Droit international général

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be hosting its XL Seminar entitled “The Migration of Persons and Capital within the Framework of Private International Law” at the Universidad Autónoma de San Luis Potosí (San Luis Potosí, Mexico) from 15 to 17 November 2017. The seminar will focus on a wide array of topics such as international legal co-operation, international family law, international contracts, and alternative dispute resolution.

Potential speakers are invited to submit a paper in Spanish, English, French or Portuguese by 1 October 2017. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available by mid-October. It is envisaged that registration for the seminar will be free of charge for all participants by sending a message to the e-mail included below. Please note that space is limited.

More detailed information will soon be made available on the Mexican Academy website http://www.amedip.org/amedip_mexico/.  Some information is already available on the Facebook page of the Mexican Academy, click here. Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

Applications for the 2018 Nygh Hague Conference Internship Award are open and close on 30 September 2017.

The award contributes towards the costs of a student or graduate of an Australian law school working for up to six months at the Secretariat of the Hague Conference on Private International Law in the Netherlands. It aims to foster Australian involvement in the work of the Hague Conference and is established in honour of the late Hon. Dr. Peter Nygh AM. The Australian Institute of International Affairs and the Australian Branch of the International Law Association sponsor the award.

Further details and information on how to apply is available at:  http://www.internationalaffairs.org.au/news-item/2018-nygh-internship-applications-open/.

Prof. Symeon C. Symeonides,Willamette University – College of Law, uploaded recently two articles on SSRN.

The Third Conflicts Restatement’s First Draft on Tort Conflicts Abstract

This Article discusses the first draft of the proposed Third Conflicts Restatement dealing with tort conflicts. The Draft’s most noteworthy features include: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common home state in loss-allocation conflicts; and (3) a rule giving victims of cross-border torts the right to request the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable,

The Draft is a vast improvement from the Second Restatement. It accurately captures the decisional patterns emerging in the more than forty U.S. jurisdictions that have joined the choice-of-law revolution, and which have been cast in statutory form in the successful codifications of Louisiana and Oregon. It strikes an appropriate equilibrium between certainty and flexibility and generally makes good use of the lessons of the revolution without reproducing its excesses.

Suggested citation:

Symeonides, Symeon C., The Third Conflicts Restatement’s First Draft on Tort Conflicts (August 5, 2017). Tulane Law Review, Vol. 92, 2017. Available at SSRN: https://ssrn.com/abstract=3014068

What Law Governs Forum Selection Clauses Abstract

This Article examines how American courts answer the question of which law governs the enforceability and interpretation of forum selection (FS) clauses in cases that have contacts with more than one state. It divides the cases into categories, depending on whether the question is litigated in the court chosen in the FS clause or in another court, and whether or not a choice-of-law clause accompanies the FS clause.

The Article finds that: (1) When the action is filed in the court chosen in the FS clause, all courts ap-ply the internal law of the forum state, without any choice-of-law analysis, both in interpreting the clause and in determining its enforceability; and (2) When the action is filed in another court, most courts apply the internal law of the forum (with or without a choice-of-law analysis) in determining whether the clause is enforceable and the law that governs the contract in interpreting the clause.

The Article explains why the distinction between interpretation and enforceability is necessary, and why the application of forum law to the question of enforceability is appropriate.

Suggested Citation:

Symeonides, Symeon C., What Law Governs Forum Selection Clauses (August 5, 2017). Louisiana Law Review, Vol. 78, No. 4, 2018. Available at SSRN: https://ssrn.com/abstract=3014070

In addition, mention needs to be made to his recent lecture at the Hague Academy, which was published June this year.

Private International Law: Idealism, Pragmatism, Eclecticism. General Course on Private International Law, Volume 384

More details can be found here.

The Max Planck Institute for Procedural Law in Luxembourg and the Vrije Universiteit Brussel are jointly organising a Conference on ‘Jurisdiction, Conflict of Laws and Data Protection in Cyberspace’ which intends to contribute to the ongoing discussion on the challenges to the protection of privacy in the Digital Age. The organizers describe this event as follows:

„Thanks to the Internet, people who are thousands of miles apart can effortlessly engage in social interactions, business transactions and scientific dialogue. As pointed in by John Perry Barlow in his famous ‘Declaration of the Independence of Cyberspace’, all these activities rely – more or less consciously – on sophisticated data-exchanges which take place ‘both everywhere and nowhere’, lying outside the borders of any particular State.

