Tag: Private International Law

Call for Applications: Nygh Internship, 30 January 2022

Editors ILA Updates

The Australian Institute of International Affairs (AIIA) and the Australian Branch of the International Law Association (ILA (AB)) are pleased to present the Peter Nygh Hague Conference Internship. The award will support a post – graduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law (The Hague Conference) in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses. Applications for the 2022 Nygh Internship are now open. Please see below for more information about the award and how to apply.

The Internship

The award will provide a post-graduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation. A melting pot of different legal traditions, The Hague Conference aims for the ‘progressive unification’ of the various State private international law rules. The work of The Hague Conference involves finding internationally agreed approaches to jurisdiction of courts, applicable law and the recognition and enforcement of judgments. This is achieved through the development and servicing of multilateral legal conventions which respond to global needs in the areas of international commercial law and banking, international civil procedure, international protection of children, international family and family property relations, international legal co-operation and litigation as well as international judicial and administrative co-operation. Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The Conference’s working languages are English and French. The successful intern will work for 5 to 6 months under the direction of the Secretariat assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.

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The Proposed Reform of the Chinese Arbitration Law and its Impacts on Foreign Parties: Part I – Shu Zhang and Peng Guo

Editors Analysis, Articles

The Chinese lawmaker, being the Ministry of Justice of the PRC, recently published a draft revised New Chinese Arbitration Law for public consultation, which suggests a series of major changes. While most of the changes are in line with the international practice, there are also significant deviations from the commonly accepted practice suggested by the UNCITRAL Model Law. This series aims to highlight the changes and briefly evaluate its impact on foreign parties in dealings with Chinese parties, who may face potential arbitration proceedings in China. This is part one of a two-part series.

The Chinese Arbitration Law (1994) (CAL) was drafted and enacted more than 20 years ago and has been criticised for its out-of-date regime governing the practice of arbitration in China. After years of debates and discussions, the amendment of the CAL was finally prioritised by the Standing Committee of the National People’s Congress and the State Council. On 30 July 2021, the Chinese Ministry of Justice circulated the draft of an Amended Chinese Arbitration Law for public consultation (‘the Draft’), which marks a significant step towards its formal amendment. On the one hand, a number of important features of contemporary international arbitration practice are now accepted by the Draft, demonstrating its aim to be in line with the international practice. On the other hand, some distinctive Chinese features in the Chinese arbitration system are maintained and developed, furthering its divergence from international expectations. Both of these aspects would have significant impacts on foreign parties who might consider, or who might be subject to, China-related arbitration. The authors will highlight some important features and briefly discuss their impacts on foreign parties conducting arbitration in China in this two-part series.

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Event: ‘Private International Law and Intellectual Property: The ILA Kyoto Guidelines’, 15 October 2021

Editors Events

In 2020, the 79th Conference of the International Law Association passed the Resolution 6/2020 and adopted the Guidelines on Intellectual Property and Private International Law (‘Kyoto Guidelines’).

The Guidelines are part of international efforts to establish a cooperative global system for jurisdiction, choice of law, and judgment recognition and enforcement in transnational IP disputes. They apply to civil and commercial matters involving IP rights that are connected to more than one State.

This webinar, jointly sponsored by the Centre for Asian and Pacific Law at the Sydney Law School and International Law Association (Australian Branch), invites distinguished professors from Japan, Republic of Korea and Australia to discuss the contents, implications, and challenges of the Guidelines in regulating complicated IP disputes.

At the webinar, Professor Toshiyuki Kono (Kyushu University, Japan) will be speaking about the background and significance of the Kyoto Guidelines; Professor Gyooho Lee (Chung-Ang University, Republic of Korea) will be speaking about the laws applicable to transferability of an intellectual property right and employment contracts under the Kyoto Guidelines; and Professor Vivienne Bath (Sydney Law School, Australia) will be speaking about the Kyoto Guidelines and injunction in transnational standard essential patents and parallel patent infringement disputes. The panel will be moderated by Associate Professor Jie (Jeanne) Huang (Sydney Law School, Australia).

The event will be held on Friday 15 October 2021 from 3:00 pm to 4:00 pm AEDT on Zoom. Registration is essential and through Eventbrite.

The conflicts issue in transnational business human rights claims, and a possible way forward under Rome II – Josephine Dooley

Editors Analysis, Articles

This article assesses the recent proposal by the European Parliament’s Committee on Legal Affairs to allow a plaintiff bringing a human rights claim against an EU company in an EU Member State, instead of their home State, to be able to select the law applicable to the claim. An international human rights law perspective is applied to the proposed solution to a growing private international law issue. 

In what forum can a victim of a human rights violation committed by a multinational enterprise most effectively seek reparations? A recent proposal for the European Union (EU) on this issue has caused quite a stir, and Switzerland has just voted against holding businesses liable for human rights and environmental claims in a referendum.

Despite the existence of international human rights law instruments addressing corporate misconduct and human rights, namely the United Nations (UN) Guiding Principles on Business and Human Rights (‘UN Guiding Principles’), under general international law multinational companies are subject to rights but not obligations. International instruments, therefore, cannot impose international human rights obligations on such actors. 

