Russian,
concise raw information that our readers Italian, French, German, Turkish, CO-CHAIRS
can then use in their daily work. These new Vietnamese, and Chinese. Freddy Sourgens
developments on PIL may include Kabir Duggal
information on new laws, rules and This third issue of Commentaries covers
regulations; new judicial and arbitral more countries and includes in greater
EDITOR
decisions; new treaties and conventions; detail recent developments in our field.
new scholarly work; new conferences; Each regional section includes a brief intro- Cristián Giménez Corte
proposed new pieces of legislation; and ductory note, and a special chapter
the like. devoted to new scholarly work, which is of
particular importance for those areas of
Commentaries aims to be a truly global the world where the dissemination of infor-
newsletter, by reporting news from all mation on PIL is more difficult. The main Commentaries on Private
major legal systems of the world, which developments covered by Commentaries International Law is the
newsletter of the ASIL
may have different conceptions of PIL. occurred during 2016, including only a few Private International Law
Thus, the PILIG newsletter is framed in a developments occurred in late 2015 and Interest Group. Any views
rather broad sense, comprising all types early 2017. expressed in this
publication are those of
of situations generating potential conflicts the authors and not those
of laws and/or jurisdictions, regardless of In this third issue, Commentaries continues of the American Society of
the “international” or “internal,” or to develop a section introduced last year. International Law.
—continued on page 2
Private International Law Interest Group Newsletter
Fall 2017
Editors’ Notes —continued from page 1

This section is called “Global Conflict legislations. In addition, Canada and Maintenance Convention. Noteworthy,
of Laws,” edited by Cristián Giménez the EU signed the Comprehensive the Turkish Constitutional Court
Corte and Javier Toniollo, presents new Economic and Trade Agreement decided on a leading international child
developments on PIL that are not nec- (CETA), still –unlike the TPP, the CETA abduction case, and the CJEU rendered
essarily linked to one particular region seems to better protect national public an important decision on the execution
or country in the world, but that are policies over transnational interest, and of maintenance obligations.
truly transnational or global. it establishes an investment official
court, instead of ad-hoc arbitral The second place in new developments
The comprehensive global approach to tribunals. In the same line, new on PIL is for commercial and
PIL provided by Commentaries, as it developments on the application of investment arbitration. In this regard,
reports new developments on PIL from supranational regulations are being Senegal adopted a new arbitration law,
all the five continents, allows witnessed by African countries parties and India passed a new Arbitration and
Commentaries to make apparent the to the Economic Community of Conciliation Act, while the parliaments
main current global trends in PIL. Western African States (ECOWAS). of Argentina, Australia, and New
Zealand have proposed amendments
Perhaps the most important global From a more traditional inter-national to their current laws on the matter. In
development on PIL during last year perspective, the role and importance of addition, the International Chamber of
was the crisis of supra-national law intergovernmental organization (IO) Commerce (ICC), and arbitral
and supranational institutions. The par- in the development of PIL is ever- institutions in Sweden and Australia
adigmatic symptom of this crisis sur- increasing, as demonstrated by the issued new arbitrations rules.
faced in the decision of the United work of the Organization of American Furthermore, the Netherlands,
Kingdom to leave the European Union, States (OAS), the Hague Conference, Switzerland, Canada, and Mauritius
better known as Brexit. Moreover, the UNCITRAL, UNIDROIT, the Organization ratified the Transparency in Treaty-
decision of the United States admin- for the Harmonization of Business Law based Investor-State Arbitration. Very
istration to stop the Trans-Pacific in the Caribbean (OHADAC), and the importantly, Phillips Morris lost two
Partnership (TPP) negotiations and to Organisation pour l'Harmonisationen Afrique important investment arbitrations
withdraw from the Paris Agreement du Droit des Affaires (OHADA). battles against Australia and Uruguay.
on climate change is another very
important indicator of this switch. This Family, as we all know, is an important The Olympic Games held in Rio de
crisis of supra-national law has been thing. This is shared by the Janeiro in 2016 has made clear the
preceded by the withdrawal by Bolivia international community as the newest close relations between PIL and the lex
(2007), Ecuador (2009), and Venezuela developments of PIL occurred in family sportiva, as case law from Fiji and the
(2012) from international organizations law. This includes new EU regulations Court of Arbitration for Sports (CAS)
such as the International Centre for on the property of international have shown.
Settlement of Investment Disputes couples, ratification of the Convention
(ICSID), and the more recent attempts- on the Protection of Adults by Latvia Regarding protection of assets, the
from South Africa, Burundi, and and Monaco; and the ratification of the EU passed a new Account Preservation
Gambia to leave the International Convention on Parental Responsibility Order procedure (EAPO), while and
Criminal Court (ICC). In the same vein, by Norway, Serbia, and Turkey. In the CCJA of the Organisation pour
recent decisions by the High Court of addition, Ghana and Kyrgyzstan l'Harmonisationen Afrique du Droit des
Ghana and the Supreme Court of acceded to the Convention on Inter- Affaires (OHADA) rendered a decision
Argentina refuse to enforce judgments country Adoption, and Mauritius and based on the Uniform Act on
from regional supranational courts. Congo passed new national legislation Simplified Debt Collection Procedures
on international adoption. In this same and Enforcement.
Yet, in a seemingly opposite direction, line, Bolivia, Pakistan and the
the bulk PIL codification in the EU is As the need for communications
Philippines acceded to the Child among countries continues to grow, so
produced through supra-national Abduction Convention, while Turkey acceded
regulations, but not through national to the Child Support and Family
2
Fall 2017
Editors’ Notes —continued from page 2

does international procedural law.The China seems to have changed its policy national law, and perhaps, more
EU passed a new a regulation on recognition of foreign judgments, as generally the feeble legitimacy of
simplifying the legalization of foreign in a recent a case a Chinese court international law as a whole.
documents. Morocco and Chile enforced a foreign judgment on the
acceded to the Apostille Convention, basis of reciprocity. Can PIL contribute, through its conflict
Vietnam acceded to the Service of law methodology, not only to the
Convention, and courts in Canada and In Latin America and the Caribbean, formal systematization but also to the
the US decided leading cases related to the Convention on Private International Law substantive legitimation of the rules of
servicing abroad. of 1928, best known as the a global system of law?
“Bustamante Code” seems to have
Relations between PIL and human revived, as the Bahamas has ratified it As our readers also know, in addition to
rights continue to get closer as case and Brazil courts are applying it. its global approach, Commentaries
law on the human right of access to attempts to present a comprehensive
justice and arbitration (EU), The CJEU, the Supreme Court of Brazil, view of PIL. Most blogs on international
international same sex couples (Italy), and a Federal Court of Australia law provide us with daily updates and
rights of refugees (Germany) decided controversial international news at a frenzied pace; while very
are indicating. consumer cases. useful, such an amount of information
is sometimes difficult to process.
The classical PIL issue on extra- Noteworthy, the Supreme Court of Commentaries intends its readers to
territorial jurisdiction and extra- Venezuela decided on questions of pause, catch their breath, take a step
territorial application of rules and conflicting nationalities and PIL, back, and enjoy a panoramic
regulations is being debated vividly. and in particular regarding the required perspective of PIL.
Recent UK and CJEU case law seems to nationality to run for public office of
favor the principle of president Maduro, in away echoing the Commentaries would not have been
extraterritoriality, while the USSC debate over the nationality of former possible without the tireless support of
delivers an opinion on the presumption US president Obama. the PILIG co-chairs, Freddy Sourgens
against the extraterritoriality doctrine. and Kabir Duggal, and the hard and
To sum up, after a long and smart work of the section editors
Important issues regarding the triumphant rise, which at a certain mentioned above. In addition, I would
immunity of foreign states and of moment seemed to be unstoppable, it like to express our gratitude for the
international organizations were seems that supra-national law is now comments, suggestions and help
addressed by different US courts. Of undergoing a deep crisis. Nation states provided by Sheila Ward, Matthew
particular relevance was the decision of are reconsidering the convenience of Gomez, and Mitsue Steiner. And I
a US court to uphold the United transferring sovereignty to would like also to express our gratitude
Nations immunities in the cholera supranational institutions and claiming to Adriana Chiuchquievich, Emilia
case, leaving thousands of victims it back. The world may be experiencing Gonzalez Cian y Martin Cammarata, for
without a remedy. a rebirth of the more classical inter- their assistance in the research and
national law, reflecting new horizontal edition of the new section “Global
There appears to be a new trend on cooperation policies among countries, Conflict of Laws.”
connecting PIL and the fight against rather than vertical impositions from
terrorism. A new US act narrows the above. Needless to say, this more We would appreciate receiving your
scope of foreign sovereign immunity in horizontal international cooperation suggestions, comments and critiques.
terrorism-related cases, a court in scheme would require more assistance We welcome your feedback and
Ontario enforces a US judgment from conflict of law rules. In any case, participation. Please send me an e-mail
against Iran on this matter, and a US why has supra-national law, somehow, at [email protected].
court decided in a case related to the failed? There are, for sure, many
Palestinian Authority and the Palestine causes, but a very important one is the
Liberation Organization based on the lack of democratic legitimacy of supra- Cristián Giménez Corte, Editor
lack of jurisdiction.
3
Fall 2017
Co-Chairs Notes AFRICA

—Editors Richard Frimpong Oppong &
W
e are very pleased to provide you with the third
edition of Commentaries on Private International Law, the Justin Monsenepwo Joost
newsletter of the American Society of International
Law’s Private International Law Interest Group.
As you will see from the following pages, our fantastic

editors have again compiled the best in breaking
developments in the world of private international law.
This newsletter comprises just one of the several activities

that PILIG has undertaken in the last year. The newest
innovation involves PILIG’s new webinar series. Webinars
may be viewed by audiences on a live-stream basis and or
through the ASIL video archives at https://www.asil.org/
resources/asil-event-videos.
During the last academic year PILIG hosted two successful

webinars. The first webinar addressed conflict of laws. It In 2016, there has been a vibrant development of private
took place on September 29, 2016. The webinar featured a international law (PIL) in the African French speaking
leading voice in conflict of laws scholarship, Dean Symeon countries. The increase of regional integration has led to an
C. Symeonides of Willamette University College of Law in intensification of cross-border transactions and, thus, to a
Salem, Oregon. Dean Symeonides spoke to PILIG members greater need for PIL rules. In the first place, it appears that
from NYU Law School. Dean Symeonides spoke to PILIG international arbitration continues to be a growing matter,
members on the topic of Choice of Law Codifications and as evidenced by the national regulations adopted by some
Conventions in the Last Fifty Years: What Can We Learn Member States of the Organization for the Harmonization of
From Them? The webinar addressed the adoption of nearly Business Law in Africa (OHADA), and the ongoing revision of
200 national codifications and international conventions in the OHADA Uniform Act on Arbitration Law of 11 March
the last fifty years. Dean Symeonides compared and 1999. One further highlight of PIL in African French Speaking
appraised the way in which these codifications resolve tort countries has been the entry into force of the Convention of
and contract conflicts, respond to some of the fundamental 5 October 1961 Abolishing the Requirement of Legalization
philosophical dilemmas of PIL, such as whether the choice- for Foreign Public Documents for the Kingdom of Morocco.
of-law process should aim for “conflicts justice” or “material
justice,” struggle to attain the optimum equilibrium between —continued on page 5
the perpetually-competing needs for legal certainty on the
one hand and flexibility on the other; and succumb to You can view the webinar at the following link: https://www.
ethnocentric protectionist urges, despite lofty youtube.com/watch?v=AwViei5c2Ms.
internationalist rhetoric. PILIG further again awarded a scholarship prize for
You can relive the webinar at the following link: https://www. scholarship written by junior authors. The committee
youtube.com/watch?v=HuLht1eAOb8. consisted of Lucas Lixinski (chair), Jacob Jorgensen and
Kabir Duggal. Ms. Roxana Banu from the University of
The second webinar addressed commercial law. The Toronto carried away the trophy for her work A Relational
webinar featured one the world’s leading experts in Feminist Approach to Private International Law. A link to the
transnational commercial law and commercial law winning entry can be found at the following link: http://
codification, Prof. Dr. Boris Kozolchyk. Prof. Dr. Boris repository.law.umich.edu/mjgl/vol24/iss1/1/. A summary of
Kozolchyk is the Founding Director & Director of Research this work is provided in this edition of the newsletter.
at the National Law Center for Inter-American Free Trade
and DeConcini Professor of Law at the James E. Rogers Freddy Sourgens and Kabir Duggal
College of Law at the University of Arizona. PILIG Co-Chairs
4
Fall 2017
Africa —continued from page 4 Djibouti deposited its instrument of accession to the 1907
Hague Convention for the Pacific Settlement of International
In addition, the Democratic Republic of the Congo, Ivory Disputes with the Ministry of Foreign Affairs of The
Coast, Tunisia, and Rwanda have passed new laws and Netherlands, the depositary of the Convention, on 17
regulations encompassing provisions related to private February 2016. It thereby became a Member State of the
international law issues, such as international adoption, PCA, effective 17 April 2016. Djibouti is the 119th Member
international investment, and cross-border insolvency. Last State of the PCA.
but not least, there were many conferences and publications The full text of the announcement may be found here:
on the development of international arbitration in the https://pca-cpa.org/en/news/new-pca-member-state-djibouti/.
OHADA region on the need for harmonized conflict of laws
rules in the OHADA region. Ghana accedes to the 1993 Hague Convention on
Intercountry Adoption
In turn, the PIL scene in African English speaking On 16 September 2016, Ghana deposited its instrument of
countries remained relatively quiet in 2016. There were no accession to the Hague Convention of 29 May 1993 on
major pieces of legislation dedicated to private international Protection of Children and Co-operation in Respect of
law issues and only a few academic papers on African PIL Intercountry Adoption and became the 98th Contracting
were published. A few African countries enhanced their State to the Convention. The Convention entered into force
engagement with The Hague Conference on Private for Ghana on 1 January 2017. It is the first Hague
International Law by becoming parties to the Conference’s Convention that Ghana has joined.
conventions. There was a study stream of decided cases on The full text of the announcement may be found here:
the subject, but none decided any controversial points of https://www.hcch.net/en/news-archive/
law. There were several significant cases decided or litigated details/?varevent=520.
in respect of gay rights. Although none of the cases raise a
private international law issue, the jurisprudence in these Hague Conference and Mauritius sign an agreement to
cases may ultimately prove persuasive in future cases with modernise intercountry adoption regime in line with the
conflict of laws dimensions. In the Botswana case of Attorney 1993 Hague Convention
General of Botswana v Thuto Rammoge, (Civil Appeal No CACGB- On 20 May 2016, the government of Mauritius and the
128-14, Court of Appeal of the Republic of Botswana, 2016) Permanent Bureau of the Hague Conference on Private
the refusal of the Minister to allow the registration of the International Law signed an agreement to assist Mauritius
organization, Lesbians, Gays and Bisexuals of Botswana, was with modernising its intercountry adoption regime in line
held to be unconstitutional as it infringed on the with the Hague Convention of 29 May 1993 on Protection of
respondent’s right to freedom of assembly and association. Children and Co-operation in Respect of Intercountry
Also, worth mentioning is a pending case in Kenya Adoption. Under the Agreement, an Expert will assist the
challenging the constitutionality of the country’s penal laws Attorney General’s Office with drafting a new intercountry
to the extent that they purport to criminalize private adoption law. They will also advise the Prime Minister’s
consensual sexual conduct between adult persons of the Office on an appropriate structure for a Central Authority,
same-sex. The court has certified the case as involving a and provide training on the 1993 Hague Convention to the
“substantial question of law” (Eric Gitari v Attorney General relevant authorities and bodies in Mauritius.
[2016] eKLR). A similar constitutional challenge is also The full text to the announcement may be found here:
pending in Malawi (The Republic v Mussa Chawisi, The Republic v https://www.hcch.net/en/news-archive/
Mathew Bello, The Republic v Amon Champyuni, Malawi High details/?varevent=487.
Court, 2016). Finally, in June 2016, Seychelles repealed the
anti-homosexuality provision in its Penal Code; see Penal The Apostille Convention enters into force for Morocco
Code (Amendment) Act, 2016 On 14 August 2016, the Hague Convention of 5 October
1961 Abolishing the Requirement of Legalisation for Foreign
Public Documents (Apostille Convention) entered into force
International Conventions for the Kingdom of Morocco. Morocco acceded to the
Apostille Convention on 27 November 2015, and became
Djibouti becomes a new Member of the Permanent Court of
Arbitration
5
Fall 2017
Africa —continued from page 5 National Legislation

the 110th Contracting State to the Convention. Ivory Coast implements the OHADA Uniform Act on Insolvency
The full text of the announcement may be found here: Law
https://www.hcch.net/en/news-archive/ By Decree No. 2016-48 of 10 February 2016, the Republic of
details/?varevent=513. Ivory Coast created the National Control Commission of
judicial representatives for the implementation of the
Swaziland accesses the Cape Town Convention Uniform Act on Insolvency Law of 10 April 1998 of the
On 17 November 2016, the Kingdom of Swaziland’s Organization for the Harmonization of Business Law in Africa
instrument of accession to the Convention on International (OHADA)
Interests in Mobile Equipment was deposited with The full text of the Decree is available here: http://www.
UNIDROIT. the Convention will enter into force only after the ohada.org/attachments/article/364/2016-48.pdf.
entry into force of a protocol.
Further details about the Convention are available at the Democratic Republic of the Congo: Revision of Act No. 87-010
http://www.unidroit.org/depositary-2001capetown-aircraft. of 1 August 1987 relating to Family Law
On 15 July 2016, the Democratic Republic of the Congo
Côte d'Ivoire Accedes to the Convention on the Limitation adopted Act No. 16-008 amending Act No. 87-010 of 1
Period in the International Sale of Goods August 1987 relating to Family Law. The new Family Law Act
Côte d'Ivoire has deposited its instrument of accession to the encompasses several provisions in respect of international
Convention, which entered into force for Côte d'Ivoire on 1 adoption: Article 651 sets out specific conditions for the
September 2016. The Convention, adopted on 12 June 1974, adoption of a Congolese child by a foreign national; further,
establishes uniform rules governing the period of time within Article 653b provides that the international adoption of a
which legal proceedings arising from an international sales Congolese child may be authorized only for the State with
contract must be initiated. The Convention was amended by which the Democratic Republic of the Congo is bound by an
a Protocol adopted in 1980 to harmonize it with the United international Convention on international adoption at the
Nations Convention on Contracts for the International Sale of time of the judicial decision. Moreover, Article 923bis
Goods (CISG). provides that the examination of new applications for all
For detailed information see http://www.uncitral.org/uncitral/ international adoptions is suspended until the establishment
en/about/press_releases.html. of the Office for Adoptions.
The full text of the new Act is available here: http://www.
Sierra Leona and the Democratic Republic of Congo Access leganet.cd/Legislation/Code%20de%20la%20famille/
the Convention on International Interests in Mobile Loi.15.07.2016.html.
Equipment and to the Protocol to the Convention on
International Interests in Mobile Equipment on Matters Rwanda: The National Bank regulates the activities of issuers
specific to Aircraft Equipment of electronic money
Sierra Leona and the Democratic Republic of Congo The Governor of the National Bank of Rwanda has enacted
instruments of accession to the Convention on International the Regulation No. 08/2016 of 1 December 2016 governing
Interests in Mobile Equipment and to the Protocol to the the activities of electronic money issuers. The Regulation
Convention on International Interests in Mobile Equipment includes provisions pertaining to the issue, the redemption,
on Matters specific to Aircraft Equipment were deposited and the transfer of electronic money. It is important to note
with UNIDROIT. The Convention and the Aircraft Protocol that Article 16 of the Regulation provides that electronic
entered into force for the Republic of Sierra Leone on 1 money issuers must exist as a limited company incorporated
November, and for the Democratic Republic of the Congo under Rwandan law. In case the electronic money issuer is a
on 1 September 2016. subsidiary of a foreign parent company, that subsidiary must
Further details about the Convention and Aircraft Protocol have an independent management, a board of directors, and
are available at the http://www.unidroit.org/depositary- a separate accounting system. Nevertheless, the foreign
2001capetown. parent company may still be represented in the board of
directors of the subsidiary. Furthermore, the financial
6
Fall 2017
Africa —continued from page 6 now combined with a guarantee of non-discrimination:

