Recueil des cours, Collected Courses, Tome 423

Erscheinungsjahr 2022
ISBN: 978-90-04-51411-9
Verlag: Brill Academic Publishers

Buch, Englisch, Band 423

Reihe: Collected Courses of The Hague Academy of International Law - Recueil des cours

The Growth, Challenges and Future Prospects for Investment Dispute Settlement, by M. KINNEAR, Vice president of the World Bank Group.

“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?, by M. WELLER, Professor, Universität Bonn.

“Mutual trust” has become the central justification of the EU to drive its private international law forward – the reason why this Course undertakes to explore the theoretical potential of a trust perspective on private international law. In a first step, the opaque term of trust is deconstructed in an interdisciplinary analysis. The results are connected with fundamentals of private international law. The central finding is that private international law builds on the dichotomy of trust and control: how far should foreign judgments, foreign law and other foreign judicial acts be integrated – “trusted” – within the domestic administration of justice? This question must be answered by each and every legislator and each and every court, in particular by those that strive for economic and complementing judicial integration. Recurring tools of trust management can be identified. How do regional integration communities use and fine-tune these tools for their private international law and what are potential explanations from their history, their economics and their legal cultures? Four communities, selected from different parts of the world, are presented under this perspective, ordered in a series towards growing intensities of mutual trust: the ASEAN, the CEMAC, the MERCOSUR, and the EU. The Course comes to the conclusion that trust is, must, and can be managed and dosed according to the respective conditions and contexts, but no matter where we are: to trust or not to trust – that is the question of private international law, for regional integration communities and beyond.

Autoren/Hrsg.

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht

Inhaltsverzeichnis

The Growth, Challenges and Future Prospects for Investment Dispute Settlement, by M. KINNEAR, Vice president of the World Bank Group.

Table of Contents:

Chapter I. Introduction 17

Chapter II. Why do we have ISDS? 21

Chapter III. Subsequent growth of ISDS: considering the trends 24

Chapter IV. What can be expected for the future? 32

“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?, by M. WELLER, Professor, Universität Bonn.

Table of Contents:

Chapter I. Introduction 49

Chapter II. Private international law: a matter of trust management 54

A. Trust 54

1. Trust produces expectations about the future 55

2. Trust concerns expectations about another person’s behaviour. 56

3. Trust entails reasoned expectations in a state of incomplete information 57

4. Trust establishes a cooperative relation between trustor and trustee 58

5. Trust entails powers of the trustee 59

6. Trust entails risks for the trustor 60

7. Trust nevertheless appears as the better option 61

“Organisational” trust 62

8. “Fiduciary” trust 66

9. “Mutual” trust 67

10. “Trust management” 67

B. Private international law as trust management 68

1. Trusting foreign judgments 69

(a) Total control: no effects of foreign judgments at all 70

(b) Révision au fond 72

(c) Action of debt upon a legal obligation from the foreign judgment (“doctrine of obligation”) 74

(d) Request for giving effects to one’s own judgment abroad by letter rogatory 79

(e) Far-reaching trust and residual control via exequatur proceedings 86

(f) “Full faith and credit” among federal states 87

(g) Full trust: no “foreign” judgments anymore within the common area of justice 90

2. Trusting other foreign judicial sovereign acts 91

(a) Authentication of foreign documents 91

(b) Service of documents abroad 96

(c) Taking of evidence abroad 99

3. Trusting foreign law 101

(a) The formative trust element in Savigny’s conceptualisation. 102

(b) Trust management in practice: Examples from the EU 107

(i) Article 3 Rome I Regulation: Only “state” law eligible as lex contractus 107

(ii) Articles 6 and 8 Rome I Regulation: “Favourableness tests” 109

(iii) Article 9 Rome I Regulation: “Internationally mandatory rules” 109

(iv) Article 10 Rome III Regulation: Cláusula de rechazo. 110

(v) Public policy 112

4. Trusting foreign jurisdictions to adjudicate 114

5. Obligation of a state to optimise its trust management 115

C. Conclusion: To trust or not to trust – that is the question of private international law 115

Chapter III. Regional integration communities and their private interna- tional law 117

A. A challenge for comparative private international law 118

1. Tertium comparationis: Trust management among the parti- cipating states 118

2. Focus on community efforts on private international law 119

3. Putting community efforts of a regional integration community into context 120

4. Assessing community efforts for private international law in detail 120

B. Observations from comparative regional integration studies 121

C. Observations from economic integration research 124

D. Observations from the HCCH’s instruments 133

E. Conclusion: The regional integration communities under scrutiny in the following chapters – ASEAN, CEMAC, MERCOSUR, EU 138