Against this backdrop, the regulatory challenge posed by the ephemeral nature of the information exchanged via the Web – and of the Web itself – is twofold. While Private International Law struggles to frame the allegedly borderless nature of cyberspace within the dominant discourses of law and territoriality, Data Protection Law has to reconcile the individuals’ fundamental right to privacy with the public interests connected to the processing of personal data.

The conference will explore some of the most controversial issues lying at the intersection between these two areas of law, by addressing, in particular, the problems arising in connection with cross-border telematics exchanges of data in the field of biomedical research and the contractual relationships stemming from social networking and the use of social media.“

The conference will take place at the Max Planck Institute in Luxembourg on Thursday, 12 October 2017. Participation is free of charge. For a list of speakers, the full programme and details on registration, please see here.

Following the formation of a specialized law drafting committee nearly 4 years ago, the implementation Act on cross border placement of children in accordance with Art. 56 Brussels IIa has been published in the Official State Gazette on June 23, 2017. The ‘Act’ constitutes part of a law, dealing with a number of issues irrelevant to the subject matter in question. The pertinent provisions are Articles 33-46 Law 4478/2017.

Art. 33 establishes the competent Central Authority, which is the Department for International Judicial Cooperation in Civil and Criminal Cases, attached to the Hellenic MoJ. Art. 34 lists the necessary documents to be submitted to the Greek Central Authority. Art. 35-37 state the requirements and the procedure for the placement of a child to an institution or a foster family in Greece. Advance payment for covering the essential needs of the child, and the duty of foreign Authorities to inform the respective Greek Central Authority in case of changes regarding the child’s status, are covered under Art. 38 & 39 respectively.

Art. 40 regulates the reverse situation, i.e. the placement of a Greek minor to an institution or a foster family within an EU Member State. A prior consent of the competent foreign State Authority is imperative, pursuant to Art. 41. The necessary documents are listed under Art. 42, whereas the procedure to be followed is explained in Art. 43. The modus operandi regarding the transmission of the judgment to the foreign Authority is clarified in Art. 44. A duty of the Prosecution Office for minors to request information on the status of the child at least every six months is established under Art. 45. Finally, Art. 46 covers aspects of transitional nature.

Prima facie it should be stated that the implementing provisions are welcome. In a country where not a single domestic tool has been enacted in the field of judicial cooperation in civil matters since the Brussels Convention era, this move allows us to hope for further initiatives by the government. However, swiftness is the key word in the matter at stake, and I wouldn’t be sure whether the procedure enacted would fully serve the cause.

Beyond that, there are some other hot topics related to the Brussels IIa Regulation and its implementation in Greece, the first and foremost being the rules and procedures for issuing the certificates referred to in Art. 39, 41 & 42 [Annexes I-IV of the Regulation]. Bearing in mind that the latter forms almost part of the court’s daily routine (at least in major first instance courts of the country), priority should have been given to an implementing act providing guidance on this issue, in stead of opting to elaborate on a matter with seemingly minimal practical implications.

Last but not least, it should be reminded that a relevant study has been released last year, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee of the European Parliament, which may be retrieved here.

The Permanent Bureau of the Hague Conference on Private International Law has recently issued a document illustrating the application of the 1996 Hague Child Protection Convention to unaccompanied and separated children.

The document, drafted in preparation of the upcoming meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, concludes that dialogue and collaboration “should be facilitated between authorities responsible for international co-operation in child protection matters – at both the domestic and international levels – with those responsible for immigration and asylum matters, with regard to the operation of the 1996 Convention in order to better assist unaccompanied and separated children across borders”.

The hope is also expressed, among other things, that “UNICEF and UNHCR officials will meet with government officials from some Central Authorities designated under the 1996 Convention to discuss and examine the application of the 1996 Convention to unaccompanied and separated children” and that “the global implementation of the 1996 Convention will assist with the on-going elaboration and future realisation of the United Nations Global Compact on Refugees and Global Compact for Migration”, referred to in the New York Declaration for Refugees and Migrants adopted by the General Assembly of the United Nations on 19 September 2016.

The editors of CoL decided to enlarge their team in order to increase the coverage of certain jurisdictions and regions. All (existing and new) editors are of course free and encouraged to report on interesting issues beyond their home jurisdictions.