Under comparable conditions, a foreign investor will not be
accounts of the subsidiary may be included in the group's treated less favorably than a Tunisian investor. For instance,
consolidated financial accounts. the new Investment Law has removed the scheme of prior
The full text of the Regulation can be found here: http:// approval, which was only applicable to some foreign
juriafrique.com/blog/2016/12/01/rwanda-reglement-n- investors under the Former Investment Code. Moreover, the
082016-du-01-12-2016-regissant-les-emetteurs-de-monnaie- new Investment Law sets out that both Tunisian and foreign
electronique/. investors will benefit from the same protection as far as
possessory and intellectual property rights are concerned. It
Senegal: Adoption of internal laws relating to OHADA prohibits expropriation of an investor, unless it is in the
arbitration and insolvency law public interest and subject to fair and equitable
By Decree No. 2016-1192 of 3 August 2016, the Republic of compensation (although the text remains silent on the
Senegal designated the national courts having jurisdiction preliminary nature of this compensation). In addition, the
over matters related to the appointment and the new Investment Law provides foreign investors with some
disqualification of arbitrators, taking of interim measures, advantages, such as the free transfer of funds abroad and
examination of appeals against arbitral awards and the the possibility to recruit foreign management. In respect of
enforcement of awards for the operation of the OHADA the possibility to recruit foreign management, note that the
Uniform Act on Arbitration Law of 11 March 1999. The full former Investment Code had already granted the possibility
text of the Decree may be found here: http://www.ohada. to recruit four foreign managers for each business. Under
com/content/newsletters/3136/senegal-decret%20n-2016- the new Investment Law, any business may have 30% of its
1192-03-aout%202016.pdf. management staff composed of foreign managers during the
first three years of its incorporation or effective entry into
Moreover, by Decree No. 2016-570 of 26 April 26 2016, the operation, and 10% from the fourth year onwards, under
Republic of Senegal defined the status of judicial certain conditions.
representatives for the implementation of the OHADA The full text of the Tunisian new Investment Act is available
Uniform Act on Insolvency Law of 10 April 1998. More here: https://www.droit-afrique.com/uploads/Tunisie-Loi-
specifically, the Decree sets out rules in respect of the 2016-71-investissement.pdf.
access to and the exercise of the activity of judicial
representative. It also encompasses provisions regarding the
composition and the functioning of the regulatory body of
African Case Law
judicial representatives. This Decree is complemented by an
Inter-Ministerial Order of 31 May 2016 determining the rate
The OHADA Court of Justice and Arbitration
of remuneration of judicial representatives.
The full text of the Decree may be found here: http://www. Created by Article 3(2) of the Treaty on the
ohada.com/content/newsletters/3136/senegal-decret%20 Harmonization of Business Law in Africa signed in Port
n-2016-570-27-avril-2016.pdf. Louis on 17 October 1993 (hereinafter referred to as
the OHADA Treaty), the Common Court of Justice and
Tunisia: New Investment Act Arbitration (hereinafter referred to as CCJA) is the
In September 2016, the Tunisian legislature adopted Act supranational court of OHADA. It has four main
n°71-2016 of 30 September 2016 which aims to promote functions. First, it reviews the drafts of the Uniform
investments in Tunisia - especially foreign investments - by Acts. According to Articles 6 and 7 of the OHADA
enhancing both the freedom to invest and the investors' Treaty, the CCJA controls the consistency of the drafts
protection measures. The new Investment Act entered into of the Uniform Acts with the OHADA Treaty before the
force on 1 January 2017 and has repealed and replaced the Council of Ministers adopts them. Secondly, the CCJA
former Tunisian Investment Incentive Code ("Code d'Incitations also plays the role of an arbitration center. As such, it
aux Investissements”) enacted by Act n°93-120 of 27 December supervises the institutional arbitration pursuant to
1993. The new Investment Act reaffirms the principle of Articles 21 to 26 of the OHADA Treaty and the
freedom to invest in Tunisia (Article 4). This principle, which
was already enshrined in the Former Investment Code, is
7
Fall 2017
Africa —continued from page 7 OHADA Case Law

Common Court of Justice and Arbitration (CCJA) of OHADA:
Arbitration Rules of Procedure of the Common Court payment order under the Uniform Act on Simplified Debt
of Justice and Arbitration of 11 March 1999. The CCJA Collection Procedures and Enforcement Proceedings
does not in itself resolve the disputes. It appoints or In Samir Firzli and Soad Firzli v. Dagher Roland Habib and Dagher
confirms the arbitrators, is informed of the conduct of Roland Bechara, Mr. and Mrs. Firzli, domiciled in Libanon,
the proceedings, and reviews draft awards. Further, it requested before the Court of First Instance of Abidjan a
rules on the disputes which may arise with respect to payment order against Mr. Dagher Roland Habib and Mr.
the recognition and the execution of those awards. Dagher Roland Bechara, domiciled in Abidjan (Ivory Coast).
Thirdly, the CCJA may be consulted by any Member By order No. 339 of 29 February 2012, the Court ordered
State, the Council of Ministers, or any national court Dagher Roland Habib and Dagher Roland Bechara to pay to
for the interpretation and the uniform application of Mr. Samir Firzli and Mrs. Soad Firzli the amount due.
the OHADA Treaty, the Regulations, the Uniform Acts, However, on 5 December 2012, after Mr. Dagher opposed
and the Decisions of OHADA (Article 14(1) of the this judgment, the Court of First Instance of Abidjan
OHADA Treaty). Fourthly, the CCJA is also a court of rendered Judgment No. 2501 which declared the claim for
final appeal (Article 14(3) of the OHADA Treaty). As reimbursement of the spouses Firzli unfounded, considering
such, it rules on decisions in civil and commercial mat- that the procedure for the simplified recovery of debts
ters that are taken by appellate courts of the Member initiated pursuant to Article 1 of the Uniform Act on
States in all matters pertaining to the application of Simplified Debt Collection Procedures and Enforcement
the Uniform Acts and the Regulations of OHADA. Proceedings was not applicable to the claim for payment of
Judgments of the CCJA are directly enforceable in all the claim since there was a serious dispute over the claim.
Member States as if they were judgments of a national Upon appeal lodged by the spouses Firzli, the Court of
court (Article 20 of the OHADA Treaty). Appeal of Abidjan upheld the judgment of the First Instance
Uniform Acts are defined by Articles 1 and 5the Court of Abidjan under Appeal No. 625 / CIV 3A. On 1
OHADA Treaty as acts enacted for the adoption of December 2016, based on Articles 1 and 2 of the Uniform
harmonized rules in the OHADA Member States. They Act on Simplified Debt Collection Procedures and
are adopted by the OHADA Council of Ministers fol- Enforcement Proceedings, the CCJA overturned the
lowing a procedure set out in Articles 6 to 12 the judgment of the Court of Appeal of Abidjan, holding that the
OHADA Treaty. Under Article 10 of the OHADA Treaty, recovery of a claim that is certain, of a fixed amount and
Uniform Acts are directly applicable in all OHADA due, may be requested pursuant to the payment order
Member States. This means that Uniform Acts (i) apply procedure. Moreover, pursuant to Article 2 of the Uniform
immediately as legislative acts in all OHADA Member Act on Simplified Debt Collection Procedures and
States, without needing to be transposed into national Enforcement Proceedings, the CCJA reaffirmed that the
law for them to be effective; (ii) confer rights and obli- payment order may be granted when (i) the debt arises from
gations on individuals, and may therefore be invoked a contract, or (ii) the commitment results from the issuance
directly before national courts; (iii) override national or acceptance of any negotiable instrument, or a check with
law ninety days after their adoption by the Council of no funds or with insufficient funds. See in re Samir FIRZLI
Ministers. Litigation pertaining to elements of the and Soad Firzli v. Dagher Roland Habib and Dagher Roland Bechara,
Uniform Acts is settled in the first instance and on Reference 165/2016 of 1 December 2016 (Common Court of
appeal by the courts of the Member States. As of April Justice and Arbitration, 2016).
2017, there are nine uniform acts in force. These The full text of the judgment of the CCJA can be found here:
include acts regulating general commercial law, com- http://biblio.ohada.org/pmb/opac_css/doc_num.
mercial companies and economic interest groups, php?explnum_id=1983.
secured transactions, simplified debt collection proce-
dures and enforcement measures, insolvency, arbitra- Common Court of Justice and Arbitration (CCJA): lack of
tion, accounting, carriage of goods by road, and, most jurisdiction in respect of facts unrelated to OHADA law
recently, cooperative societies. In re Société de Tuyauterie Industrielle et Opérations dite S.T.I.O
8
Fall 2017
Africa —continued from page 8 High Court of Ghana Refuses Enforcement of a Judgment from
the Economic Community of West African States (ECOWAS)
SARL v. Mr. Alfred Domec, the CCJA held that it has no Court of Justice
jurisdiction to consider facts that are unrelated to the In the Matter of an Application to Enforce the Judgment of the
application of Uniform Acts or Regulations of OHADA. The Community Court of Justice of the ECOWAS against the Republic of
Société de Tuyauterie Industrielle et Opérations (SITO) SARL, Ghana and In the Matter of Chude Mba v The Republic of Ghana,
whose headquarter is located in Brazzaville (Republic of Suit No. HRCM/376/15 (High Court, Ghana, 2016) the High
Congo), filed an appeal with the CCJA against Judgment N° Court of Ghana rejected an application which sought an
002 folio 112 / C010 / 05 of 19 February 2013, claiming that order from the Court to enforce an $800,000 award (in
the Court of Appeal of Pointe-Noirehad violated Articles 132 damages) and 500,000 Naira (in costs) default judgment
and 134 of the Code of Civil Procedure and Articles 2044 obtained from the ECOWAS Court of Justice. The applicant
and 2015 of the Civil Code of the Republic of Congo. The had successfully sued the Government of Ghana for
CCJA held that such an appeal, made in breach of the violations of his fundamental human rights. The court
provisions of Article 28 of the Rules of Procedure of the rejected the application because, first, neither the Protocol
Common Court of Justice and Arbitration, was unrelated to of the ECOWAS Court nor the Treaty establishing ECOWAS
the application of the Uniform Acts and the Regulations. has been given the force of law in Ghana by the Parliament
Therefore, such an appeal fell outside the jurisdiction of the of Ghana exercising its powers under article 75(2) of the
CCJA. See in the matter Société de Tuyauterie Industrielle et Constitution of the Republic of Ghana, 1992. Second, the
Opérations dite S.T.I.O SARL v. Mr. Alfred Domec, Reference statutory regime for enforcing foreign judgments in Ghana
034/2016 of 29 February 2016 (Common Court of Justice operates on the bases of designation and reciprocity and
and Arbitration, 2016). The full text of the judgment can be the ECOWAS Court is not stated as one of the Courts to
found here: http://biblio.ohada.org/pmb/opac_css/doc_num. which the legislation applies. The court did not examine
php?explnum_id=1184. whether the judgment could be enforced at common law.
National Case Law Tunisian Cour de Cassation on the Indirect Jurisdiction of

Foreign Courts
Lagos High Court Refuses Enforcement of a Substantial After the adoption of new private international law rules in
Judgment of an English court 1998, it was not clear whether Tunisian courts, dealing with
In Accessbank Plc v Akingbola (2015) 5 CLRN 77-103, the bank the enforcement of foreign judgments, have to control inter
obtained a substantial judgment from the High Court of alia whether the foreign rendering court had jurisdiction or
England and Wales against the respondent and sought to not. The overwhelming majority of academic opinions have
register it at the Lagos High Court. The judgment debtor been in favor of a very liberal interpretation limiting the
challenged the jurisdiction of the Lagos State High Court to control of the jurisdiction of the foreign court to the only
register the judgment. The principal basis of the objection cases to which Tunisian courts claim exclusive jurisdiction as
was that the original cause of action in the English court provided for by Article 8 of the 1998 PIL Code. Accordingly,
related to breach of the judgment debtor’s duty in the in cases other than those which fall under the exclusive
unlawful purchase of shares as the director of a company – jurisdiction of Tunisian courts, the requirement of the review
a matter relating to the Company and Allied Matters Act, of the indirect jurisdiction of foreign courts is to be deemed
which was within the exclusive jurisdiction of the Federal abolished (for more details and critical analyses of the this
High Court of Nigeria. The court upheld the objection of opinion under Tunisian law, see Béligh Elbalti, The
the judgment creditor by holding that only the Federal High Jurisdiction of Foreign Courts and the Enforcement of their
Court could entertain claims relating to the enforcement of Judgments in Tunisia - A Need for Reconsideration, Journal of
the said English judgment and register it as a judgment of Private International Law, Vol.8 (2,) 2012, 195 s).
its own. This was because had the original cause of action With this respect, on January 20, 2016, the Tunisian Cour de
been litigated in Nigeria, only the Federal High Court would Cassation rendered a very important decision dealing with
have had exclusive jurisdiction to entertain the original issue of the review of the indirect jurisdiction of foreign
cause of action. courts in Tunisia. The case concerned an action on the
enforcement of a French Judgment rendered by the Paris
9
Fall 2017
Africa —continued from page 9 The minutes of the session are available here: http://
oroafrica.org/wp-content/uploads/2016/06/2016_Juin_
Court of Appeal ordering the judgment debtor to pay a Compte-rendu-du-Conseil-des-Ministres-de-lOHADA.pdf.
certain amount of money in a contractual dispute. The For more information, see http://www.ohada.com/
judgment debtor challenged the enforcement of the French actualite/3198/42e-session-du-conseil-des-ministres-de-l-
judgment on the ground that the French court lacked ohada.html.
international jurisdiction arguing that the dispute falls under
the exclusive jurisdiction of Tunisian courts. The court Cooperation Agreement Between OHADA and UNCITRAL
proceeded by examining the argument of the judgment On 26 October 2016, OHADA, the Organization for the
debtor. It held that cases over which Tunisian courts have Harmonization of Business Law in Africa, represented by its
exclusive jurisdiction according to Article 8 are limitative and Permanent Secretary, Professor Dorothé Cossi Sossa, and
that these cases do not include disputes in contractual UNCITRAL, the United Nations Commission on International
matters. It continued by explaining that disputes that do not Trade Law, represented by its Secretary General, Mr. Renaud
fall under the exclusive jurisdiction of Tunisian courts are Sorieul, signed a Cooperation Agreement in Brazzaville
cases subject to their concurrent jurisdiction according to (Republic of Congo). The ceremony was on the margins of
the ordinary rules of international jurisdiction. The court the 42nd session of the Council of Ministers of OHADA. The
concluded by stating that according to Article 11 PIL Code, Agreement aims to enhance cooperation on topics of
the exequatur shall not be granted to foreign judicial common interest and to promote the exchange of
decisions if inter alia the subject matter of the litigation falls information and carry out joint actions in view of stimulating
within the exclusive jurisdiction of Tunisian courts, which is international commercial transactions.
not the case of the action brought before it and considered For more information, see http://www.ohada.com/
that the lower court which admitted the exequatur petition actualite/3197/signature-d-un-accord-de-cooperation-entre-
correctly applied the law. l-ohada-et-l-onu.html.
For more information see Infosjuridiques No. 228/229
November 2016, p. 21 (in Arabic). ERSUMA: seminar on international secured transactions
within the OHADA region
On 5 December 2016, the Higher Regional School of
Associations and Events Magistracy (ERSUMA) of OHADA organized in Porto Novo a
seminar for judges, lawyers, notaries, court’s clerks and
41st Session of the Council of Ministers of OHADA bailiffs on the OHADA regulation in respect of international
From 16 to 17 June 2016, the Ministers of Justice and secured transactions. More specifically, the seminar
Finance of the seventeen OHADA Member States gathered examined the provisions of the revised Uniform Act on
in Brazzaville (Republic of Congo) for the 41st session of the Secured Transactions of 15 December 2010.
Council of Ministers of OHADA. The Council reviewed the For more information on the seminar, see: http://www.ohada.
normative work carried out during the previous year and com/actualite/3243/lancement-de-la-session-de-formation-
charted the course for future work. Some of the key sur-la-constitution-et-le-contentieux-des-suretes-dans-l-
decisions included the computerization of the management espace-ohada-ersuma-porto-novo-05-decembre-2016.html.
of the OHADA Trade and Personal Property Credit Register
(“Régistre du Commerce et du Crédit Mobilier”), the creation of Centre d'Arbitrage du GICAM (CAG)
national registers, and the continuation of the revision of On 1 December 2016, the Arbitration Center of GICAM
the following Uniform Acts: the Uniform Act on the (Centre d’Arbitrage du GICAM) organized a conference in
Organization and Harmonization of Companies Accounting Douala (Cameroun) on the subject: “International arbitration
in The States Parties to the Treaty on the Harmonization in and the jurisprudence of the OHADA Common Court of
Africa of Business Law, the Uniform Act on Arbitration law Arbitration and Justice”. The conference examined the case
and Commercial Mediation, and the Uniform Act On law of the Common Court of Justice and Arbitration in
Simplified Debt Collection Procedures And Enforcement respect of international arbitration in the OHADA region.
Proceedings. Further, the Permanent Secretary announced For more information see http://www.ohada.com/
the preparation of new Uniform Acts on Conflict of Laws, on actualite/3224/conference-sur-le-theme-la-jurisprudence-ccja-
the circulation of foreign public documents, on mediation, en-matiere-d-arbitrage-le-1er-decembre-2016-a-douala.html.
and on subcontracting agreements. —continued on page 11
10
Fall 2017
Africa —continued from page 10 ASIA —Editors: Béligh Elbalti,