Chapter IV. Association of Southeast Asian Nations 143

A. Brief history 143

B. Basics of political, economic and social context 144

C. Basic institutional structure of the community 148

D. Community efforts towards market integration 150

E. Community efforts for judicial integration 153

F. Transregional initiatives on judicial integration 156

1. HCCH Conventions and HCCH Asia Pacific Regional Office. 156

2. The “Asian Principles on Private International Law” 158

3. The UN 2019 Singapore Convention on Mediation 161

4. The Asian Principles for the Recognition and Enforcement of Foreign Judgments 162

G. Selected features of the national laws in the region 163

1. Contrasting national regimes within ASEAN Member States. 163

2. China and its One Road One Belt Initiative 170

(a) Basics of political, economic and social context 171

(b) Efforts for judicial cooperation 172

(i) Pre-OBOR: De facto reciprocity 172

(ii) SPC’s 2015 opinions 177

(iii) 2nd China-ASEAN Justice Forum 2017 179

(iv) SPC’s 2019 opinions 180

(v) Conclusions 181

H. Conclusions 182

Chapter V. Central african economic and monetary community 184

A. Brief history 184

B. Basics of political, economic and social context 185

C. Basic institutional structure of the community 189

D. Community efforts towards market integration 194

E. Community efforts for judicial integration: The CEMAC 2004 Agreement 196

1. “Confiance mutuelle est la fondation” 196

2. Overview 197

3. Title V: “De l’Exéquatur” 197

4. Article 14 (1): Indirect jurisdiction according to the rendering court’s lex fori 198

5. Counterpoint: OCAM 1961 Convention on Judicial Coope- ration – indirect jurisdiction according to autonomous standards
of the Convention!.199

6. Article 14, Nos. 2 to 5: Classical trust management………….201

7. Articles 15 to 17: Enforcement – concurring harmonisation by OHADA law…………….202

8. Conclusions……………202

F. Transregional treaty law/initiatives on judicial integration………….203

1. OHADA………….203

(a) Institutional framework………….204

(b) OHADA v. CEMAC: Supremacy or no supremacy?.205

(c) Harmonisation of “business law” and OHADA efforts for judicial cooperation…………….206

(d) Arbitration Uniform Act…………….208

(e) Uniform Act on Mediation……………….209

(f) Uniform Act on Facilitated Enforcement of Uncontested Money Claims ……………. 211

2. (The absence of) Hague Conventions……………….214

G. Conclusions…………….215

Chapter VI. El mercado común del sur ………….217

A. Brief history………….217

B. Basics of political, economic and social context………………218

C. Basic institutional structure of the community………….220

D. Community efforts towards market integration……………227

E. Community efforts for judicial integration………………….230

1. Rich and fascinating history: From Lima to Montevide…………….230

2. Sophisticated pre-existing transregional judicial integration: The CIDIP Conventions…………….234

3. The Protocol of Las Leñas on judicial cooperation 1992………….235

(a) History: Including Brazil in the judicial cooperation of the region……………….236

(b) Overall objective: “Reciprocal advantages”…………237

(c) Central element of trust management: Central Authorities….238

(d) Free access to justice….239

(e) Classical state-to-state judicial cooperation via letters rogatory….240

(f) Even recognition and enforcement of judgments via letters rogatory….241

(g) Letters rogatory including elements of trust management from exequatur proceedings….243

(i) Authentication, transmission, translation….244

(ii) Indirect jurisdiction….248

(iii) Finality, public policy, conflicting judgments….250

(h) Facilitated ascertainment of foreign law…….251

(i) Coordination with competing instruments….252

4. Other MERCOSUR Instruments….254

F. Transregional treaty law/initiatives on judicial integration….255

1. CIDIP….255

2. HCCH….255

G. Conclusions….256

Chapter VII. European Union….260

A. Prehistory of mutual trust: The “German Union”….260

B. Brief history of the European Union….262

C. Basics of political, economic and social context….264

D. Basic institutional structure of the community….266

1. Transfer of sovereignty to the community….266

2. Regional system of protecting human rights….271

(a) ECJ Opinion 2/13 (2014): Mutual trust trumps human rights….272

(b) ECtHR, Avotinš v. Latvia (2016): Mutual trust does not (fully) trump human rights….273

(c) Is the EU reinventing the wheels of private international law? 276

3. Main organs 278

E. Community efforts towards market integration 281

F. Community efforts for judicial integration 287

1. Civil matters: A political by-product of cooperation in criminal matters 287

2. Key to push for mutual trust: Broad supranational competence….289

3. The “Brussels regime” for the recognition and enforcement of judgments 294

(a) Starting point: Large national differences – restrictive approaches prevailing 294

(b) Trust management evolving under the Brussels regime….295

(i) Decentralised cooperation 295

(ii) Direct jurisdiction, combined with a strict lis pendens rule and strictly limited control 295