Today we very warmly welcome on board (in alphabetical order):

Mukarrum Ahmed (UK)

Asma Alouane (France)

Apostolos Antimos (Greece)

Pamela Bookman (USA)

Mayela Celis (Hague Conference)

Adeline Chong (Singapore)

Rui Dias (Portugal)

Maria Hook (New Zealand)

Brooke Adele Marshall (Australia)

Ralf Michaels (USA)

Rahim Moloo (USA)

Marie Nioche (France)

Richard Oppong (Africa)

Ekaterina Pannebakker (Russia)

Sophia Tang (China/UK)

Zeynep Derya Tarman (Turkey)

Guangjian Tu (China) 

Please feel invited to click on the profiles of the new editors and learn more about them (if you do not know them already anyway). The existing editors are looking forward to working with their new colleagues on CoL and to seeing more of the intriguing field of the conflict of laws worldwide.

Giesela and Matthias

We have already alerted our readers to the preliminary reference triggered by the Estonian Supreme Court concerning violations of personality rights of legal persons committed via the internet (Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB; see our previous post here). Recently, AG Bobek has presented his conclusions in this case (see here). Anna Bizer, doctoral candidate at the University of Freiburg, has kindly provided us with her thoughts on this topic:

After the case eDate (C-509/09 and C-161/10), the CJEU will have to rule on the question of how Art. 7 (2) Brussels Ibis is to be interpreted when personality rights are violated on the internet for the second time. This case provides not only the first opportunity to confirm or correct the Court’s ruling on eDate, but also poses further questions:

1) Which courts have jurisdiction when the claimant seeks removal of the publication in question?
2) Should legal persons be treated the same way as natural persons under Art. 7(2) Brussels Ibis concerning personality rights?
3) If question 2) is to be answered in the affirmative, where is the centre of interest of a legal person?

AG Bobek holds the following opinion:
•In cases concerning personality rights violations on the internet, the place where the damage occurs is the place where the claimant has his centre of interest – regardless of whether the claimant is a natural or legal person. The same applies to claims of removal.
•The place where a legal person conducts its main professional activities is its centre of interest.
•It is possible that a person has more than one centre of interest.
•The mosaic approach as developed in case Shevill should not be applied to personality infringements on the internet at all.

The facts

The claimant is an Estonian company operating mostly in Sweden whose management, economic activity, accounting, business development and personnel department are located in Estonia. The company claims to have no foreign representative or branch in Sweden. A Swedish employers’ federation blacklisted the Estonian company for “deals in lies and deceit” on its website, what led to an enormous amount of comments capable of deepening the harm to the company’s reputation. All information and comments were published in Swedish and caused a rapid decrease in turnover, which was listed in Swedish kroner.
The Estonian company brought an action before Estonian courts asking for rectification of the published information and removal of the comments from the website as well as damages for pecuniary loss. The referring court doubted its jurisdiction based on the Brussels Ibis Regulation.

The Law

The basic principle in jurisdiction is that claims have to be brought before the courts where the defendant is domiciled (Art. 4 Brussels Ibis). According to Art. 7 Brussel Ibis, the claimant can also choose to sue before the courts of a member state that have special jurisdiction, i.e. in tort cases, the place where the harmful event originated as well as the place where the harm was suffered. In Shevill (C-68/93), the CJEU ruled that the courts of those member states have jurisdiction where the establishment of the publisher is located as well as the courts of the state in which the newspaper was published and where the claimant asserts to have suffered harm to his reputation. The latter jurisdiction is limited to the harm suffered in this member state. Concerning the violation of personality rights and reputation on the internet (eDate), the CJEU transferred the Shevill-ruling to online publications and added a third possibility: the courts of the member state where the victim has his centre of interest.

Reasoning of AG Bobek

AG Bobek answers the questions in three parts: First, he explains why the jurisdiction of the courts in the member state where the centre of interest is located should be open to legal persons as well (A). In a second step, he proposes a more strict interpretation of Art. 7 (2) Brussels Ibis compared to the case eDate and gives reasons why the mosaic approach should not be applied to personality infringements on the internet at all (B). In the last part, he aims at giving an alternative solution for claims for an injunction ordering the rectification and removal if the CJEU decides to continue with the mosaic approach (C).