Centre de Conciliation et d'Arbitrage du Mali (CECAM) Chi Chung & Yao-Ming Hsu
On 28 and 29 September 2016, the Conciliation and
Arbitration Center of Mali (Centre de Conciliation et
d'Arbitrage du Mali) organized in Bamako (Mali) a conference
on the subject : « Arbitration and national courts in the
OHADA region ».This conference analyzed the role of
national courts in international arbitration as organized by
the OHADA Uniform Act on Arbitration Law of 11 March
1999, and the cooperation between domestic jurisdictions
and arbitral courts in the OHADA region.
For more information see http://www.ohada.com/
actualite/3145/symposium-arbitrage-et-justice-etatique-dans-
l-espace-ohada-bamako-28-et-29-septembre-2016.html.
Association pour la Promotion de l'Arbitrage en Afrique

(APAA) Private International Law is developing fast in Asia. Last year
On 14 and 15 January 2016, the Association for the a record number of international treaties and conventions
Promotion of Arbitration in Africa (Association pour la on PIL have been ratified by various Asian countries, in par-
Promotion de l'Arbitrage en Afrique) held a colloquium in ticular numerous conventions developed under the auspices
Lomé on the subject: “The Cooperation between domestic of The Hague Conference on Private International Law on
jurisdictions and arbitral courts in the OHADA region”. children and family matters. At the national level, it worth
For more information see http://www.ohada.com/content/ mention the entering into force of the new Vietnamese Civil
newsletters/2990/rapport.pdf. Code, which includes important PIL provisions; and the
amendment of the Indian Arbitration and Conciliation Act.
Regarding case law, judicial decisions issued by the supreme
Scholarly Work —continued on page 12
The following publications examine interesting issues in
African private international law: Pontian N Okoli, Subject dans les Sociétés Commerciales, Sarrebruck, 2016 ; Emilia
Matter Jurisdiction: The Recognition and Enforcement of English Oneyma, The Transformation of Arbitration in Africa – The Role of
Judgments in Nigeria and the Need for a Universal Standpoint the Arbitral Institutions, Alphen aan den Rijn, 2016 ; Emmanuel
(2015-2016) 17 Yearbook of Private International Law 507- KAGISYE, Les conflits de normes dans l'espace OHADA, Paris,
525; Richard Frimpong Oppong The High Court of Ghana 2016 ; Justin Monsenepwo, Apport des Instruments de la
Declines to Enforce an ECOWAS Court Judgment (2017) 25 African Conférence de La Haye au droit des affaires dans l’espace OHADA
Journal of International and Comparative Law 127-132; (2016) 5 Junges Afrikazentrum 1-33 ; Etienne Alla Koffi, La
Samson Odetayo, A Critical Assessment of the Validity and preuve de la Loi Etrangère en Côte d’Ivoire (2016) 6 ERSUMA Law
Recognition of Same-Sex Marriage under the Nigerian Legal System Review273-304; Karel Osiris Coffi DOGUE & Valencia ILOKI
(2016) 24 African Journal of International and Comparative ENGAMBA, ‘Pratique de Conciliation en matière d’injonction de
Law 420-438; Marlene Wethmar-Lemmer, The Vienna Sale payer OHADA’(2016) 6 ERSUMA Law Review 30-326 ; Cédric
Convention and Party Autonomy – Article 6 Revisited 2016 Journal Carol Tsafack Djoumessi, ‘La confidentialité dans la procédure
of South African Law 255; Marlene Wethmar-Lemmer, arbitrale dans l’espace OHADA’ (2016) 6 ERSUMA Law
Applying the CISG via the Rules of Private International Law: Review591-598 ; Patrice Samuel A. Badji, ‘Les orientations du
Articles 1(1)(b) and 95 of the CISG – Analysing CISG Advisory législateur OHADA dans l’AUSCGIE révisé’ (2016) ERSUMA Law
Council Opinion 15 2016 (1) De Jure 58, Francis Lefebvre, Code Review 9-34 ; Véronique Carol Ngono, ‘Réflexions sur l’espace
pratique OHADA, Traité, actes uniformes et règlements annotés, judiciaire OHADA’ (2016) 6 ERSUMA Law Review 197-224 ;
Paris, 2016 ; Franck Nicéphore Yougoné, Arbitrage Commercial Nandjip Moneyang, ‘Scolie sur quelques points de formalisme de
International et Développement – Etude du Cas de l’OHADA et du l’exécution des décisions de justice non répressives en droit OHADA’
MERCOSUR, Paris, 2016 ; Dora Hélène Eboa, Le Capital Social (2016)ERSUMA Law Review 417-432. ■
11
Fall 2017
Asia —continued from page 11 of Intercountry Adoption Convention (Hague Adoption

Convention). The Convention entered into force for
courts of Turkey, Japan, Singapore, and the Philippines have Kyrgyzstan on 1 November 2016.
addressed key PIL issues, changing the established jurispru- For more information https://www.hcch.net/en/news-archive/
dence of the concerned countries. Remarkably, special inter- details/?varevent=512.
national commercial courts are starting to play an
increasingly important role in Dubai and Singapore. The Philippines accedes to the 1980 Child Abduction
Convention.
On 16 March 2016, the Philippines deposited its instrument
International Conventions of accession to the 1980 Child Abduction Convention. It
will become the 94th Contracting State to this Convention.
Pakistan accesses the 1980 Hague Child Abduction For more information see https://www.hcch.net/en/news-
Convention archive/details/?varevent=475.
On 22 December 2016, Pakistan deposited its instrument of
accession to the Hague Convention of 25 October 1980 on Viet Nam accesses the Hague Service Convention
the Civil Aspects of International Child Abduction, and thus On 16 March 2016, Viet Nam deposited its instrument of
became the 96th Contracting State to the Convention. The accession to the Convention of 15 November 1965 on the
Convention entered into force for Pakistan on 1 March Service Abroad of Judicial and Extrajudicial Documents in
2017. Civil or Commercial Matters (Service Convention), for which
For detailed information see https://www.hcch.net/en/news- it will become the 71st Contracting State.
archive/details/?varevent=532. For more information see https://www.hcch.net/en/news-
archive/details/?varevent=475.
Turkey ratifies the 1996 and 2007 Hague Conventions
On 7 October 2016, Turkey signed and deposited its Singapore ratifies The Hague 2005 Choice of
instruments of ratification to the Hague Convention of 19 Court Convention
October 1996 on Jurisdiction, Applicable Law, Recognition, On 2 June 2016, Singapore deposited the instrument of
Enforcement and Co-operation in Respect of Parental Responsibility ratification to the Convention of 30 June 2005 on Choice of Court
and Measures for the Protection of Children (1996 Child Agreements. The ratification of the 2005 Convention by
Protection Convention) and to the Hague Convention of 23 Singapore is a landmark. Singapore is the 30th State/REIO
November 2007 on the International Recovery of Child Support and (Regional Economic Integration Organization) that ratifies
Other Forms of Family Maintenance (2007 Child Support the Convention and the first Asian State to join the
Convention). Both Conventions entered into force for Convention. The Convention, which entered into force on 1
Turkey on 1 February 2017. October 2015, applies between Singapore and the other
For more details see https://www.hcch.net/en/news-archive/ Contracting States as from 1 October 2016.
details/?varevent=522. For more information https://www.hcch.net/en/news-archive/
details/?varevent=491.
Azerbaijan accedes to the UN Convention on Contracts for
the International Sale of Goods
On 5 September 2016, Azerbaijan acceded to the United National Legislation
Nations Convention on Contracts for the International Sale
New Conflicts rules in the new Vietnamese Civil Code
of Goods (CISG), and thus the country became the eighty-
entered into force
fifth State Party to the Convention. The Convention entered
On January 1, 2017 the new Civil Code passed by the
into force for Azerbaijan on 1 June 2017.
National Assembly of Vietnam on 24 November 2015
For more information see http://www.uncitral.org/uncitral/
effectively entered into force replacing the old Civil Code of
en/about/press_releases.html.
2005. The new Code contains conflicts of law rules on civil
relations involving foreign elements (Part V – Civil Relations
Kyrgyzstan accedes to the 1993 Hague Convention on
Involving Foreign Elements, Articles 663 et s.).
Intercountry Adoption
English translation of the new code is available at http://
On July 25, 2016 Kyrgyzstan accedded to the Convention
on the Protection of Children and Co-operation in Respect —continued on page 13
12
Fall 2017
Asia —continued from page 12 National Case Law

hethongphapluatvietnam.com/law-no-91-2015-qh13-dated- Japanese Supreme Court Rules on “The Special
november-24-2015-the-civil-code.html. Circumstances Theory” and Parallel Proceedings
For a commentary see: Tran Thi Thu Phuong, “Vietnam’s On March 10, 2016, the Japanese Supreme Court rendered a
New Law on the Right of Parties to Choose Applicable Law very important decision in which it gave some guidance
in Civil Relations involving Foreign Elements”, Journal of under which Japanese courts, although competent to hear a
Politics and Law, Vol. 9 (4), 2016 available at http://www. dispute, could decline jurisdiction on the basis of the
ccsenet.org/journal/index.php/jpl/article/view/58708. so-called “special circumstances theory.” According to this
theory as adopted by the Supreme Court decision of
Hong Kong signs agreement with the Mainland China on November 11, 1997 and codified in the new Article 3-9 Civil
mutual assistance in taking of evidence in civil and Procedure Code (CCP), Japanese courts may dismiss without
commercial matters prejudice the whole or a part of an action brought before
On December 29, 2016, an Agreement on mutual them when they find that there are special circumstances
assistance in taking evidence in civil and commercial that would impair the fairness and promptness of the
matters between the Hong Kong Special Administrative proceeding and equity between the parties.
Region (HKSAR) and the Mainland China, was signed. The For a comparison between the Japanese special
scope of assistance includes: examination of witnesses, circumstances theory and forum non conveniens as practiced
obtaining of documents and inspection, photographing, in common law jurisdictions, see Koji Takahashi, “The
preservation, and custody or seizure of property (Art.6). Jurisdiction of Japanese Courts in a Comparative Context”,
General expenses incurred in the execution of the Journal of Private International Law, vol. 11(1), 2015. 103 s.
requested matter by the requested party are to be borne by Provisional English translation of the decision is available at
the requested party. (art.9.1) The requested party should as http://www.courts.go.jp/app/hanrei_en/detail?id=1450.
far as practicable complete the requested matter within six
months from the date of receipt of the letter of request Chinese Court Enforces a Foreign Judgment on the Basis of
(art.10.1). Any problem arising from the implementation ofReciprocity
this Agreement or any amendment to be made to this Can Chinese courts recognize and enforce foreign judgments
Arrangement should be resolved through consultations in the absence of an international treaty on the basis of reci-
between the Supreme People’s Court and the HKSAR procity? Some scholars answer affirmatively (provided that it
Government. (art.11). is shown that the courts of the rendering state had already
recognized a Chinese judgment (See G Tu, Private International
The full text of the Arrangement is now available at: http://
www.doj.gov.hk/eng/topical/pdf/mainlandmutual4e.pdf. Law in China (Springer, 2016) 171). However, it was shown
that Chinese courts have never recognized foreign judgments
New Indian Arbitration and Conciliation Act on the ground of reciprocity in the absence of an interna-
The Indian Arbitration and Conciliation Act, 1996, which tional treaty. This has been the case even when it was shown
was based on the UNCITRAL Model Law, has been to the enforcing court that a Chinese judgment has been rec-
amended. The Arbitration and Conciliation (Amendment) ognized and enforced by the courts of the rendering state (B
Act, 2015 was promulgated by the President of India on Elbalti, “Reciprocity and the Recognition and Enforcement of
December 31, 2015, has proposed extensive changes to the Foreign Judgments – A lot of Bark but not much Bite”, Journal
Arbitration Act, in particular attempting at reducing the of Private International Law, 2017 (forthcoming)).
length of the arbitral process and intervention of state However, in an unprecedented reported decision rendered by
courts in it.. the end of the last year (December 9, 2016), the Nanjing
For the full text see of the law http://www.prsindia.org/ Intermediate People’s Court decided that a judgment ren-
uploads/media/Arbitration/Arbitration%20and%20 dered by a Singaporean court could be enforced in China
Conciliation%20bill,%202015.pdf based on the principle of reciprocity in the absence of an
For an analysis of the new law http://www.mondaq.com/ international treaty between the two countries. The case
india/x/494184/Arbitration+Dispute+Resolution/Critical+A concerned the enforcement of a judgment rendered by the
nalysis+Of+The+Arbitration+And+Conciliation+Amend Singapore High Court against a Chinese textile company. The
ment+Act+2015.
13
Fall 2017
Asia —continued from page 13 The case concerned the enforcement of an American
Judgment rendered by a Texan court ordering the judgment
judgment debtor challenged the enforcement of the debtor the payment of certain amount of money including
Singaporean judgment arguing that there were no bilateral interests and other legal fees. With regard the power
treaty between China and Singapore on the matter. However, acknowledged to Philippine courts to review the merits of
the court ruled that even in the absence of a treaty, the the case, the court quoting one of its precedents, recalled
Republic of Singapore has recognized in 2014 a Chinese that “If every judgment of a foreign court were reviewable on
judgment, and therefore, a judgment rendered by a the merits, the plaintiff would be forced back on his/her
Singaporean court which satisfies the conditions laid down original cause of action, rendering immaterial the previously
by Chinese law can be recognized and enforced in China, concluded litigation.” It continued by stating that “the for-
based on the principle of reciprocity. It should be noted that eign judgment or final order enjoys the disputable presump-
even the Nanjing Intermediate People court represents a very tion of validity. It is the party attacking the foreign judgment
important and positive move towards the recognition and or final order that is tasked with the burden of overcoming
enforcement of foreign judgments in China on the basis of its presumptive validity. A foreign judgment or final order
reciprocity. Still, such recognition and enforcement are never- may only be repelled on grounds external to its merits, par-
theless subjected to the restrictive condition of the existence ticularly, want of jurisdiction, want of notice to the party, col-
of a prior foreign precedent that shows that a Chinese judg- lusion, fraud, or clear mistake of law or fact.” The court
ment had been given effect by the courts of the rendering continues refuting the argument according to which the
state. Accordingly, following a traditional interpretation of the court has to look into the merit of the foreign judgment
reciprocity requirement in China, it would not be sufficient to because the foreign court has committed a clear mistake of
prove that Chinese judgments are likely to be recognized and law and fact. According to the court a “ Philippine court will
enforced in the rendering state. not substitute its own interpretation of any provision of the
For a summary report of judgment is available at https:// law or rules of procedure of another country, nor review and
asiatoday.com.au/content/chinese-court-recognises-singa- pronounce its own judgment on the sufficiency of evidence
pore-judgment-based-principle-reciprocity. presented before a competent court of another jurisdic-
tion. Any purported mistake petitioner attributes to the U.S.
Philippine Supreme Court on the Recognition of Foreign District Court … would merely constitute an error of judg-
Judgments ment in the exercise of its legitimate jurisdiction, which
It is not always clear whether foreign judgments can be rec- could have been corrected by a timely appeal before the
ognized in the Philippines without being reviewed on the U.S. Court of Appeals.” It is true that it is not always clear
merit. According to SEC. 48, Rule 39 (b) a judgment against how can the presumptive validity of foreign judgment can be
a person is a presumptive evidence of a right between the challenged before the Philippine courts on the basis of a
parties and that that “the judgment or final order may be clear mistake of law or fact without being reviewed as to
repelled by evidence of a want of jurisdiction, want of notice their merits. But still the directive of the court is clear as it
to the party, collusion, fraud, or clear mistake of law or fact encourages the enforcing courts to limit their control to the
(emphasis added).” The last part of this provision is particu- external aspects of the foreign judgment.
larly alarming since it suggests that foreign judgments can Text of the judgment is available at http://www.chanrobles.
be recognized in the Philippines only after being reviewed com/cralaw/2015marchdecisions.php?id=259.
on the merits (see Philsec Investment Corporation v. Court of
Appeals, G.R. No. 103493, June 19, 1997, 274 SCRA 102, 110, Turkish Constitutional Court decided on international child
where the Court declared that “in this jurisdiction, with abduction case
respect to actions in personam, as distinguished from actions The Turkish Constitutional Court examined, for the very first
in rem, a foreign judgment merely constitutes prima facie evi- time, an allegation of violation of rights protected by the
dence of the fairness of the claim of a party and, as such, is Turkish Constitution in the proceedings before the Turkish
subject to proof to the contrary”). However, in a recent deci- courts in relation to the 1980 Hague International Child
sion rendered in 2015 (Bank of the Philippine Islands Securities Abduction Convention. The Court decided by majority that
Corporation v. Edgardo V. Guevara, G.R. No. 167052, March 11, the applicant’s right to respect for family life, which is guar-
2015), the Supreme Court confirm a trend in the Philippine anteed under Art 20 of the Constitution, was violated.
case law that does not allow Philippine courts to delve into
the merits of a foreign judgment. —continued on page 15
14
Fall 2017
Asia —continued from page 14 Conference and Japan took place at the University of Tokyo
during which the role of the Hague Conference and its
For more information see http://conflictoflaws.net/2016/turk- Conventions as well as the Hague Conference’s Asia Pacific
ish-constitutional-court-on-international-child-abduction/ Regional Office was discussed. Finally, on June 29-30, an
and http://www.familylaw.co.uk/news_and_comment/.The- Asia Pacific Symposium on the 1980 Hague Convention
Turkish-Constitutional-Court-on-international-parental-child- took place at Waseda University during which problems in
abduction-judgment-of-Marcus-Frank-Cerny#.V_LeAYjhCM9. the operation of the 1980 Convention was analyzed and
addressed. The Symposium was attended by over 200
Singapore Court finds that the Laos-China BIT extends to participants, including judges, government officials, legal
Macao practitioners, academics and other experts from the Asia-
On September 29, 2016, the Court of Appeal of Singapore Pacific Region and other States.
determined in re Sanum Investments Limited v. Lao People’s For more information see https://www.hcch.net/en/news-
Democratic Republic that the bilateral investment treaty (BIT) archive/details/?varevent=505.
between China and Laos applies also to Macau, ruling that
Sanum Investments could invoke the BIT against Laos for CAPPIL Meeting on the Asian Principal of Private
its claim of capital investment benefit losses through unfair International Law – Doshisha University, Japan
taxes. The BIT did “not expressly state whether it would or From 12 to 14 December 2016, the Commission on Asian
would not in due course apply to Macau” when the treaty Principles of Private International Law (CAPPIL) held its
was signed back in 1993, and Macao became a territory of second meeting under the Chairman of Professor Naoshi
China only in 1999. The Court main line of reasoning was Takasugi (Secretary of the CAPPIL). Representatives of
that “because a treaty is binding in respect of the entire different Asian jurisdictions were present and discussed
territory of a State, the [Moving Treaty Frontier] Rule different issues relating to private international law.
presumptively provides for the automatic extension of a Discussions of the Commission during this meeting focused
treaty to a new territory as and when it becomes a part of on issues relating to civil and commercial matters, including
that State.” judicial support of international commercial arbitration;
For more information see https://www.asil.org/blogs/ recognition and enforcement of foreign judgments in civil
singapore-court-reinstates-award-against-laos-finding-laos- and commercial matters; jurisdiction in civil and commercial
china-bit-extends-macao-september. matters; conflict of laws in tort; conflicts of laws in contract
For an analysis see http://kluwerarbitrationblog. and general rules of private international law.
com/2016/11/11/sanum-v-laos-the-singapore-court-of-appeal-
affirms-tribunals-jurisdiction-under-the-prc-laos-bit-part-ii/.
Scholarly Work
Associations & Events Asian scholars have written excellent studies on PIL matters.
Among those, we would like to mention the following:
Hague Conference Asia Pacific Week 2016 in Tokyo-Japan Sai Ramani Garimella & Stenilla Jolly (ed.), Private
From 27 to 30 June 2016, the Hague Conference on Private International Law – South Asian States’ Practice, (Springer, 2017).
International Law organized with the assistance of the Guangjian Tu, Private International Law in China (Springer,
Ministry of Foreign Affairs of Japan, Waseda University, The 2016). Zheng Sophia Tang, Yongping Xiao & Zhengxin Huo,
University of Tokyo and Chuo University a number of Conflict of laws in the People’s Republic of China (Elgar Publishing,
conferences as part of the the HCCH Asia Pacific Week 2016). Alejandro Carballo Leyda (ed.), Asian Conflict of laws,
2016. On June 27, a Conference celebrating a decade of the East and South East Asia (Wolter Kluwer Law & Business,
2006 Hague Securities Convention took place at Chuo Law 2015). Cheng Minzhu, The Chinese Law on Conflict of Laws and
School. The conference, which commemorated the 10th Its Interpretation by the Supreme Court, in N. Nord, G. Cerqueira
anniversary of the convention’s promulgation, brought (eds.), International Sale of Goods - A Private International Law
together academics, lawyers, and stakeholders in the Comparative and Prospective Analysis of Sino- European Relations,
securities field to debate the pros and cons of accession to China-EU Law Series 5, Preface Claude Witz, Springer, 2017,
the Convention from international and Japanese pp. ix-xvi..
perspectives. On June, 28, a Seminar on the Hague
15
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Asia —continued from page 15 AMERICAS