Accordingly, domestic law, including its rules of private international law, determine to what extent corporations may be held accountable for human rights violations. Human rights claims against multinational enterprises are typically actioned as a claim in tort against the subsidiary company as well as the parent company, which is ordinarily incorporated in another State. Normally, being able to claim against the parent company is fundamental in ensuring victims receive proper reparations, as the parent company is typically the defendant with sufficient assets. Accordingly, victims are increasingly commencing proceedings in the courts of the jurisdiction in which the parent company is incorporated – typically Western jurisdictions such as the United Kingdom (UK), the Netherlands and Australia.

The success of a claim heard by a court of the parent company’s domicile is greatly influenced by how that court determines two questions of private international law: (i) should the court exercise jurisdiction over the claim; and (ii) what law should be applied to determine the claim?

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Event: COVID-19 and Private International Law, 14 May 2020

Editors Events

On 14 May 2020, the International Law Association (Australian Branch) will be hosting the second of its series of Zoom seminars on COVID-19, following the first seminar in April on COVID-19 and public international law.

This seminar will feature Associate Professor Jeanne Huang, University of Sydney Law School and Member of the International Law Association (Australian Branch), who will be speaking on collecting evidence abroad by video link under the Hague Evidence Convention and/or domestic laws, and Professor Vivienne Bath, University of Sydney Law School, who will be speaking on private international law, mandatory rules and frustration of contract/force majeure (with particular application to China and Chinese contracts).

Each presentation will be approximately 10 mins, allowing 15-20 mins for responses to questions via the Zoom chat function.

The seminar will be held on Thursday 14 May 2020 from 5:00 pm to 5:45 pm Sydney time (GMT+10). The seminar will be open to members and non-members. To attend, you must RSVP here by Wednesday 13 May 2020 at 5:00 pm Sydney time (GMT+10). The meeting link will be sent through on Thursday morning prior to the seminar.

Subsequent seminars being planned for this series include COVID-19 and international commercial arbitration, human rights, and refugees. Details will follow!

The new Hague Convention: Aspirations of Certainty, Efficiency and Access to Practical Justice through the Recognition and Enforcement of Foreign Judgments – Xara Kaye

Editors Analysis, Articles

On 2 July 2019, the Member States of the Hague Conference on Private International Law (HCCH) formally adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Convention), a significant development in the private international law landscape. The aim of the Convention is to create greater legal certainty and efficiency, as well as provide a process for cost-saving and practical access to justice. While the Convention has been heralded as an important instrument that will fill a significant gap in private international law, its impact will be determined by the extent to which it is broadly adopted – an outcome which is not guaranteed.

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Reciprocal Recognition and Enforcement of Foreign Judgments in China: Breakthrough and Trend – Associate Professor Jeanne Huang

Editors Analysis, Articles, Opinion

Chinese Civil Procedure Law (CPL) provides that foreign judgments can be recognised and enforced according to reciprocity if no treaty is applicable. However, although Chinese judgments have been recognised and enforced in many countries without a treaty, China had never reciprocated before 2016.[1]Since 2016, Chinese courts unprecedentedly recognised and enforced foreign monetary judgments based on de facto reciprocity. This spurs rich literature with mixed views about the future direction of reciprocity-based judicial recognition and enforcement (JRE) in China.[2] This post aims to add to the current debate from two aspects. First, it tries to answer the doubts in contemporary literature about whether the two foreign judgments recognised and enforced in 2016 and 2017 are fortuitous. Second, it addresses the question of what the trend of the Chinese reciprocity-based JRE law might be.

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The Growing Private International Law Community: Report from the Conflict of Laws Section of the Society of Legal Scholars Conference, September 2018, Queen Mary University of London – Michael Douglas

Editors Analysis, Articles, ILA Updates

Globalisation has altered the makeup of the work of domestic courts all around the world. Civil litigation is increasingly cross-border. Yet despite the frequent recognition that private international law (conflict of laws) is increasingly important, the subject is still a bit of a niche, at least in Australia. It is a compulsory subject at Sydney Law School but many other law schools do not offer it at all. A handful of Australian academics specialise in the subject, as a handful of barristers hold themselves out as specialists. Happily, that smallish circle is steadily growing.

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Interview with William Brydie-Watson, Legal Officer at Unidroit – Nandini Bajaj

Editors Articles, Opinion

I recently had the opportunity to interview William Brydie-Watson, a legal officer at the International Institute for the Unification of Private Law (Unidroit). Unidroit was established in 1926 as an auxiliary body for the League of Nations, and then reformed in 1940 under the Unidroit Statute. Its purpose is to study and develop needs and methods for modernising, harmonising, and coordinating private law between States, with a focus on commercial law. Mr Brydie-Watson oversees the development of several of Unidroit’s current legislative projects, acts as Unidroit’s representative to APEC, manages the Unidroit Foundation as well as supervising interns and research scholars at Unidroit.

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The Treatment of Bitcoin across Different Jurisdictions – Anja Kantic

Editors Analysis, Articles, Opinion

Bitcoin has taken the world by storm as the most popular cryptocurrency. Bitcoin is a means of peer-to-peer transacting with no middleman institutions or banks, no transaction fees and no delay in transfer between parties all around the world. This ease and convenience makes it a popular alternative to conventional banking, in spite of its fluctuating and volatile value.

It is useful to explore the treatment of Bitcoin across different jurisdictions in order to understand how it functions and how it will affect transacting in the future.

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