(A) AG Bobek sees the main reason for creating the new head of jurisdiction in eDate in the protection of fundamental rights. Examining the case law of the CJEU and the ECtHR, he records that the personality and the reputation of legal persons are protected but restrictions are easier to justify that restrictions to rights of natural persons. In his opinion, fundamental rights should not be valued differently. Hence, the protection of fundamental rights of natural persons as intended by eDate should be at the same level as the protection of the fundamental rights of legal persons.
He recommends, however, that the CJEU puts aside the issue of fundamental rights since the Brussels Ibis regulation must be applied to determine jurisdiction as long as a legal person can sue the alleged violator of its personality rights or reputation according to the Member States’ law. Therefore, the CJEU has to answer the Estonian court’s questions regarding its jurisdiction irrespective of the level of protection.
As Art. 7 (2) Brussels Ibis is applicable to claims concerning the violation of personality rights of a legal person, a distinction between legal and natural persons within this regulation might only be justified if natural persons were typically the “weaker party”. AG Bobek objects to this general assumption mentioning the diversity of legal persons, on the one hand, and the growth of power that natural persons experience thanks to the medium internet on the other hand. He also points out that special jurisdiction does not aim to protect a weaker party but to “facilitate the sound administration of justice” (Recital 16 Brussels Ibis). Therefore, natural and legal persons should not be treated differently under Art. 7 (2) Brussels Ibis.

(B) According to AG Bobek, the mosaic approach is not adequate for cases concerning the violation of personality rights on the internet. As online publications can be accessed worldwide, lawsuits might be brought in all 28 member states. The mosaic approach is based on the idea that the harm in one member state can be measured. But unlike newspapers online publications do not have a number of copies that can be counted. Especially due to the easy access to machine translation it is impossible to measure the harm suffered in one member state. The opportunity to sue in 28 different states leads to the possibility of abuse and is also not compatible with the aim of predictability of jurisdiction. The mosaic approach also provokes difficulties to coordinate the different proceedings, especially concerning lis pendens and res judicata.
Therefore, AG Bobek proposes the following: The place where the event giving rise to harm took place should be the location of the person(s) controlling the information typically being identical with the domicile of the publisher. The place where the harm occurred should be “where the protected reputation was most strongly hit”, i.e. the person’s centre of interest.
According to AG Bobek, the centre of interest depends on “the factual and social situation of the claimant viewed in the context of the nature of the particular statement”. For natural persons, the habitual residence should be the basic element. Concerning legal persons, the centre of interest is in the member state where it “carries out its main professional activities provided that the allegedly harmful information is capable of affecting its professional situation”. That is supposed to be where the legal person records the highest turnover or, in the case of non-profit organisations, where most of the clients can be located.
AG Bobek argues that in respect of a specific claim, a (natural or legal) person can have more than one centre of interest. Consequently, a claimant with more than one centre of interest can choose between several member states. Each jurisdiction identified that way comprises the entire harm suffered.

(C) Concerning the rectification and removal of a publication, AG Bobek states that those claims are indivisible by nature because of the unitary nature of the source. AG Bobek argues that an alternative solution is actually impossible even if the CJEU prefers to continue with the mosaic approach.
The overall result remains that the mosaic approach is not an adequate solution for personality infringement on the internet.

Assessment of the AG’s opinion

AG Bobek raises some important issues concerning the infringement of personality rights on the internet. Following the AG’s opinion, the result will typically be that Art. 7 (2) Brussels Ibis allows the claimant to sue before the courts of the member state where he has his domicile. Thus, it creates a forum actoris that is the complete opposite of the basic rule of jurisdiction according to which the claimant has to sue at the domicile of the defendant (Art. 4 Brussels Ibis). Exceptions to a basic rule should be applied restrictively and only where the law explicitly allows doing so or where the aim of the law requires an exception.

Concerning the place where the event giving rise to harm took place, I can agree with AG Bobek. In internet cases, the crucial place of acting is normally the place where the allegedly infringing publication was uploaded. The disadvantage of this approach is that this place can be random and may lack the specific connection to the place. This applies especially when a natural person uploads the publication while travelling. Thus, the approach of the AG proposing the place where the person normally has control over the publication avoids jurisdiction based on a merely fugitive connection to a member state.

AG Bobek quite rightly points out that the mosaic approach is not adequate for the medium internet due to the worldwide accessibility. And since the European conflict-of-law system excludes personality rights and reputation (Art. 1(2)(g) Rome II), the mosaic approach applied to online cases can provoke forum shopping – especially if applied to claims for an injunction for rectification or removal.