Central, South America & Mexico
Conflict of laws within conflict of laws: the DIFC —Editors: Cristián Giménez Corte &
and the SICC Legal Systems
Jeannette Tramhel
The Dubai International Financial Center (DIFC) enjoys
a quasi autonomous legal regime within the sovereign
legal structure of the Emirate of Dubai, within the
United Arab Emirates. With the purpose of establish-
ing Dubai as a legal center for international dispute
settlements, the Emirate of Dubai granted the DIFC
its own laws and courts, which are different and sepa-
rated from those laws applicable to, and courts with
jurisdiction over the general public. The DIFC courts
have competence on civil and commercial matters,
are composed not only by Dubai judges but also by
foreign judges, including judges from UK, Australia
and Singapore. The Courts have jurisdiction to
enforce its own decisions “if the subject matter of the
execution falls within the Center,” but “if the subject
matter of execution falls “outside de Center,” a partic-
ular of exequatur procedure should be follow.
For more information see http://difccourts.ae/legal-
framework/.
In turn, the Singapore International Commercial Court Interest in Private International Law (PIL) continues to grow
(SICC) was established, as was the case of the DIFC, in the region, as evidenced by a number of events that have
to place Singapore as an international dispute settle- been held by individual associations this past year,
ment hub. The SICC is a formal division within the participation by states in international conventions, and
structure of the Singapore Supreme Court, it “has the discussions by the Inter-American Juridical Committee of the
jurisdiction to hear and try any action that is interna- Organization of American States on the future of PIL in the
tional and commercial in nature” submitted by parties Americas. Particularly noteworthy is renewed interest in the
to the SICC. The SICC offers parties to avoid common Bustamante Code as a result of a Brazilian court case, the
international arbitration problems including the “over- question of required nationality to run for public office in
formalisation of, delay in, and rising costs of arbitra- Venezuela, and new Principles for Electronic Warehouse
tion; concerns about the legitimacy of and ethical Receipts emerging from the OAS.
issues in arbitration; the lack of consistency of deci-
sions and absence of developed jurisprudence; and
the absence of appeals.” The SICC is composed of International Conventions
national and international judges, including judges
from UK, USA, Austria, France, Hong Kong and Japan. Bahamas Accedes to Bustamante Code
Interestingly the SICC rules permit that a “party may On 20 July 2016, the Commonwealth of the Bahamas issued
be represented by a Registered Foreign Lawyer in an a verbal note that, pursuant to article 6 of the Convention on
offshore case.” Private International Law of 1928, after six months it would
For more information see http://www.sicc.gov.sg/ deposit an instrument of accession. It did so on 23 January
Home.aspx 2017, albeit with reservations, and in accordance with
articles 4 and 6, the Convention came into force for The
Bahamas within 30 days.
16
Fall 2017
AMERICAS: Central, South America & the electronic Apostille Program (e-APP). Chile and Colombia
have implemented both an e-Apostille and e-Register; Brazil,
Mexico —continued from page 16 which had acceded to the Apostille Convention in 2015, is now
among those states that have implemented an e-Register,
For more information see: http://www.oas.org/en/sla/dil/
which include Costa Rica, the Dominican Republic, Mexico,
newsletter_%20Inter-American_Treaties_Bustamante_Code_
Nicaragua, Paraguay, Peru and Uruguay).
Bahamas_Jan-2017.html.
This Convention was adopted by the sixth Pan-American UNASUR Centre for the Settlement of Investment
Congress held in Havana, Cuba in 1928. It is better known Disputes
as the “Bustamante Code”, in honor of the Cuban jurist
Antonio Sánchez de Bustamante y Sirven, a Judge of the The member states of the Union of South American
Permanent Court of International Justice (1922–1944), who Nations (UNASUR), an intergovernmental regional
was the lead negotiator and whose ideas directly influenced organization comprising all 12 South American coun-
the content of the Code, which unifies into a single corpus tries, are making progress towards establishment of a
the law ona wide range of PIL matters (including civil, Centre for the Settlement of Investment Disputes. The
commercial, criminal and proceduralmatters). Center would handle settlement of disputes between
For an extensive analysis of the Bustamante Code investors and UNASUR member states. Although this
see:Samtleben, Jurgen; Derecho Internacional Privado en could be seen to fragment the international standards
América Latina. Teoría y Practica del Código de Bustamante, set out under the ICSID Convention, it may enhance
vol. I, Parte General, translated from German by Carlos the legitimacy of these kinds of transnational arbitra-
Bueno-Guzman, Depalma, Buenos Aires, 1983. tion procedures, in particular in a region where three
countries (Venezuela, Ecuador and Bolivia) have with-
Bolivia Accedes to the Hague Convention on Child Abduction drawn from the ICSID Convention and Brazil has still
On 13 July 2016, Bolivia deposited an instrument of not ratified it.
accession to the Hague Convention of 25 October 1980 on the For more information see https://www.iisd.org/
Civil Aspects of International Child Abduction. The Convention itn/2016/08/10/unasur-centre-for-the-settlement-of-
entered into force for Bolivia on 1 October 2016. This investment-disputes-comments-on-the-draft-constitu-
multilateral instrument protects children from the harmful tive-agreement-katia-fach-gomez-catharine-titi/.
effects of abduction and retention across international
boundaries by providing a procedure to bring about their
prompt return.
For more information see: https://www.hcch.net/en/news- International Decisions
archive/details/?varevent=506. ICSID: Philip Morris vs Uruguay
In an 8 July 2016 decision, an ICSID Tribunal rejected allega-
Chile Accedes to Apostille Convention tions by Philip Morris that through several measures regulat-
On 16 December 2015, Chile deposited its instrument of ing the tobacco industry Uruguay had violated the bilateral
accession to the Hague Convention of 5 October 1961 Abolishing investment treaty (BIT) between Switzerland and Uruguay.
the Requirement of Legalisation for Foreign Public Documents (the The Tribunal found that the regulatory measures were based
"Apostille Convention"), which entered into force for Chile on on the Framework Tobacco Control Convention and on the
30 August 2016. human right to health. Moreover, to determine whether
For more information see: https://www.hcch.net/en/news- Uruguay regulatory powers constituted a kind of indirect
archive/details/?varevent=455. expropriation, “…the control measures must be taken bona
fide for the purpose of protecting the public welfare, must be
To avoid delays and costs associated with legalization of non-discriminatory and proportionate” and in the Tribunal’s
public documents for use abroad, under the Apostille view, the regulations satisfied these conditions’. For these
Convention Contracting States have reduced the reasons, not only was the claim dismissed, Philip Morris was
authentication process to a single formality, namely, issuance required to pay the Respondent’s costs.
of a certificate of authentication (apostille) by a competent
local authority. This process has been further advanced by
17
Fall 2017
AMERICAS: Central, South America & consumer – supplier case, as the case was internal, rather
than international in nature. Although at time of the claim
Mexico —continued from page 17
the consumer was domiciled in Brazil, at the moment the
contract had been concluded in Portugal, both parties were
For full text of thedecisionsee:https://medios.presidencia.
domiciled in Portugal. Thus, the Court concluded that “there
gub.uy/tav_portal/2016/noticias/NO_U130/award_eng1.pdf
was no intention in the mind of neither the consumer nor
. the supplier to establish a relationship that goes beyond
National Case Law national boundaries.”
For more information see: https://cartasblogatorias.
Brazil: Appellate Decision Revives Interest in Bustamante com/2016/06/29/brasil-la-desproteccion-internacional-del-
Code consumidor-comentarios-al-recurso-especial-no-1-571-616-
A decision by the Court of Appeals of São Paulo resulted in mt-5-abril-20161/.
priority for an unsecured creditor for a $27M claim over a For full text of the decision see: [include link]
$500M ship mortgage against a vessel registered in Liberia
but operating within the Brazilian Exclusive Economic Zone. Venezuela: Supreme Court decides questions of Venezuelan
The Court found that in order for a foreign ship mortgage to Nationality
be valid in the absence of registration in Brazil, there had to On 27 April 2016, the Constitutional Chamber of the
be an international treaty between Brazil and the foreign Supreme Court of Justice addressed a classical PIL problem
state, in which respect the Court made reference to: (1) the related to applicable law and jurisdiction over a person
International Convention for the Unification of Certain Rules of Law holding multiple nationalities when it is precisely this very
Relating to Maritime Liens and Mortgages (Brussels, 1926) and (2) connecting factor, i.e. nationality, which is relevant for the
the Bustamante Code (Havana, 1928) (see above). As Liberia determination of the applicable law. The Court found that, in
was not party to either treaty, the principle could not be accordance with article 335 of the Constitution of
applied. As to the argument that under customary Venezuela, when a person holds multiple nationalities one of
international law a ship mortgage is governed by the law of which is Venezuelan, the Venezuelan nationality shall prevail.
the flag and deemed valid and enforceable wherever the For more information see: https://cartasblogatorias.
vessel is located, the Court was not satisfied that such com/2016/05/30/venezuela-nacionalidad-multiple-la-
custom had been evidenced. As to choice of law arguments resolucion-los-conflictos-nacionalidades/.
applicable to a moveable asset, the Court found that as the
vessel had been installed as a platform intended to be Later, in October 2016, the same Chamber addressed a
operational for 20 years, application of lex situs would be related issue regarding the nationality of President Nicolas
more appropriate. The case is under appeal and is worth Maduro; it established that the President is exclusively
following for its implications for PIL and secured lending inVenezuelan, does not have any other nationality, and
the international shipping industry. therefore completely fulfills the requirements of article e 277
of the Constitution. However, the Chamber also found that
See “The FPSO OSX-3 Case”; Nordic Trustee ASA v. Banco BTG in a hypothetical case, if a person holding two nationalities
Pactual S/A, São Paulo State Appellate Court, 1 June 2016. were to run for public office, that person must withdraw the
For full text of the decisions see: non-Venezuelan nationality to meet those requirements.
https://esaj.tjsp.jus.br/cposg/search.do;jsessionid=EBD0B48 For more information see: https://cartasblogatorias.
CC9DC7FABBFFB7F9E95BC4148.cposg10?conversationId=& com/2016/05/30/venezuela-nacionalidad-multiple-la-
paginaConsulta=1&localPesquisa.cdLocal=-1&cbPesquisa= resolucion-los-conflictos-nacionalidades, For full text of the
NUMPROC&tipoNuProcesso=UNIFICADO&numeroDigitoAn decision see: http://www.tsj.gov.ve/.
oUnificado=2153991-40.2015&foroNumeroUnificado=0000
&dePesquisaNuUnificado=2153991-40.2015.8.26.0000&deP Argentina: Appeals Court finds ICSID Award does not
esquisa=&uuidCaptcha. require exequatur proceedings
On 18 August 2015, an Appeals Court found that an ICSID
Brazil: Superior Court finds - not an ‘international’ arbitral award issued in favor of a foreign nation state (in the
Consumer Case instant case, Peru) against an Argentinean investor, does not
On 5 April 2016, the Superior Court of Justice determined
that a lower Brazilian court lacked jurisdiction to decide a —continued on page 19
18
Fall 2017
AMERICAS: Central, South America & Products, which recognize warehouse receipt financing as a
way to address the lack of access to credit in the agricultural
Mexico —continued from page 18
sector. In this form of asset-based lending, the stored
(“warehoused”) products are used as collateral, which
require exequatur proceedings established by the national law
increases lender confidence in loan recovery and gives
of the place where execution of the award is sought; the
producers greater flexibility to delay sale until prices are
ICSID award need only have met the requirements set out in
more favorable, rather than immediately upon harvest.
the ICSID Convention.
For the full text of the report and principles see:
For full text of the decision see: http://fallos.diprargentina.
http://www.oas.org/en/sla/iajc/docs/CJI-doc_505-16_rev2.pdf.
com/2016/06/cci-compania-de-concesiones-de_28.html.
Mexico: Court Reflects on Conflict of Law Rules Associations & Events

A Mexican Court decision of September 2015 may impact
conflict of laws theory and practice. During the course of OAS: On 4 April 2016 during its 88th regular session, the
deliberations over applicable law in a request to annul a IAJC held a conversation with PIL experts in Washington,
foreign marriage, the Court reflected that when a legal D.C. on “The Future of PIL in the Americas: The Path
relationship contains elements that are linked to different Forward for the OAS, the CIDIP Process and the Role of the
legal systems, the role of conflict of laws rules is to ensure IAJC.” During its next session in Rio de Janeiro, the IAJC,
that the case is resolved on the basis of a single legal together with the American Association of Private
system so as to ensure legal certainty for the parties. The International Law (ASADIP) and the University of the State of
court also alluded to the sources of conflict of laws rules as Rio de Janeiro (UERJ) organized a meeting at the UERJ Law
either international, supranational or domestic and that School to continue the dialogue. PIL topics currently under
within this hierarchy, in the absence of an international rule, consideration by the IAJC include the law applicable to
"it is an internal law that is projected to international international contracts and online settlements of disputes in
situations." The Court noted that most PIL rules have been cross-border consumer transactions.
included in the civil codes of states and then proceeded to
apply those rules of the local state (Jalisco). Organization for Harmonization of Business Law in the
For more information see: https://cartasblogatorias. Caribbean (OHADAC): On 6 May 2016, the implementing
com/2016/08/15/mexico-normas-conflicto-jalisco- association for the OHADAC Project concluded an
matrimonio-celebrado-extranjero/. Agreement of Cooperation with the Caribbean Court of
Justice. Under the Agreement, both institutions will
cooperate towards achieving the implementation of a
Soft Law harmonized business law framework in the Caribbean.
For more information see:
Organization of American States (OAS)
http://www.ohadac.com/actualite/180/acp-legal-signs-an-
OAS: During its 89th regular session, the Inter-American agreement-of-cooperation-with-the-caribbean-court-of-
Juridical Committee (IAJC) adopted a resolution on justice.html.
International Protection of Consumers. The resolution
recognizes the need for consumer protection in cross- American Association of Private International Law (ASADIP)
border dealing, including access to dispute resolution, and held its 10th Conference 10-11 November in Buenos Aires,
the importance of preserving the ability of sellers and Argentina, with a focus on "International Contracts." The
suppliers to compete in the marketplace so as to provide a 11th Conference will take place 9-10 November in Bogota,
wide range of products and services that comply with health Colombia to consider “Corporations.”
and safety standards. For more information see: http://www.asadip.org/v2/.
For the full text of the resolution see:
http://www.oas.org/en/sla/iajc/docs/CJI-RES_227_ Chilean Association of Private International Law (ADIPRI)
LXXXIX-O-16.pdf. held its 3rdConference on 24November in Santiago, Chile.
The conference theme was “New Challenges for Chilean
OAS: During that same session the IAJC also approved Private International Law in a Globalizing World.”
Principles for Electronic Warehouse Receipts for Agricultural
19
Fall 2017
AMERICAS: Central, South America & North America

Mexico —continued from page 19 —Editors: Frédéric Gilles Sourgens &
For more information see: https://www.facebook.com/ Mayra Cavazos Calvillo
ADIPRIChile/.
Mexican Academy of Private International and