(iii) Automatic recognition ex lege 298

(iv) Simplified authentication of the foreign judgment….299

(v) Certificate by the rendering court 300

(vi) No révision au fond 302

(vii) Simplifying and ultimately abolishing exequatur proceedings 305

(viii) Grounds for refusal 308

(aa) Ordre public 309

(bb) Proper service of process in default proceedings….316

(cc) Irreconcilable judgments effective in the receiving Member State 319

(dd) Control of the choice of law in certain sensitive subject-matters 320

4. Other instruments 321

5. Monitoring the quality of the Member States’ administration of justice 324

G. Transregional treaty law/initiatives on judicial integration 325

H. Conclusions 328

Chapter VIII. General conclusions 331

Acknowledgements 357

Bibliography 358

Über Autor(innen)

Meg Kinnear, born 30 April 1957 in Montreal, Quebec, Canada.

Vice president of the World Bank Group and has been the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID) since 2009. As Secretary-General, she oversees a staff of seventy people, administering more than 300 investment arbitrations each year.

She was formerly the Senior General Counsel and Director General of the Trade Law Bureau of Canada (1999-2009). In November 2002, she was also named Chair of the Negotiating Group on Dispute Settlement for the Free Trade of the Americas Agreement. From October 1996 to April 1999, she was Executive Assistant to the Deputy Minister of Justice of Canada. Prior to this, she was Counsel in the Civil Litigation Section of the Canadian Department of Justice (June 1984 to October 1996).

She was called to the Bar of Ontario in 1984 and the Bar of the District of Columbia in 1982. She received a Bachelor of Arts from Queen’s University in 1978, a Bachelor of Laws from McGill University in 1981 and a Master of Laws from the University of Virginia in 1982.

Ms. Kinnear is currently Editor in Chief of the ICSID Review, has published numerous articles and books on international investment law and procedure, and is a frequent speaker on these topics. She is also a coauthor of Investment Disputes under NAFTA (published in 2006, updated in 2008 and 2009), Federal Court Practice (1988-1990, 1991-1992 and 1993-2009 annually) and 1995 Crown Liability and Proceedings Act Annotated (1994).

Matthias Weller, born 3 March 1971, Karlsruhe, Germany.
Alfried Krupp von Bohlen und-Halbach Professor for Civil Law, Art and Cultural Property Law. One of the two directors of the Institute for German and International Civil Procedure (Institut für deutsches und internationales Zivilverfahrensrecht) at the Rheinische Friedrich Wilhelms University Bonn, Germany.

Legal education at the Universities of Heidelberg and Cambridge, UK (St. John’s College) from 1992 to 1998. Joseph Story Fellow of Private International Law at the Harvard Law School 1998-1999, working with (the late) Story Professor Arthur Taylor von Mehren. Associate to a leading law firm in Frankfurt in 2001. Research Fellow at the Institute for Comparative Law, the Conflict of Laws and International Business Law at the University of Heidelberg from 2002 to 2010. Prize-winning PhD, supported by the German National Scholarship Foundation, supervised by Erik Jayme, on the public policy control of international choice of forum agreements.

Work on more than 100 appeal cases for an attorney admitted to the bar of the Federal Court of Justice (Bundesgerichtshof) in 2008 and 2009. Habilitation in 2011. Call to a chair for civil law, civil procedure and private international law at the EBS Law School, Wiesbaden, in 2011. Call to a chair for civil law, European private law at the European Legal Studies Institute of the University of Osnabrück 2013 (turned down). Vice Dean of the EBS Law School 2014-2018. Call to the Alfried Krupp von Bohlen und-Halbach professorship for civil law, art and cultural property law in 2018.

Lecturer in the Advanced Seminar Programme of the Hague Academy of International Law in 2008. German National Reporter to the International Academy of Comparative Law in 2014 and 2018. Research stay at the Harvard Law School in 2016. External Scientific Fellow of the Max Planck Institute Luxemburg for International, European and Regulatory Procedural Law in 2017. Legal Advisor for the European Parliament in 2017. Research grant by the Federal Government of Germany for working with a team on an international “Restatement of Restitution Rules for Nazi-Confiscated Art”, 2019-2024. Fellow of the Käte Hamburger Kolleg, Bonn, in 2021. Lecturer in the Hague Academy of International Law Advanced Course in Hong Kong (First Edition) in 2021 on “Current Trends on International Commercial Dispute Settlement”.

Member of, inter alia, the International Association of Procedural Law, the German Association for Comparative Law, the European Law Institute, the European Association of Private International Law and the German Arbitration Association. One of the two general editors of the blog https://conflictoflaws.net/. More than 200 publications and 100 presentations on private international law, international civil litigation and arbitration, transnational commercial law, private law, art and cultural property law.