Comparative Law (AMEDIP) held its 39th Seminar 18-19
October in Mexico City. Several round table discussions
were held on selected topics in international arbitration,
alternative dispute resolution, and international family law.
For more information see:
http://www.amedip.org/convocatoria/2016/programa_2016_
seminario_amedip.pdf.
Scholarly Work
Several Latin-American scholars have published insightful
studies on PIL during 2016, only a few of which can be
mentioned here:
Soto, A., Temas Estructurales del Derecho Internacional Private International Law developments in North America
Privado, 3era ed., Editorial Estudio. hang under a cloud of uncertainty. With the election and
OEA-ASADIP: Contratos Internacionales. Ed. Diego P. inauguration of Donald J. Trump as President of the United
Fernández Arroyo and José Antonio Moreno Rodríguez States, United States foreign policy and treaty practice may
(2016). be at a turning point. Most centrally to this development,
the Trump administration at one point worked on a leaked
Filartiga, Ivan, El Principio Competence-Competence; Análisis executive order requiring a moratorium on multilateral
Comparativo y su Aplicación en la Legislación de Arbitraje treaties and a further review of multilateral treaties to which
Paraguaya, (August 29, 2016). SSRN: https://ssrn.com/ the U.S. currently is a party. Although this multilateral treaty
abstract=2831780 or http://dx.doi.org/10.2139/ executive order would have exempted a review of trade
ssrn.2831780. treaties, many treaties within private international law would
have been included within its purview. At the time of this
Landero, C., Recepción de las resoluciones de los tribunales writing, the executive order in question appears to have
arbitrales ad hoc del artículo 1904 del TLCAN en la práctica been withdrawn. Further, after approximately 100 days of
jurídica interna de México (segunda parte), Boletín Mexicano de the Trump presidency, it appears that the U.S. has resumed
Derecho Comparado nueva serie, año XLIX, núm. 146, a more orthodox course regarding private international law.
mayo-agosto de 2016, pp. 85-118. Nevertheless, there is great uncertainty as to future
legislative and treaty developments in North America as a
result of the current political situation in the United States.
For the leaked executive order on treaties, see:
https://apps.washingtonpost.com/g/documents/world/read-
the-trump-administrations-draft-of-the-executive-order-on-
treaties/2307/.
For statement of US private international law treaties
awaiting ratification, see: https://www.state.gov/s/l/c62265.
htm.
20
Fall 2017
2016 PILIG Prize A Relational Feminist Approach

to Private International Law
By Roxana Banu, SJD
A Relational Feminist Approach to Private Relatedly, relational feminists
International Law forges an initial yet understand both the importance and
long overdue interdisciplinary the potential oppressiveness of
conversation between feminism – individuals’ embeddednes in a web
especially relational feminism – and of relationships. This allows them to
private international law. In this paper acknowledge that individuals may
I make two interrelated arguments. sometimes plead for the recognition
and preservation of their
First, I argue that relational feminism embeddedness within various
can break the constant oscillation in relationships and sometimes for
private international law theory ways to reconstruct or escape
between state-centric and oppressive relationships. Relational
individualistic perspectives and perspectives, as well as to revisit and feminists would interpret individuals’
provide an alternative, relational partly reconstruct its own variations claims in private international law in
theory of the self, autonomy, and of the relational transnational agent. terms of appeals to recognize,
law. In turn, this would create an I recover this lost “relational transcend or restructure various
important shift in private internationalist” intellectual tradition types of relationships in the
international law’s regulatory in private international law’s transnational realm.
function by centering it on the nineteenth century history in my
patterns of relationships private book, From Conflicts of Sovereignty to Lastly, because the focus on
international law structures in the Relationships: Recovering Nineteenth relationality complicates both the
transnational realm. I outline the Century Relational Internationalist notion of the self, as well as any
important theoretical and Perspectives in Private International Law, notion of responsibility, relational
methodological input that relational forthcoming in 2018 with Oxford feminists openly acknowledge the
feminism could bring into private University Press. fluidity and uncertainty of the
international law, especially in the relational analytical method. Yet they
analysis of transnational surrogacy A Relational Feminist Approach to Private resist a return to formalism or to an
arrangements, in A Relational Feminist International Law focuses on three alleged neutrality of judicial
Approach to Conflict of Laws, contributions relational feminism determinations. Instead, relational
forthcoming in vol. 46 of the could bring to private international feminists would encourage judicial
Michigan Journal of Gender and Law. law. First, relational feminism self-consciousness about the
captures feminists’ ambivalent uncertainty and contested nature of
Second, as opposed to simply rejection of liberalism, hosting both the values that, directly or indirectly,
substituting a new account of the the aspiration for individual inform legal determinations in private
self from outside private empowerment and autonomy and international law. More importantly,
international law, I show that a the rejection of individualistic relational feminism encourages an
feminist account can build on notions of rights. Relational feminism open acknowledgment and
images of a ‘relational individual’ therefore invites skepticism of both discussion about the links that
that once existed in private individualism and state-centrism in private international law norms and
international law thought. Relational private international law. decisions inevitably create between
feminism allows private international law, relations, and values in the
law to excavate these lost theoretical transnational realm.
21
Fall 2017
AMERICAS: North America —continued from page 20 rules for certain rights in respect of intermediary-held
investment securities. In light of growing cross-border
transactions in such securities, questions regarding
International Conventions applicable law had significant practical importance. By
United States withdraws from Transpacific Partnership harmonizing conflicts of law rules, the Convention aspires to
The United States on January 23, 2017 has withdrawn from address areas of potential practical uncertainty.
the Transpacific Partnership (TPP). TPP is of significance for For the full text of the Convention, see: https://www.hcch.
the entire North American region, as the United States, net/en/instruments/conventions/full-text/?cid=72.
Mexico, and Canada were all original members. The For US announcement of ratification and discussion, see:
withdrawal of the United States has serious repercussions https://www.state.gov/s/l/c62265.htm.
for the future viability of TPP. Deprived of its previously
leading international proponent, it is likely that further Hague Child Support Convention (US)
negotiations will be necessary to achieve similar results. The The U.S. deposited its instrument of ratification of the
United States will of necessity be one of the leading states Hague Child Support Convention on August 30, 2016. In
needing to incorporate TPP goals by other means. Other light of this date of ratification by the U.S., the Convention
states will need to determine whether or not existing entered into force for the U.S. on January 1, 2017. The
commitments made in TPP will continue to be viable without Convention supplements existing law established by the
US participation. Convention on International Recovery of Child Support and
As noted in volume 2, issue 2, page 27 of the Commentaries Other Forms of Family Maintenance with procedures to
there are a number provisions in the TPP that directly streamline international child support disputes.
address PIL issues including: investor-state dispute For the full text of the Convention, see:
settlement, arbitration, and choice of laws. https://www.hcch.net/en/instruments/conventions/full-
For the notice of withdrawal, see: https://www.whitehouse. text/?cid=131.
gov/the-press-office/2017/01/23/presidential-memorandum- For the US announcement of ratification and discussion,
regarding-withdrawal-united-states-trans-pacific. see: https://www.state.gov/s/l/c62265.htm.
The Potential Renegotiation of NAFTA Canada ratified the United Nations Convention on
During his presidential campaign, President Trump Transparency in Treaty-based Investor-State Arbitration
announced his intent to renegotiate NAFTA. The stated On 12 December 2016, Canada ratified the United Nations
purpose of renegotiation was to limit imports into the Convention on Transparency in Treaty-based Investor-State
United States from Mexico, particularly in the manufacturing Arbitration. Canada is the second State to ratify the
sector. The stated intent to renegotiate NAFTA led to Convention, following the ratification by Mauritius on 5
significant uncertainty in the North American economy. At June 2015.
the time of this writing, it is unclear what position the United For further information see: https://www.canada.ca/en/news/
States, Mexico, and Canada respectively will take in archive/2015/03/canada-signs-united-nations-convention-
negotiations and what provisions of NAFTA will be affected. transparency-investor-state-arbitration.html
This, too, leads to an uncertain outlook for the development
of private international law in North America.
For the most recent statement of President Trump on
National Legislation
NAFTA, see: http://www.freep.com/story/news/ U.S. Congress passed the Justice Against Sponsors of
politics/2017/04/18/donald-trump-nafta/100614752/. Terrorism Act narrowing the scope of foreign sovereign
immunity.
Hague Securities Convention (US) On September 28, 2016, Congress voted to override
The U.S. deposited its instrument of ratification of the 2006 Obama’s veto of the Justice Against Sponsors of Terrorism
Convention on the Law Applicable to Certain Rights in Act (JASTA). JASTA amends the federal judicial code to
Respect of Securities held with an Intermediary on narrow the scope of foreign sovereign immunity. JASTA
December 15, 2016. In light of this date of ratification by authorizes federal courts to exercise personal jurisdiction
the U.S., the Convention entered into force for the U.S. on over any foreign state’s support for acts of international
April 1, 2017. The Convention harmonizes conflict of laws
22
Fall 2017
AMERICAS: North America —continued from page 22 Canada: Court of Appeals for Ontario establishes foreign
service under Rules of Civil Procedure for Non-Hague
terrorism against a U.S national or property. JASTA gives Convention service
federal courts jurisdiction over a civil claim against a foreign On June 3, 2016, the Court of Appeals for Ontario ruled that
state for physical injury, property or death, occurring outside service of process consistent with Canadian Rules of Civil
the U.S. territory, either as a result of an international act of Procedure on a Guatemalan defendant was proper. The
terrorism or by a tort committed by an agent of a foreign party resisting service of process submitted that following
state within the scope of their employment. Canadian service rules for service of process in Guatemala
The full text of the bill may be found here: https://www. violated Guatamalan sovereignty and therefore should not
congress.gov/bill/114th-congress/senate-bill/2040/text be given effect in Canadian courts. The Court of Appeals for
Ontario rejected the argument, noting that “The Rules do
not purport to legalize service that would be illegal in
National Case Law Guatemala, nor do they purport to declare Ontario is the
proper forum for an action. They provide an option as to
Canadian Supreme Court allows courts to sit
how service may be effected in a non-Convention state for
extraterritorially
purposes of an Ontario action. They establish a means of
On October 20, 2016, in the case Endean v British Columbia,
satisfying an Ontario court that foreign defendants have
the Canadian Supreme Court held that: “In pan-national
received notice of an Ontario action. As the motion judge
[Canadian] class action proceedings over which the superior
noted, the appellants retain their right to challenge the
court has subject-matter and personal jurisdiction, a judge
jurisdiction of Ontario’s courts over the subject-matter of
of that court has the discretion to hold a hearing outside his
the action.” The Supreme Court of Canada did not permit
or her territory in conjunction with other judges managing
further appeal on February 23, 2017.
related class actions, provided that the judge will not have
For the full text of the decisions, see: https://www.canlii.org/
to resort to the court’s coercive powers in order to convene
en/on/onca/doc/2016/2016onca437/2016onca437.pdf (Court
or conduct the hearing and the hearing is not contrary to
of Appeals)
the law of the place in which it will be held”.
https://www.canlii.org/en/ca/scc-l/doc/2017/2017canlii8581/2
For the full text of the decision see: https://www.canlii.org/
017canlii8581.pdf (Supreme Court)
en/ca/scc/doc/2016/2016scc42/2016scc42.html or Endean v
For further analysis of the decisions, see: http://www.
British Columbia, 2016 SCC 42
canadianappeals.com/2017/04/04/no-place-to-hide-service-
in-states-that-are-not-signatories-to-the-hague-convention/.
Ontario Court Enforces American Judgments Against Iran
Under the Canadian State Immunity Act, foreign states
Canada: Federal Court of Appeal establishes default conflicts
enjoyed immunity of jurisdiction. This privilege includes
rules in transnational copyright litigation
being sued on a foreign judgment. Nevertheless, in 2012
On March 2, 2016, the Federal Court of Appeal remitted a
Canada passed new legislation in order to give victims of
claim alleging copyright infringement and passing off to the
terrorism the ability to sue a foreign state that sponsored
Federal Court for re-determination. The claims involve an
the terrorism. It also made it easier for foreign judgments
Indian Punjabi-language newspaper published since 1955,
against such a state to be enforced in Canada. In the case
“Ajit Daily”. The newspaper began online publication in
Tracy v The Iranian Ministry of Information and Security, the
2002. Few subscriptions were sold in Canada. The
Superior Court of Ontario considered these new rules and
defendants in the matter for appeal in Sadhu Singh
how they applied to a series of American decisions issued
Hamdard Trust publish a Canadian Punjabi-language
against Iran in favour of American victims of terrorist acts
newspaper, “Ajiit Weekly” since 1993. The Ajit Weekly began
which Iran was found to have sponsored. The court found
online publication in 1998. After litigation in the United
that Iran was not immune from the enforcement
States, the parties entered into a partial settlement
proceedings and that the American decisions were
agreement providing for the terms of logo licensing. The
enforceable against certain assets of Iran located in Ontario.
settlement maintains the parties respective trademark rights
For detailed information see http://conflictoflaws.net/2016/
and does not release any prior claims. The parties provided
ontario-court-enforces-american-judgments-against-iran/.
23
Fall 2017
AMERICAS: North America —continued from page 23 spying by a foreign government. The plaintiff, a U.S. citizen
and previously an asylee from Ethiopia, alleged that he was
insufficient evidence on U.S. law in order to interpret the tricked into downloading a computer program infecting his
partial settlement agreement as it related to the claims computer with a virus. The virus allegedly permitted the
asserted in the Canadian litigation. The Federal Court of Federal Democratic Republic of Ethiopia to spy on the
Appeal ruled that under such circumstances, Canadian plaintiff remotely. The plaintiff thereupon commenced tort
courts must apply domestic law to the extent it has “no proceedings against the Federal Democratic Republic of
evidence as to the content of foreign law”. Ethiopia in U.S. courts, alleging that Ethiopia violated
For the full text of the decisions see: https://www.canlii.org/ Maryland law. The action was dismissed. On appeal, the
en/ca/fca/doc/2016/2016fca69/2016fca69. court clarified that the non-commercial tort exception
html?resultIndex=1. “abrogates sovereign immunity for a tort occurring entirely
For further analysis of the decision see: http://www. in the United States” and that the tort alleged constituted “a
canadianappeals.com/2016/04/07/missing-the-mark-federal- transnational tort”. Specifically, the court discussed the
court-of-appeal-set-aside-dismissal-in-passing-off-and- jurisdictional exception to foreign sovereign immunity
copyright-case/ created for non-commercial torts under the FSIA. Given the
prevalence of state-related cyber-surveillance, the case is
U.S. Supreme Court delivers opinion on the presumption likely to be significant in framing future litigation arising out
against extraterritoriality doctrine of similar underlying conduct.
In 2016, the U.S. Supreme Court was confronted with the For the full text of the decision, see: https://www.cadc.
question of whether Congress had affirmatively and uscourts.gov/internet/opinions.nsf/E0C614D73F037CAD8525
unmistakably instructed a statute to apply to foreign 80E3004EE648/$file/16-7081-1665840.pdf.
conduct. On June 20, 2016, the Court decided that in order
for a statute to have extraterritorial applicability, there has United States: United States District Court for the District
to be clear indication that Congress intended to do so and, of Columbia rules that Foreign Sovereign Immunities Act
where there is none, the issue is whether the case involves a permits enforcement of arbitral award even when arbitration
domestic application of the statute by looking at the claimant fails to abide by procedural steps prior to
statute’s “focus”. The Supreme Court held that the arbitration including in consent to arbitration
Racketeer Influenced and Corrupt Organizations Act (“RICO”) On August 5, 2016, the United States District Court for the
applies to specific international activity. For example, RICO District of Columbia ruled that a state consent to arbitration
applies to the prohibition against engaging in monetary in a multilateral treaty satisfies the arbitration exception to
transactions in criminally derived property when the sovereign immunity under the Foreign Sovereign Immunities
defendant is a U.S. person, assassinations of Government Act. The case is significant, as the state, Kazakhstan,
officials, hostage taking if either the hostage or the offender alleged that the arbitration claimant had failed to follow the
is a U.S. national, and the killing of a U.S. citizen. Here, the procedural steps required under the consent to arbitration
Court reasoned that Congress gave a clear, affirmative to commence arbitration. Specifically, Kazakhstan asserted
indication that RICO applied to foreign racketeering only to that the claimant had failed to seek an amicable resolution
such extent. to the dispute for the period of time required by the
The full text of the ruling may be found here: https://www. consent to arbitration. The District Court rejected the
supremecourt.gov/opinions/15pdf/15-138_5866.pdf as well argument. It noted that the consent to arbitration itself was
as RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 not conditional upon the earlier negotiation period.
Consequently, the failure to abide by procedural
United States: United States Court of Appeals for the requirements did not place the suit outside of the consent
District of Columbia Circuit rules that Foreign Sovereign to arbitration and the arbitration exception to sovereign
Immunities Act non-commercial tort exception did not apply immunity was deemed applicable by the court.
to cyber-spying For the full text of the decision, see: https://casetext.com/
On March 14, 2017, the United States Court of Appeals for case/stati-v-republic-kazakhstan.
the District of Columbia Circuit determined that the non-
commercial tort exception did not apply to alleged cyber-
24
Fall 2017
AMERICAS: North America —continued from page 24 Datacarrier filed a complaint in Ecuadorian Courts which
found some similarities between both softwares. The District
United States: United States Court of Appeals for the Tenth Court adjudicated the case acknowledging jurisdiction
Circuit rules that serving untranslated Chinese-language pursuant to 28 U.S.C. §§ 1331 and 1338.Datacarrier claimed
notice of arbitration on U.S. company may be grounds for that WOCCU authorized from the U.S. acts of direct
non-enforcement of award infringement that took place in foreign states, giving rise a
On July 16, 2016, the United States Court of Appeals for the claim under the Copyright Act. On the other hand, WOCCU
Tenth Circuit ruled that Chinese award would not be contended that it could not be liable for conduct that
enforced under the New York Convention because the occurred outside the U.S. even though such illegal conduct
original notice of arbitration was in Chinese and thus not was directed and authorized from the U.S. The Court
reasonably calculated to give notice of claim to the followed the reasoning of the Ninth Circuit Court in
arbitration respondent. The underlying contract involved Subafilms, Ltd. v. MGM-Pathe Communications Co., when it was
the sale of solar energy products between a Chinese seller confronted with a similar question. In Subafilms, the Court
and a U.S. buyer. The contract formed part of a larger set of held that wholly extraterritorial acts are not recognized
transactions, some of which expressly stipulated that under the Copyright Act.
correspondence and proceedings would take place in For the full text of the decision see: https://casetext.com/
English. Correspondence between the parties under the case/datacarrier-sa-v-woccu-servs-grp-inc or Datacarrier S.A.
contract at issue in fact took place in English. The contract’s v. WOCCU Servs. Grp., 2016 U.S. Dist. LEXIS 161698
arbitration provision, however, was silent on the language of
the proceedings, stipulating merely that the Chinese CIETAC Section 1782 of Title 28 of the United States Code gives
arbitration rules would govern proceedings. After ongoing power to District Courts to subpoena records located outside
correspondence seeking to settle the dispute, buyer the United States
received a Chinese language document, which turned out to On August 23, 2016, the United States Court of Appeals
be a notice for arbitration. The buyer did not respond for the Eleventh Circuit affirmed the District Court’s
promptly.In fact, the buyer failed to act within the window to decision holding that “the location of responsive
appoint an arbitrator under the CIETAC arbitration rules and documents and electronically stored information” (to the
therefore was unable to do so. The court looked to other extent that a physical location can be located) does not
agreements between the parties as well as their course of establish a bar to discovery under § 1782. This Section
performance and course of dealing to determine that use of allows a federal district court to order any person that
Chinese language documents under the circumstances failed resides in such district to give her testimony or to produce
to provide adequate notice to the buyer of ongoing documents to use in a proceeding before a foreign or
arbitration proceedings. The court therefore refused to international tribunal. The decision follows a marital
enforce the subsequent award pursuant to New York dispute taking place in Russia in which the Northern
Convention article V(1)(b) & (d). District of Georgia had issued an order compelling a
For the full text of the decisions, see: https://www.ca10. company that was involved with the ex-husband of the
uscourts.gov/opinions/15/15-1256.pdf. complainant to produce some documents located outside
the United States.
The U.S. District Court for the Western District of For the full text of the decisions, see: http://law.justia.com/
Wisconsin decided that the Copyright Act does not cover cases/federal/appellate-courts/ca11/15-13008/15-13008-
domestic authorization of foreign infringement 2016-08-23.html or Sergeeva v. Tripleton Int'l Ltd., 834 F.3d
On November 22, 2016, the District Court for the Western 1194.
District of Wisconsin held that the Copyright Act does not
apply to illicitforeign conduct directed from the U.S. The In a dispute between a Hong Kong plaintiff and a Canadian
plaintiff, Datacarrier, S.A., (“Datacarrier”) an Ecuadorian defendant, the U.S. Federal District Court dismissed the
software company, provided software to the defendant, claim based on forum non-conveniens. The Federal Circuit
WOCCU Services Group, Inc. (“WOCCU”), a Wisconsin Court reversed
corporation that provides financial products and services to On March 14, 2016, the U.S. Court of Appeals for the
credit unions outside of the U.S. Eventually, WOCCU began Federal Circuit reversed a Federal District Court decision
developing its own software replacing Datacarrier’s software.
25
Fall 2017
AMERICAS: North America —continued from page 25 For further details see https://www.asil.org/blogs/
us-appellate-court-voids-judgment-against-palestine-lack-
that dismissed a Hong Kong corporation’s claim based on jurisdiction-august-31-2016.
forum non-conveniens. Appellant, Halo Creative & Design,
Ltd. (“Halo”) is a Hong Kong corporation that designs and
sells furniture throughout the United States. Appellee,
Associations and Events
Comptoir Des Indes, Inc., a Canadian Corporation AJIL Unbound Symposium on the Third Restatement of
(“Comptoir”), also designs and sells furniture in the U.S., Conflict of Laws
including Illinois. Halo claimed infringement of some of its The American Law Institute (ALI) has recently initiated the
U.S. design patents, copyrights and trademark and filed suit project of elaborating a new Restatement of Conflict of
before the Northern District of Illinois. Comptoir contained Laws. In this regard, AJIL Unbound organized in 2016 a
that the Canadian Federal Court was a more adequate forum Symposium to discuss the directions the Third Restatement
to resolve the dispute since it had jurisdiction to adjudicate of Conflict of Laws might take.
intellectual property rights. The District Court granted For the valuable contributions to the discussion see https://
Comptoir´s motion to dismiss based on the doctrine of www.asil.org/blogs/introduction-symposium-third-
forum non-conveniens reasoning that Halo could seek relief restatement-conflict-laws.
in Canada because (1) Hong Kong, the U.S. and Canada are For the current status of the restatement process see
signatories of the Berne Convention and (2) Canada could https://www.ali.org/projects/show/conflict-laws/.
also apply U.S. laws since the U.S. in some occasions has
applied foreign copyright laws. The Federal Circuit reversed ASIL Annual Meeting
and found that Canada was not a proper forum to safeguard The Annual Meeting of the American Society of
U.S. copyright, patent, and trademark laws. The Court based International Law was held in Washington, D.C, from 12 to
its decision on the fact that there was a lack of evidence 15 April 2017, on the theme “What International Law
showing that there was any action taking place in Canada Values.” For more information see: https://www.asil.org/
and that Comptoir failed to show that Canada would event/asil-2017-annual-meeting.
provide adequate mechanisms for legal redress.
For the full text of the decisions, see http://law.justia.com/
cases/federal/appellate-courts/cafc/15-1375/15-1375-2016- Recent Scholarly Work
03-14.html or Halo Creative & Design, Ltd. v. Comptoir Des
Scholars in USA and Canada have published extensively on
Indes, Inc., 816 F.3d 1366
PIL issues. We would like to mention in particular the
following: Pedro J. Martinez Fraga& C. Ryan Reetz, Public
U.S. Appellate Court Voids Judgment against Palestine for
Purpose in International Law: Rethinking Regulatory Sovereignty in
Lack of Jurisdiction
the Global Era, Cambridge University Press: 2015, Lea
On August 31, 2016, the Second Circuit Court of Appeals
Brilmayer, A General Look at Specific Jurisdiction, 42 Yale
overruled a $650 million verdict against the Palestinian
Journal of International Law 1 (2017), https://campuspress.
Authority and the Palestine Liberation Organization for harm
yale.edu/yjil/
suffered by Americans through terrorist attacks in Israel. The
files/2017/03/A-GENERAL-LOOK-AT-SPECIFIC-
Second Circuit found that the District Court had erred in
JURISDICTION-FINAL_Final-Draft-1a7ptmb.pdf, Stacie I.
exercising jurisdiction, noting that the attacks had occurred
Strong, Realizing Rationality: An Empirical Assessment of
“entirely outside the territorial jurisdiction of the United
International Commercial Mediation, 73 Washington and Lee Law
States”. It further found that “the federal courts cannot
Review 1973 (2016) https://papers.ssrn.com/sol3/papers.
exercise jurisdiction in a civil case beyond the limits
cfm?abstract_id=2737462, Symeonides, Symeon C., Choice
prescribed by the due process clause of the Constitution, no
of Law in the American Courts in 2016: Thirtieth Annual Survey
matter how horrendous the underlying attacks or morally
(February 16, 2017). American Journal of Comparative Law,
compelling the plaintiffs’ claims. The district court could not
Vol. 65, No. 2, 2017. Available at SSRN: https://ssrn.com/
constitutionally exercise either general or specific personal
abstract=2919145, New Canadian Textbook on Conflict of Laws,
jurisdiction over the defendants in this case. Accordingly,
by Stephen G.A. Pitel and Nicholas S. Rafferty, Irwin Law
this case must be dismissed.”
26
Fall 2017
AMERICAS: North America —continued from page 26 account the Brexit iter. In the wake of the referendum of 23
June 2016 the UK Government triggered the process to
Ed., 2016, and Zamora Cabot, Francisco Javier, Access of withdraw from the EU according to Article 50 of the Treaty
Victims to Justice and Foreign Conducts: The U.S.S.C. Gives on European Union (TEU). The Brexit process is purportedly
Another Turning of the Screw in the Obb Personenverkeher V. Sachs to end in 2019, when the United Kingdom will no longer be
Case, on Sovereign Immunity) (June 23, 2016). Revista bound by the EU Law. As a result, all the PIL Regulations will
Electrónica de Estudios Internacionales, DOI: 10.17103/ no apply to UK, be the Brexit “hard” or “soft” depending on
reei.31.07. Available at SSRN: https://ssrn.com/ the final agreement that the UK and the EU will reach in
abstract=2800997or http://dx.doi.org/10.2139/ compliance with Article 50 TEU. In addition to the EU PIL,
ssrn.2800997. the ongoing sensitivity of the European Court of Human
Rights on the interplay between PIL and human rights, the
revision of several arbitration rules to make the proceedings
EUROPE under arbitral institutions more expeditious, the updating of
some national legal systems designed to face challenges
—Editors: Massimo Benedettelli, Marina coming from social developments, and, finally, the activated
Castellaneta, and Antonio Leandro competence of the EU in negotiating and entering into
treaties in investment matters, deserve not less attention.
European Union
EU and International Conventions
European Union Trade Agreement with Canada
The EU and Canada trade agreement, known as the
Comprehensive Economic and Trade Agreement (CETA), has
been published on the EU Official Journal of 14 January 2017,
L 11. The Agreement includes provisions on market access
for goods, services, investment and government
procurement, as well as on intellectual property rights,
sanitary and phytosanitary measures, sustainable
development, regulatory cooperation, mutual recognition,
trade facilitation, cooperation on raw materials, dispute
settlement and technical barriers to trade. CETA ensures
protection for investments while enshrining the right of
The bulk of Private International Law (PIL) developments for governments to regulate in the public interest, including when
the EU Member States relied on the EU activity in the field of such regulations affect a foreign investment. The traditional
the cooperation in civil, commercial and family matters. form of investor-state dispute settlement that exists in many
Regulations concerning matrimonial property regimes, trade agreements negotiated by Member States (known as
property consequences of registered partnership, cross- ISDS) has been replaced with a new and improved Investment
border insolvency, freezing order on bank accounts, and Court System (ICS). This Agreement shall enter into force on
simplification in public documents delivery will be the first day of the second month following the date the
implemented between 2017 and 2019. In parallel, the Court Parties exchange written notifications. On 15 February, the
of Justice of the European Union keeps addressing requests European Parliament voted in favour of the provisional
for preliminary rulings in the same matters so as to application, excluding some Chapters, between the European
strengthen the uniform interpretation of EU PIL and Union and its Member States and Canada.
contributing to achieve the effet utile of each regulation. Other The full text of the Agreement and the Annexes may be
EU institutions keep their agenda up to date for preparatory found here: http://eur-lex.europa.eu/legal-content/IT/
works and studies. Future steps obviously need to take into TXT/?uri=OJ:L:2017:011:TOC.
27
Fall 2017
EUROPE —continued from page 27 issues of private international law concerning the status of
children and on the recognition of parenthood. The authors
of the document, Amalia Rigon and Céline Chateaus,
EU Regulations analyze the European Human Rights Court jurisprudence
Enhanced Cooperation on Property Regime of International and the legal issues raised by the surrogacy arrangements.
Couples One of the main problems is the refusal of the authorities of
On 9 June 2016, with Decision (EU) 2016/954, the EU Members States to recognize the child’s birth certificate.
Council authorized 18 Member States (Austria, Belgium, The adoption of a private international law instrument could
Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, be a solution to this problem and so the EU could adopt
France, Germany, Greece, Italy, Luxembourg, Malta, the conflicts of law rules concerning civil statutes and rules on
Netherlands, Portugal, Slovenia, Spain and Sweden) to start mutual recognition of family statutes.
an enhanced cooperation in the area of jurisdiction, The full text of the report may be found here: http://www.
applicable law and recognition of decisions in matters of europarl.europa.eu/RegData/etudes/BRIE/2016/571368/IPOL_
matrimonial property regimes and property consequences of BRI(2016)571368_EN.pdf.
registered partnership. The enhanced cooperation has been
implemented by the Regulations (EU) 2016/1103 Towards a Good-bye to the Apostille
(matrimonial property regimes) and 2016/1104 (property The Apostille – the long-established method relying on a
consequences of registered partnerships) of 24 June 2016. certificate of legalization of public documents to be
Both Regulations are currently into force, but will be presented before foreign jurisdictions – gets obsolete after
applicable from 29 January 2019. the adoption of Regulation (EU) 2016/1191 of 6 July 2016,
The full text of the Regulation 2016/1103 may be found which establishes, for certain public documents, a
here: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?u multilingual form designed to simplify the entire legalization
ri=CELEX:32016R1103&qid=1486579258863&from=EN. process, thereby facilitating the free movement of EU
The full text of the Regulation 2016/1104 may be found citizens. Put in a nutshell, the new form needs no
here: http://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?ur legalization (or any other similar formality), translation or
i=CELEX:32016R1104&qid=1486579007414&from=EN. certification as evidence of a document’s authenticity when
the relevant public document (such as administrative
Enhanced Cooperation on the Law Applicable to Divorce and documents or notarial acts) is issued by the authorities of a
Legal Separation Member State to be presented to the authorities of another
Estonia has joined the Regulation (EU) No. 1259/2010 of 20 Member State. The form is applicable to documents stating
December 2010 implementing enhanced cooperation in the births, deaths, names, marriages, divorces, legal separations,
area of the law applicable to divorce and legal separation marriage annulments, registered partnership and dissolution,
(called Rome III Regulation). The Rome III legal separation or annulment, parenthood, adoption,
Regulation will apply to Estonia as of 11 February 2018. As a domicile, residency, nationality, absence of a criminal record
result, the number of participating Member States will and right to vote. The bulk of the provisions will apply from
amounts to seventeen. The European Commission 16 February 2019.
confirmed the Estonia participation by Decision (EU) The full text of the Regulation 2016/1191 may be found
2016/1366 of 10 August 2016. here: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?u
The full text of the Rome III Regulation may be found here: ri=CELEX:32016R1191&qid=1486629765612&from=EN.
International Surrogacy Arrangements The European Account Preservation Order

The Department “Citizens’ Rights and Constitutional Affairs” The Regulation (EU) No 655/2014 establishing a European
of the European Parliament adopted, on 30 August 2016, a Account Preservation Order procedure (“EAPO”) applies as
document on “Regulating International Surrogacy of 18 January 2017. This uniform procedure, which is a type
Arrangements – State of Play” (Doc. No. 571.368). The of precautionary measure, allows creditors in cross-border
report clarifies the state of play on the effects of surrogacy cases to preserve the amount owed by “freezing” debtor’s
agreements in the Member States and the private bank accounts. The procedure is available as an alternative
international law problems arising from the above to equivalent national measures, which, though, do not
mentioned arrangements, with particular regard to the
28
Fall 2017
EUROPE —continued from page 28 EU and European Case Law

benefit from the same recognition-friendly regime. The Court of Justice European Union: Maintenance Obligations
EAPO does not apply to Denmark and United Kingdom. The On 9 February 2017, in case C-283/16, the CJEU ruled that
European e-Justice Portal offers two new functionalities under Chapter IV of Regulation No 4/2009 of 18 December
pertaining to it: dynamic (online) forms and communications 2008 on jurisdiction, applicable law, recognition and
of the Member States (https://e-justice.europa.eu/ enforcement of decisions and cooperation in matters
sitenewsshow.do?plang=it&newsId=152). relating to maintenance obligations, a maintenance creditor
The full text of the Regulation may be found here: http://eur- who has obtained an order in one Member State and wishes
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014 to enforce it in another EU State may make an application
R0655&from=EN. directly to the competent authority of the latter Member
State, such as the competent national court. According to
New Rules on Cross-border Insolvency Proceedings. the Court, it is not required by the EU rules that the creditor
The Regulation (EU) 2015/848 of 20 May 2015 on insolvency submits the application to that court through the Central
proceedings will enter into force as of 26 June 2017, Authority of the Member State of enforcement.
replacing the Regulation (EC) No 1346/2000 of 26 May 2000. The full text of the judgment may be found here: http://curia.
The new Insolvency Regulation modifies the former one as europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f
follows: a) the scope includes non-liquidation proceedings 130d669b6d82500e348bd9661f9844e0d03e9.e34KaxiLc3eQ
designed to give debtors a «second chance»; b) the c40LaxqMbN4PahiSe0?text=&docid=187686&pageIndex=0
jurisdictional framework has been reinforced in terms of &doclang=EN&mode=req&dir=&occ=first&part=1&
certainty and clarity; c) the coordination between several cid=1026977.
insolvency proceedings opened against the same debtor, as
well as the balancing between efficient insolvency Court of Justice European Union: Cross-border Infringements
administration and protection of local creditors, have been of Distribution Internet Network
strengthened; d) States are compelled to establish On 21 December 2016, in Case C-618/15, the CJEU ruled
insolvency registers which will be interconnected with each under the Brussels I on the jurisdiction over an injunction
other; e) detailed rules on groups of companies provide for requested against the infringement of the prohibition on
the coordination between multiple insolvency proceedings resale outside a selective distribution network resulting from
and/or the opening of a “group coordination proceeding”. the offers, on websites operated in various Member States,
Link: The full text of the Regulation may be found here: of products covered by that network. When it comes to
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CEL determine according to Article 5 (3) of the Brussels I
EX:32015R0848&from=EN. Regulation the place where the damage has occurred, the
Court requires to regard the territory of the Member State
Cross-borders Mergers and Divisions which protects the prohibition on resale by means of the
The European Parliament Research Service has presented a action at issue, a territory on which the claimant alleges to
study on “Ex-post analysis of the EU framework in the area of have suffered a reduction in its sales.
cross-border mergers and divisions” (PE no. 593.796). The The full text of the judgment may be found here:
study by Stephane Reynolds and Amandine Scherrer presents http://curia.europa.eu/juris/document/document.jsf?text=&d
an evaluation of the implementation and effects of the ocid=186487&pageIndex=0&doclang=EN&mode=lst&dir
provisions of EU law on cross-border mergers and divisions =&occ=first&part=1&cid=482838.
and, in particular, on EU Directives on the division of public
limited liability companies (82/891/EEC) and on cross-border Court of Justice European Union: Cross-border Insolvency
mergers of limited-liability companies (2005/56/EC). The Proceedings and Fiscal Claims
study analyzes the application in the EU Member States, the On 9 November 2016, in Case C-212/15, the CJEU ruled
jurisprudence of the European Court of Justice and the under the Regulation No 1346/2000 of 26 May 2000 -on
possibility for a further legislative initiative in this field. insolvency proceedings- on the effects provided for by
Link: The full text of the study may be found here: http:// legislation of a Member State on foreign fiscal claims which
www.europarl.europa.eu/thinktank/it/document. have not been pursued by means of insolvency
html?reference=EPRS_STU(2016)593796.
29
Fall 2017
EUROPE —continued from page 29 Court of Justice European Union: Overriding Mandatory
Provisions in Employment Contracts
proceedings. The Court held that such effects are governed On 18 October 2016, in Case C-135/15, the CJEU ruled
by the lex concursus (i.e. the law of the State of the under the Rome I Regulation – Regulation (EC) No 593/2008
insolvency proceedings) irrespective of whether the claim of 17 June 2008 on the law applicable to contractual
be public or private. Moreover, the Court clarified which law obligations – on whether overriding mandatory provisions
governs the effects of the insolvency proceedings on other than those of the lex fori or of the State where the
enforcement actions brought outside the State of the obligations arising out of the employment contract have
insolvency proceedings: while the effects on ‘lawsuits been, or are to be, performed may be applied. In the Court’s
pending’ are put by Article 15 under the law of the State in view, national courts are precluded from applying such
which the lawsuit is pending, the effects on all other provisions as legal rules, but are permitted to take them into
proceedings brought by individual creditors are in any event account when assessing the facts of the case which are
governed by the lex concursus. relevant in the light of the law governing the contract.
The full text of the judgment may be found here: http://curia. The full text of the judgment may be found here: http://curia.
europa.eu/juris/document/document.jsf?text=&docid=1852 europa.eu/juris/document/document.jsf?text=&docid=1845
22&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first 41&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first
&part=1&cid=824154. &part=1&cid=819317.
Court of Justice European Union: Transfer of Case and Child Court of Justice European Union: Cross-border Crimes and
Protection Victim Compensation
On 27 October 2016, in Case C-428/15, the CJEU ruled On 11 October 2016, in Case C-601/14, the CJEU (Grand
under Article 15 of Regulation (EC) No 2201/2003 of Chamber) declared that Italian Republic has failed to fulfill
27 November 2003 -concerning jurisdiction and the its obligations under Article 12(2) of Directive 2004/80/EC of
recognition and enforcement of judgments in matrimonial 29 April 2004 relating to compensation to crime victims for
matters and the matters of parental responsibility- on the failing to adopt all the measures necessary to guarantee the
transfer of a case from one court to another in the best existence, in cross-border situations, of a compensation
interest of the child. The Court held that, in order for the scheme for victims of all violent intentional crimes
court having jurisdiction in a Member State to assess committed on its territory.
whether a court of another Member State with which the The full text of the judgment may be found here: http://curia.
child has a particular connection is better placed, the first europa.eu/juris/document/document.jsf?text=&docid=1844
court must be satisfied that the transfer of the case is such 25&pageIndex=0&doclang=EN&mode=req&dir=&occ=firs
as to provide genuine and specific added value to the t&part=1&cid=439371.
examination of that case, taking into account, inter alia, the
rules of procedure applicable in the other State. Besides, Court of Justice European Union: Cosmetics Products and
the transfer may not be detrimental to the situation of the Offshore Animal Testing
child. In this regard, the court having jurisdiction must not On 21 September 2016, in Case C-592/14, the CJEU ruled
assess either the effect of the transfer on the right of under Article 18 of Regulation (EC) No 1223/2009 -on
freedom of movement of persons other than the child, or cosmetic products- that the placing on the European Union
the reasons why the parent has exercised the right of market of cosmetic products containing some ingredients
freedom of movement prior to the court being seized, that have been tested on animals outside the European
unless those considerations reveal adversely repercussions Union, in order to market cosmetic products in third
on the child. countries, may be prohibited if the resulting data is used to
The full text of the judgment may be found here: http://curia. prove the safety of those products for the purposes of
europa.eu/juris/document/document.jsf?text=&docid=1848 placing them on the EU market.
96&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first The full text of the judgment may be found here: http://curia.
&part=1&cid=819317. europa.eu/juris/document/document.jsf?text=&docid=1836
02&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first
&part=1&cid=752355.
30
Fall 2017
EUROPE —continued from page 30 National Reports

Court of Justice European Union: Unfair Terms in Online International Conventions
Sales Contracts
Latvia: Hague Protection of Adults Convention.
On 28 July 2016, in Case C-191/15, the CJEU ruled that the
On 15 December 2016, Latvia signed the Hague Convention of 13
law applicable to the unfairness of terms in general terms
January 2000 on the International Protection of Adults.
and conditions in an action for an injunction is to be
The full text of the Convention may be found here: https://
determined by Regulation (EC) No 864/2007 of 11 July 2007
www.hcch.net/en/instruments/conventions/full-text/?cid=71.
-on the law applicable to non-contractual obligations-, while
the contractual terms are governed by the law determined
Monaco: Hague Protection of Adults Convention.
by Regulation (EC) No 593/2008 of 17 June 2008 -on the law
On 1st July 2016, the Hague Convention of 13 January 2000 on the
applicable to contractual obligations-. As for choice-of-law
International Protection of Adults entered into force.
clauses in consumer contracts, the Court drawn from
Article 3(1) of Directive 93/13/EEC of 5 April 1993 on unfair
terms in consumer contracts that a term in the general
terms and conditions of a seller or supplier which has not
Norway: Child Protection Convention.
been individually negotiated, under which the contract
On 1st July 2016, the 1996 Hague Convention on Jurisdiction,
concluded with a consumer in the course of electronic
Applicable law, Recognition, Enforcement and Co-operation
commerce is to be governed by the law of the Member State
in Respect of Parental Responsibility and Measures for the
in which the seller or supplier is established, is unfair in so
Protection of Children entered into force.
far as it leads the consumer into error by giving him the
impression that only the law of that Member State applies
to the contract, without informing him that under
Article 6(2) of Regulation No 593/2008 he also enjoys the
Serbia: Child Protection Convention.
protection of the mandatory provisions of the law that
On 1st November 2016, the 1996 Hague Convention on
would be applicable in the absence of that term.
Jurisdiction, Applicable law, Recognition, Enforcement and
The full text of the judgment may be found here: http://curia.
Co-operation in Respect of Parental Responsibility and
europa.eu/juris/document/document.jsf?text=&docid=1822
Measures for the Protection of Children entered into force.
86&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first
&part=1&cid=786462.
European Court of Human Rights: Waiver of Access to
The Netherlands: Transparency in Treaty-based Investor-
Courts and Arbitration
State Arbitration
On 1st March 2016, in case Tabbane v. Switzerland (application
On 18 May 2016, the Netherlands signed the United Nations
no. 41069/12), the Court evaluated whether the waiver of
Convention on Transparency in Treaty-based Investor-State
the right to challenge an award before a court is compatible
Arbitration (called “Mauritius Convention on Transparency”)
with the right of access to justice under Article 6 ECHR.
at UN headquarters in New York.
After assessing that the claimant expressly and freely both
The full text of the Convention may be found here: http://
waived his right to challenge the arbitral decision and agreed
www.uncitral.org/uncitral/en/uncitral_texts/
– by way of reference to the decision of the arbitral tribunal
arbitration/2014Transparency_Convention.html.
– on choosing the Swiss Law on Private International Law
(“LPIL”) as law of the seat, the Court deemed the waiver of
the challenge compatible with ECHR. Moreover, the Court National Legislation
stressed that Article 192 LPIL, which governs the
consequences of agreeing to waive the right to challenge Italy: New Private International Law Rules on Same-sex
the award, sticks in turn to ECHR as it reflects the Swiss Couples, Registered Partnerships and Maintenance
legislative policy to increase the attractiveness and Obligations.
effectiveness of international arbitration in Switzerland. As of 11 February 2017, the Italian Law on Private
The full text of the judgment may be found here: http:// International Law (Law 31 May 1995 no 218) includes new
hudoc.echr.coe.int/eng - {"itemid":["001-161870"]}. —continued on page 32
31
Fall 2017
EUROPE —continued from page 31 Germany: Sunni Child Marriage and Public Policy
On 12 May 2016, the Oberlandesgericht Bamberg (Higher
provisions on jurisdiction and applicable law in matters of Regional Court, Bavaria) ruled on a divorce claim concerning
same-sex couples and registered partnership which come a 14-year old girl married to a 21-year old man. Despite the
along with certain overriding mandatory provisions expressly marriage being valid under Syrian law, the youth welfare
called by that Law. Moreover, same-sex registered Bavarian local authorities asserted that is was not so under
partnerships which Italian citizens habitually resident in Italy German public policy due to the brides’ too low age. On the
enter into shall be treated as registered partnerships contrary, the Court deemed the marriage valid, thereby
governed by Italian law. Finally, the law governing the recognizing the effect of the Syrian law and rituals.
maintenance obligations arising from family relationships in The full text of the judgment may be found here:
any case is the law designated by the conflict-of-laws rules http://www.gesetze-bayern.de/(X(1)
of the Regulation (EC) No 4/2009 of 18 December 2008 on S(y4k5weyebkealaooeuyibuub))/Content/
jurisdiction, applicable law, recognition and enforcement of Document/Y-300-Z-BECKRS-B-2016-N-09621?hl=true&Aspx
decisions and cooperation in matters relating to AutoDetectCookieSupport=1.
maintenance obligations.
The new provisions may be found here: http://www. Russia: Investor-to-State Dispute before Russian Courts
normattiva.it/atto/caricaDettaglioAtto?atto. On 5 August 2016, the Moscow Commercial Court was
dataPubblicazioneGazzetta=2017-01-27&atto. seized of a dispute between a Russian businessman and the
codiceRedazionale=17G00013&atto.articolo. Republic of Lithuania concerning losses arising out of the
numero=1&atto.articolo.tipoArticolo=0. nationalization of a private bank. The preliminary issue at
stake was the Russian jurisdiction over a claim brought
Switzerland: Foreign Illicit Assets against a sovereign State in a matter purportedly falling
On 1st July 2017, the Foreign Illicit Assets Act of 18 under the ISDS methods provided by the Russian-Lithuanian
December 2015 and related ordinances entered into force, BIT. The claimant relies on the Federal Law No. 297-FZ on
thereby making it easier to freeze, confiscate and return the jurisdictional immunities of foreign states and the
illicit assets stashed in Swiss banks by foreign dictators property of a foreign state in the Russian Federation, which
where there is reason to assume that those assets have came into force on 16 January 2016 and in the claimant’s
been acquired through acts of corruption, criminal views accords jurisdiction should the foreign State activity,
mismanagement or by other felonies. such as those disputed in the instant case, occur in Russian
The full text of the Act may be found here: https://www. territory. The Commercial Court dismissed this assertion on
unodc.org/documents/treaties/UNCAC/WorkingGroups/ 28 October. The claimant filed an appeal, still pending.
workinggroup2/2016-August-25-26/V1605154e.pdf. Link: The decisions of the Russian Commercial Courts may
be found here: http://www.arbitr.ru/eng/26201.html.
National Case Law United Kingdom: Court of Appeal on Choice of Court

Agreements
France: Google Tax Quashed
On 4 November 2016, the London Court of Appeal ruled
The fiscal measure popularly referred as to the “Google Tax”
that the competence to adjudicate the Euro 765-million
has been quashed by the French Constitutional Council on
dispute between Goldman Sachs and Novo Banco in
29 December 2016. Initially the measure was conceived of
matters of recovery claims arising from the failure of the
to limit multinational corporations’ schemes to pay as little
Banco Espirito Santo lies with the Portuguese Courts,
tax as possible in France. The Council found the measure
thereby overruling an earlier judgment of the High Court of
incompatible with the French Constitution.
Justice. The Court of Appeal held that the choice of court
The full text of the decision may be found here:
agreement under which the claimant invoked the English
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
Courts competence did not bind Novo Banco.
francais/les-decisions/acces-par-date/decisions-depuis-
Link:The full text of the judgment may be found here:
1959/2016/2016-744-dc/decision-n-2016-744-dc-du-29-
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1092.html.
decembre-2016.148423.html.
32
Fall 2017
EUROPE —continued from page 32 database freely available for public consultation.
Info may be found here: http://www.eufams.unimi.it.
United Kingdom: High Court of Justice on Environmental Conferences: 2016 Noteworthy Conferences Addressing PIL
Tort Claims Issues
On 27 May 2016, the High Court of Justice ruled on the UK On 10 November 2016, the Academy of European Law
Courts competence over an environment pollution claim (ERA), in co-operation with the European Circuit, the Bar
brought by some Zambian citizens against Vedanta Council and the Hamburgischer Anwaltverein, hosted a
Resources Plc and its Zambian subsidiary. While the conference in London on “The Impact of Brexit on
pollution occurred in Zambia, the UK Courts retain Commercial Dispute Litigation in London”; on 23 September
competence due to the so-called “foreign direct liability” 2016, the Société de législation comparée organised a conference
that UK companies bear under English law when causing on “The application of foreign law under constitutional and
damages abroad. treaty-based review”; on 15 September 2016, the University
The full text of the judgment may be found here: of Milan hosted a seminar on “New Trends in EU Private
http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/ International Law”; on 16-17 June 2016, the Centre for
EWHC/TCC/2016/975.html&query=(vedanta). Business Law and Practice, University of Leeds, and the
Centre for Private International Law, the University of
Arbitration Institutions Aberdeen organized a conference on “Cross-Border
Litigation in Europe”; on 9-10 June 2016, the Spanish
Sweden: New SCC Arbitration Rules. Association of Professors of International Law and
On 1st January 2017, the new arbitration rules and the rules International Relations (AEPDIRI) organized the international
of expedited arbitration of the Stockholm Chamber of conference “Challenges for the European Union External
Commerce entered into force. Provisions on summary Action” in the framework of the Jean Monnet Project “EU
procedure, efficiency and expeditiousness, multi-party/claim, Law between Universalism and Fragmentation: Exploring the
and investment arbitration account for the main novelties. Challenge of Promoting EU Values Beyond its Borders”.
The full text of the SCC Arbitration Rules may be found here:
http://www.sccinstitute.com/media/159828/final_draft_
arbitration-rules-17112016.pdf.
Scholarly Work
The full text of the SCC Expedited Arbitration Rules may be Literature: 2016 Noteworthy Scholarly Works
found here: http://www.sccinstitute.com/media/161463/final_ M.E. Ancel, P. Deumier, M. Laazouzi, Droit des contrats
draft_expedited-rules-23112016.pdf. internationaux, Sirey, 2016; P. Blanco-Morales Limones, F. F.
Garau Sobrino, Mª L. Lorenzo Guillén, F. J. Montero Muriel
Associations and Events (eds), Comentario al Reglamento (UE) nº 1215/2012 relativo a la
competencia judicial, el reconocimiento y la ejecución de resoluciones
Hague Academy of International Law judiciales en materia civil y mercantil, Thomson Reuters-Aranzadi,
The Hague Academy of International Law will hold its 2017 2016; M.B Benedettelli, Five Lay Commandments for the EU
Summer Courses between July and August. The Private Private International Law of Companies, Yearbook of Private
International Law courses are scheduled from 31 July to 18 International Law, XVII - 2015/2016, 209; M. Hook, The Choice
August. Closing date for application: 1st March 2017. of Law Contract, Hart Publishing, 2016; A. Leandro, A First
The full text of the programme may be found here: Critical Appraisal of The New European Insolvency Regulation, Il
http://www.hagueacademy.nl/wp-content/uploads/2013/11/ Diritto dell’Unione Europea, 2016, 215; Leible (ed. by),
PROGRAMME-2017.pdf. General Principle of European Private International Law, Wolters
Kluwer, 2016; P. Mankowski, M. F. Müller, J. Schmidt, EuInsVO
EUFam’s Project Launched 2015. Europäische Insolvenzverordnung 2015. Kommentar, Beck,
In 2016 the Project ‘Planning the future of cross-border 2016; E. Márton, Violations of Personality Rights through the
families: a path through coordination’ (EUFam’s) has been Internet – Jurisdictional Issues under European Law, Nomos / Hart
launched with the aim to research European Union Private Publishing, 2016; G. Moss, I. Fletcher, S. Isaacs (eds), Moss,
International Law topics of family and successions, as well Fletcher and Isaacs on the EU Regulation on Insolvency Proceedings,
as disseminate project findings, news, and general 3rd edn, OUP, 2016.
information on this matter. The Project hosts a case-law
33
Fall 2017
OCEANIA —Editor: Jeanne Huang The TPP was signed by New Zealand in February 2016. The
Trans-Pacific Partnership Agreement Amendment Bill was
introduced to the House of Representative in May 2016. The
Bill was passed on 15 November and received Royal Assent
on 21 November. In March 2017, New Zealand agreed with
other remaining TPP members that their senior trade
officials would consider next steps for the TPP in the coming
months.
New Zealand’s policy of the TPP can be found here: https://
www.tpp.mfat.govt.nz/.
International Tribunals
Australia won Philip Morris v Australia on the jurisdiction
ground
Philip Morris Asia Limited, a company incorporated in Hong
Kong, brought an arbitration against Australia alleging that
Australia’s enactment and enforcement of the Tobacco Plain
The year of 2016 has witnessed significant interplay between
Packaging Act 2011 and the implementing regulations known
private international law in Oceania and that in foreign
as Tobacco Plain Packaging Regulations 2011 expropriated
jurisdictions. The US withdrawal from the TPP has caused
its ability to use certain intellectual property. The arbitration
Australia and New Zealand to suspend the relevant
was commenced pursuant to the Australia-Hong Kong
domestic implementation legislation. The bankruptcy of
Bilateral Investment Treaty (BIT). In December 2015, a PCA
Hanjin, the world’s ninth-largest container shipping
ad hoc investment tribunal issued its Interim Award on
company, in Seoul has called the Federal Court of Australia
Jurisdiction and Admissibility. The tribunal held that the
to resolve the difficult intersections between international
claims were inadmissible because Philip Morris abused its
insolvency law, Australian Corporations Act and Admiralty
right by changing its corporate structure mainly to gain the
Act. Courts, arbitration institutions and legislators in
protection of the BIT when it foresaw its dispute with
Oceania have considered whether and how to catch up with
Australia.
the development of arbitration laws in foreign jurisdictions.
The full award can be found here: https://www.pcacases.
Philip Morris v Australia helps the further development of
com/web/view/5.
global tobacco control legal regime.
International Conventions National/State Legislation

New South Wales enacts harmonised rules for service of an
The implementation of the TPP remains unclear in Oceania
originating process and other documents outside of Australia
Australian signed the TPP and tabled its text and
The Uniform Rules Committee in the State of New South
accompanying National Interest Analysis in the Parliament in
Wales Australia approved the Uniform Civil Procedure
February 2016. The Joint Standing Committee on Treaties
(Amendment No 83) Rule 2016 to amend the Civil Procedure
released its report in November 2016 recommending that
Act 2005. The Rules regulates service outside of Australia
Australia should take binding treaty action to ratify the TPP.
with or without leave. It does not apply to service in New
However, considering the US withdrawal, in February 2017
Zealand of documents for or in certain trans-Tasman
the Senate Foreign Affairs, Defence and Trade References
proceedings.
Committee recommended that Australia should defer
The Uniform Civil Procedure Rule 2016 can be found here:
undertaking binding treaty action until the future of the TPP
http://www.legislation.nsw.gov.au/regulations/2016-755.pdf.
is clarified.
Australia’s policy of the TPP can be found here: http://dfat.
gov.au/trade/agreements/tpp/Pages/trans-pacific-partnership-
agreement-tpp.aspx.
34
Fall 2017
OCEANIA —continued from page 34 Australian court applies Australian Consumer Law (ACL) to
a contract even if its proper law is a foreign law
Australia considers amending the International Arbitration March 2016 in Australian Competition and Consumer Commission v
Act 1974 (the IAA) Valve Corporation, FCA applied ACL to Valve, an online
In March 2017, the Civil Law and Justice Legislation business incorporated in the US that had no staff and real
Amendment Bill was introduced into Australian Senate. This estate in Australia and hosted its website outside of
is an omnibus bill that proposes to amend the IAA as well Australia. The FCA held that the proper law of the contracts
as other Australian legislation. It intends to define between Valve and its Australian consumers was the law of
“competent court” in the IAA, clarify the evidence Washington State in the US, but Subsection 67 (b) of the ACL
requirements for enforcement of an arbitral award, was extended to the contracts regardless of the proper law.
modernize arbitrator’s powers to award costs, and clarify Moreover, the Court distinguished the common-law cause of
the application of the UNCITRAL Rules on Transparency in action approach and the application of ACL statutory test for
Treaty-based Investor-State Arbitration in Australia. where the conduct took place, and found that Valve was
The Civil Law and Justice Legislation Amendment Bill can be either conducting or carrying on business in Australia.
found here: http://www.aph.gov.au/Parliamentary_Business/ The full judgment can be found here: https://jade.
Bills_Legislation/Bills_Search_Results/Result?bId=s1057. io/j/?a=outline&id=459877.
New Zealand considers amending the Arbitration Act 1996 Fiji Court determines the conditions for application for leave
(the Act) to appeal to the Supreme Court to be consistent with English
In March 2017, the Arbitration Amendment Bill was case law-
introduced to the New Zealand Parliament to amend the Rugby is the most popular sport in Fiji. In 2016, the
Act. The Bill intends to recognize the binding effect of Supreme Court of Fiji handed down a judgment about the
arbitration clauses in trust deeds, to extend the sole and exclusive sponsorship of the Fijian provincial rugby
presumption of confidentiality in arbitration to a rebuttable tournament and the Fiji 7´s Team, which won the Gold
presumption of confidentiality in related court proceedings Medal for men´s sevens rugby at the 2016 Olympic Games.
under the Act, to clarify the grounds for setting aside an The Court found that this case is of great interest to the
arbitral award, and to specify the consequence of failing to public but is not a matter of great public importance
raise a timely objection to an arbitral tribunal’s jurisdiction. according to English case law. But it allowed the application
The Arbitration Amendment Bill can be found here: http:// for leave to appeal because this case raises “far-reaching
www.nzlii.org/nz/legis/bill/aab2017227/aab2017227.html. questions of law”.
The full judgment can be found here:
http://www.paclii.org/fj/cases/FJSC/2016/40.html.
National Case Law
Australian courts determine indemnity costs of unsuccessful
Australian court recognizes and a UAE DIFC monetary
challenges to enforcement of a foreign arbitral award
judgment
In two separate cases decided in 2016, FCA consider
In March 2016, the Supreme Court of New South Wales
whether to follow the Hong Kong approach, where a party is
recognized and enforced a judgment issued by the Dubai
entitled to its costs of responding to the challenge on an
International Financial Center Court (DIFC). It is the first time
indemnity basis by default if the other party unsuccessfully
that an Australian court recognized and enforced a UAE
challenges the enforcement of a foreign arbitral award in the
monetary judgment. The DIFC signed a Memorandum of
absence of special circumstances. The first case, Ye v Zheng
Guidance with the Supreme Court of New South Wales in
(No 5), was handed down in July. The Court found that the
2013 and with the Federal Court of Australia in 2014. The
respondent had never made an attempt to agitate any
full judgment can be found here.
legitimate ground to resist enforcement, so awarded the
https://www.caselaw.nsw.gov.au/decision/56eb8b6de4b0e71e
applicant its costs on a full and complete indemnity basis.
17f50695.
Although that “powerful considerations” might support the
For the special nature of the DIFC court see the Asia Section
Hong Kong approach, the Court stated that it was both
35
Fall 2017
OCEANIA —continued from page 35 The new rules can be found here: https://acica.org.au/acica-
rules-2016/.
unnecessary and inappropriate to decide this question in
this case. The second case is Sino Dragon Trading Ltd v Noble
Resources International Pte Ltd (No 2) decided in September. The
Court applied the law of the forum, Australian law, to Australian and New Zealand Society of International Law
determine whether the indemnity costs should be awarded. organized its 24th Conference in Canberra in June 2016. The
The Court held that an order for indemnity costs would be theme of the conference is “International Law of the
justified where an unsuccessful challenge was found not to Everyday: Fieldwork, Friction and Fairness.”
have reasonable prospects of success, whether or not the More information of the conference can be found here:
unsuccessful party knew or ought to have known this at the http://anzsil.org.au/event-2120456.
outset. This should be determined case by case rather than
setting up a default rule. Essentially the Court rejected the
Hong Kong approach. Recent Scholarly Work
The full judgments can be found here: https://jade.
Scholars in Oceania have published extensively on the topic
io/j/?a=outline&id=485995 and
of private international law in 2016. Typical examples include
https://jade.io/article/494844?at.hl=Sino+Dragon+Trading
Thomas Schultz & Jason Mitchenson, Navigating Sovereignty
+Ltd+v+Noble+Resources+International+Pte+Ltd.
and Transnational Commercial Law: the Use of Comity by Australian
Courts, 12 Journal of Private International Law 344-378
Australian court recognizes foreign rehabilitation proceedings
(2016); and KJ Keith, New Zealand Family Law and International
In November 2016, the FCA recognized the rehabilitation
Law - A Comment with Some Questions, 47 Victoria University of
proceedings of the Seoul Central District Court for Hanjin
Wellington Law Review 5–18 (2016), and Miranda Forsyth,
Shipping Co., Ltd in Tai-Soo Suk v Hanjin Shipping Co Ltd. This
The Challenges of Legal Pluralism in the Cook Island and Beyond:
judgment is made according to the UNCITRAL Model Law on
An Insight from Hunt and Tupou & Ors v Miguel, Cook Island Court
Cross-Border Insolvency, which is given force in Australia by
of Appeal, 19 February 2016, 2 Journal of South Pacific Law
the Cross-Border Insolvency Act (CBIA). The FCA recognized
27-43 (2016). ■
the Seoul proceedings as “foreign main proceedings” and
the custodian of Hanjin appointed by the Korean Court as a
“foreign representative” for the purposes of the CBIA.
Accordingly, the Court stays any enforcement of recovery
action against the Hanjin’s properties in Australia except
with the written consent of Hanjin or until further order of
the Court.
The full judgment can be found here: http://www.judgments.
fedcourt.gov.au/judgments/Judgments/fca/
single/2016/2016fca1404.
Arbitration Institutions
The Australian Centre for International Commercial
Arbitration (ACICA) revises its arbitration rules
ACICA is the major arbitration institution in Australia. The
new ACICA Arbitration Rules incorporating the Emergency
Arbitrator Provisions and the Expedited Arbitration Rules came
into effect in January 2016. As the first revision since 2011,
the new rules contain innovations in the areas of expedited
procedure, conduct of legal representation, consolidation
and joinder, law of arbitration agreement and overriding
objective.
36
Fall 2017
GLOBAL CONFLICT OF LAWS

—Editors: Cristián Giménez Corte & Javier Toniollo
As the readers of
Commentaries
Transnational Principles and
know, we present Soft Law
information on
new developments UNCITRAL adopts Model Law on Secured Transactions
on PIL related to On July 1, 2016, the United Nations Commission on
all five continents. International Trade Law (UNCITRAL) adopted the Model Law
However, in our on Secured Transactions. The main purpose of the Model
research, the edi- Law is to try to fill the gaps created by the multiplicity of
tors encountered different regimes on secured transactions around the world.
many new deve- In order to do this, UNCITRAL set up common rules and
lopments that were difficult to classify under any regional basic security standards applicable to all sort of transac-
category. As a result, we decided to classify them under a tions. It also provides a publicly accessible Registry, in which
new category: Global Conflict of Laws. The aim of this sec- notices of security interests can be registered to protect
tion is to present developments that are not necessarily third parties’ rights and to provide an objective basis to
linked to one particular region or country, but that are truly determine the priority of a security interest over the rights of
transnational or global. Under the heading Global Conflict competing claimants. As a Model Law, its enactment
of Laws, we include information on rules, regulations, judi- depends on the States’ willingness to co-operate with the
cial and quasi-judicial decisions that are global in their ori- international community and coordinate solutions towards
gin and global in their effect. In other words, rules and the achievement of transparency in cross-border transac-
regulations that are not produced by a national law-ma- tions. According to the official commentary, this Model Law
king process and do not have a determined territorial is based on the United Nations Convention on the
scope of application. Assignment of Receivables in International Trade, the
UNCITRAL Legislative Guide on Secured Transactions, the
Global Conflict of Laws issues include, of course, interna- Supplement on Security Interests in Intellectual Property
tional commercial arbitration, international investment and the UNCITRAL Guide on the Implementation of a
arbitration, and international sports arbitration. They also Security Rights Registry. For the treatment of security inte-
include transnational principles or rules issued by intergo- rests in insolvency, the Model Law relies on the recommen-
vernmental organizations such as Unidroit, non-govern- dations of the UNCITRAL Legislative Guide on Secured
mental “formulating agencies” such as the International Transactions and the UNCITRAL Legislative Guide on
Chamber of Commerce, and international treaties adopted Insolvency Law.
by international organizations such as the United Nations. For more information, visit: http://www.unis.unvienna.org/
Global Conflict of Laws issues included also decisions ren- unis/en/pressrels/2016/unisl233.html.
dered by national or regional courts that may have a glo-
bal impact. UNCITRAL adopts a text on Online Dispute Resolution
(ODR)
Global Conflict of Laws is of the opinion that PIL, as a On July 2016, UNCITRAL adopted Technical Notes on Online
science, can offer tools and techniques to solve problems Dispute Resolutionin response to the online cross-borders
of coordination and legitimation of different legal sources transactions’ growth. The purpose of this soft law instrument
and authorities, even when such sources are not State is to assist and provide buyers and sellers with legal tools
laws and such authorities are not State courts. that allow them toresolve their disputes in a simple, fast,
flexible and secure manner, without the need of physical
presence at a meeting or hearing.
37
Fall 2017
GLOBAL CONFLICT OF LAWS —continued from page 37 Transnational Case Law

For more information, visit: http://www.unis.unvienna.org/ 2016 Rio de Janeiro Olympic Games, Sports Arbitration,
unis/en/pressrels/2016/unisl235.html. and Lex Sportiva
During the last Olympic Games, the ad hoc Division of Court
ASADIP adopts Principles regarding the Right of of Arbitration for Sports (CAS) seated in Rio and heard a
Transnational Access to Justice number of cases involving athletes from all over the world.
On November 2016, the American Association of Private The jurisdiction of the ad hoc division is based on individual
International Law (ASADIP, in Spanish) adopted a set of arbitration agreements. All participants, -including athletes,
Principles which the main purpose is to make effective the coaches, officials and sports federations, have to sign as a
human right of access to justice at the transnational level. condition of their participation in the Games, an agreement
According to this soft law document, the aim of these prin- conferring exclusive jurisdiction on the CAS panels for dis-
ciples is to improve the legal and natural persons right to putes arising in connection with the Games. The CAS has
access to justice in cross-borders disputes, by establishing competence to hear cases related to team selection, national
theoretical and procedural guidelines and basics standards eligibility, fulfillment of registration requirements, application
inspired and enshrined in international human rights texts and interpretation of competition rules, advertising, and ath-
and in common and shared rulesset out in modern lete misconduct, including doping. During the Rio Games, a
national constitutions. record of 28 cases were heard, including 16 cases related to
The novelty of these “Principles regarding the Right of the status and eligibility of Russian athletes. Moreover, an ad
Transnational Access to Justice” might be summarized as fol- hoc Anti-doping division was established for the first time at
lows: a) compilation and systematization of the general prin- this Olympics, dealing with doping related matters arising at
ciples applicable to cross-borders disputes; b) establishment the Games as a first-instance court.
of inter-jurisdictional cooperation as an international obliga- For a full account on the structure and functions of the CAS
tion of states, with a view to guaranteeing people’s right to and its jurisprudence see http://www.tas-cas.org.
access to justice in an expeditious, effective, equitable, and
timely manner, c) granting judges with enough powers as to The Court of Arbitration for Sport (CAS)
intervene and decide cases taking into account the particula-
rities of each case. Article 61 of the Olympic Charter states that “any
For the full text of the Principles and more information, see: dispute arising on the occasion of, or in connection
http://www.asadip.org/v2/wp-content/uploads/2016/10/ with, the Olympic Games shall be submitted exclu-
TRANSJUS-texto-final.pdf. sively to the [CAS], in accordance with the Code of
Sports-Related Arbitration. Most International
The International Chamber of Commerce amends Rules on Federations have already recognized the jurisdiction
Arbitration to improve transparency and efficiency of CAS for the arbitration of some disputes and all
On November 4, 2016, the International Chamber of signatories to the World Anti-Doping Code have reco-
Commerce (ICC) amended its Rules of arbitration in order to gnized the jurisdiction of CAS for doping rules viola-
improve transparency and efficiency within the arbitral pro- tion matters. Because the CAS is a Swiss arbitration
cess. This modification has entered into force since March organization, its decisions may be appealed before
1st, 2017. According to the official statement, the Rules are the Federal Supreme Court of Switzerland. However,
applicable to the disputes that involve less than $2 million; the Swiss Court will not often consider the merits of
however, it offers the possibility to opt-in for higher dis- the dispute and will limit to resolve whether procedu-
putes. With the goal of making the process more expedi- ral requirements were met or whether the award was
tious, the ICC decided that there are no longer Terms of compatible with public policy.
Reference and the tribunal has the discretion to decide the
case on documents only, with no hearing, no requests to CJEU: EU regulation on animal testing ban applies outside
produce documents and no examination of witnesses. the EU.
For more information, see: https://www.asil.org/blogs/inter- On September 21, 2016, the Court of Justice of the
national-chamber-commerce-modifies-rules-improve-trans- European Union decided that “Article 18(1)(b) of Regulation
parency-and-efficiency-november-4.
38
Fall 2017
GLOBAL CONFLICT OF LAWS —continued from page 38 For more information about this multifaceted activity, visit:
http://www.mkik.hu/en/magyar-kereskedelmi-es-iparkamara/
(EC) No 1223/2009 of the European Parliament and of the uncitral-and-arbitration-15414.
Council of 30 November 2009 on cosmetic products must
be interpreted as meaning that it may prohibit the placing
on the European Union market of cosmetic products contai- Scholarly Work
ning some ingredients that have been tested on animals out-
We would like to mention the following studies that
side the European Union, in order to market cosmetic
approach PIL from a global perspective:
products in third countries, if the resulting data is used to
Van Loon, J. H. A., “The Global Horizon of Private International
prove the safety of those products for the purposes of pla-
Law (Volume 380)”, in: Collected Courses of the Hague
cing them on the EU market.”
Academy of International Law, The Hague Academy of
For the full decision see http://curia.europa.eu/juris/docu-
International Law.
ment/document.jsf?text=&docid=183602&pageIn-
Encyclopedia of Private International Law, Edward Elgar,
dex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&-
2017.
cid=121869.
Gilles Cuniberti, Conflict of Laws: A Comparative Approach.
Text and Cases, Edward Elgar, 2017.
United Nations: U.S. Court Upholds United Nations’
Gimenez-Corte, Cristián, La Función Del Derecho Internacional
Immunity in Cholera Suit
Privado En La Era De La Globalización: Un Manifiesto Jurídico (The
On August 18, 2016, the US Second Circuit Court of Appeals
Function of Private International Law in the Era of
in New York upheld the United Nations' immunity from a
Globalization: A Legal Manifesto) (December 3, 2016).
damage claim filed on behalf of 5,000 cholera victims who
Papeles del Centro de Investigaciones, FCJyS, UNL, 2016.
asserted that the UN was responsible for an epidemic of the
Available at SSRN: https://ssrn.com/abstract=2943103.
cholera disease in Haiti. The Appeals Court affirmed a lower
Horatia Muir Watt, Conflicts of laws unbounded: the case for a
court's January 2015 dismissal of a lawsuit brought in the
legal-pluralist revival, Transnational Legal Theory Vol. 7 , Iss. 3,
worst outbreak of cholera in recent history. The UN, as
2016.
defendant, successfully alleged that it enjoyed immunity
Whytock, Christopher A. (2016) "Conflict of Laws, Global
under a 1946 Convention on the Privileges and Immunities
Governance, and Transnational Legal Order," UC Irvine
of the UN, and therefore could not be brought before natio-
Journal of International, Transnational and Comparative Law: Vol.
nal judges.
1, 117. Available at: http://scholarship.law.uci.edu/ucijil/
This decision came shortly after the UN deputy spokesman
vol1/iss1/6. ■
referred to the United Nations' "own involvement" in the
introduction of cholera to Haiti.
For the full text see http://law.justia.com/cases/federal/appel-
late-courts/ca2/15-455/15-455-2016-08-18.html.

UNCITRAL and Arbitration
On the occasion of the celebration of the 50thAnniversary of
the creation of the United Nations Commission on
International Trade Law (UNCITRAL), the Arbitration Court
attached to the Hungarian Chamber of Commerce and
Industry held, on November 17th, 2016, an international pro-
fessional conference named“UNCITRAL and Arbitration”.
The workshop brought together renowned foreign and domes-
tic experts who developed different topicsrelated to the field
of International Arbitration, such as international trade, inter-
national finances and international arbitration itself.
39

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Editors’ Notes —continued from page 1

Editors’ Notes —continued from page 2

Co-Chairs Notes AFRICA

As you will see from the following pages, our fantastic

This newsletter comprises just one of the several activities

During the last academic year PILIG hosted two successful

Africa —continued from page 5 National Legislation

Africa —continued from page 6 now combined with a guarantee of non-discrimination:

Africa —continued from page 7 OHADA Case Law

National Case Law Tunisian Cour de Cassation on the Indirect Jurisdiction of

Africa —continued from page 10 ASIA —Editors: Béligh Elbalti,

Association pour la Promotion de l'Arbitrage en Afrique

Asia —continued from page 11 of Intercountry Adoption Convention (Hague Adoption

Asia —continued from page 12 National Case Law

Asia —continued from page 15 AMERICAS

Mexico: Court Reflects on Conflict of Law Rules Associations & Events

AMERICAS: Central, South America & North America

Mexican Academy of Private International and

2016 PILIG Prize A Relational Feminist Approach

International Surrogacy Arrangements The European Account Preservation Order

EUROPE —continued from page 28 EU and European Case Law

EUROPE —continued from page 30 National Reports

National Case Law United Kingdom: Court of Appeal on Choice of Court

International Conventions National/State Legislation

GLOBAL CONFLICT OF LAWS

GLOBAL CONFLICT OF LAWS —continued from page 37 Transnational Case Law

Associations and Events

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