The CJEU maybe should consider determining the centre of interest by other criteria that take more into account the specific circumstances of the case. Applying the definition of AG Bobek, the place where the harm occurs will almost always be where the claimant has his main administration (or his habitual residence in case of a natural person) irrespective to how strong the connection to another state may be. In the case at hand, the pecuniary damage and the economic consequence are probably in Estonia but the appearance of the company is mainly affected in Sweden. For example, the comments (mainly in Swedish and uploaded from Sweden) can not only be personality violations themselves but also show that the originally published information affected the reputation of the company in Sweden.

Furthermore, it is doubtful whether a person can have various centres of interest. It shifts the balance of interests that was tried to reach in eDate to the advantage of the claimant: the claimant may ask for the entire damages in another state than the state of the defendant’s domicile (advantage to the claimant) but he cannot choose between different states– and thus between different choice-of-law rules – as it would be possible under the mosaic approach (advantage for the defendant). Of course, there might be cases where the centre of interest is difficult to identify. The approach of the AG, however, implies that in those difficult cases the claimant might just choose. I am not sure if this really fosters predictability. Besides, it is somehow contradictory because the concept of the centre of interest is that even if the person-ality is affected in another state to a considerable extent, the courts in that state should not have jurisdiction.

I cannot agree with the AG concerning the relevance of fundamental rights. Of course, the level of protection is not relevant to the question whether the Brussels Ibis Regulation is applicable or not – including special jurisdiction. Nevertheless, the fundamental rights can influence how jurisdictional rules have to be interpreted. AG Bobek himself states that eDate can be understood as the protection of fundamental rights. Thus, the CJEU should consider whether the decision on eDate offering a claimant-friendly approach is owed to the fact that it is necessary to protect fundamental rights of the affected natural persons. If that is the case, the reasoning cannot simply be transferred to legal persons. It is rather necessary to check if the personality rights and the reputation of a legal person can justify the restrictions to the rights of the defendant, e.g. freedom of speech.

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabel Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:

Holger Fleischer, Spezialisierte Gerichte: Eine Einführung (Specialized Courts: An Introduction)

Specialized courts are on the rise. This introduction takes a look at different patterns and types of judical specialization both nationally and internationally. It also addresses potential advantages and disadvantages of a specialized judiciary.

Anatol Dutta, Gerichtliche Spezialisierung für Familiensachen (Specialized Courts for Family Matters)

In many jurisdictions, matters of family law are dealt with by specialized family courts. After outlining the different approaches from a comparative perspective (section I.), the article argues that a specialization in the area of family law is desirable. Family matters are not only self-contained from a substantive as well as procedural law perspective and clearly distinguishable from civil and commercial matters, but they are also characterised by a considerable degree of complexity which justifies judicial specialization (section II.). Furthermore, the dangers connected with specialized courts do not materialise in this area of law (section III.). However, a sensible specialization in family matters requires certain conditions as to the organisational structure and staffing of the competent courts (sections IV.1. and IV.3.). These conditions depend upon the role substantive family law assigns to courts. The paper argues that modern family law has abandoned its therapeutic attitude – family law matters are no longer regarded as a potential indication of pathologic families – therefore necessitating a legally oriented and conflict-solving judge rather than a court with a “therapeutic atmosphere”. Moreover, the jurisdiction of family courts has to be defined carefully – for example, regarding the question of whether matters of juvenile delinquency and succession matters are to be handled by family courts (section IV.2.). Finally, the paper alludes to a tendency to remove family matters from courts by shifting them to extra-judicial institutions or even to the parties and their party autonomy (section V.).

Matteo Fornaser, Streitbeilegung im Arbeitsrecht: Eine rechtsvergleichende Skizze (Dispute Settlement in Employment Matters: A Comparative Overview)

Labour disputes are resolved through a broad array of resolution mechanisms. Interests disputes which arise when collective bargaining fails to reach an agreement on the terms of employment are generally settled through extra-judicial conciliation and arbitration procedures. State courts have no role to play in this context since interests disputes are not adjudicated on the basis of legal norms. Rather, such disputes are settled by reaching a compromise which strikes a fair balance between the competing interests of the parties involved. Rights disputes, on the other hand, are generally resolved through specialized state courts and, though more rarely, private arbitration (e.g. in the U.S.). The emergence of these mechanisms has resulted from a general dissatisfaction with the performance of ordinary state courts in resolving labour disputes: employers have taken the view that ordinary state courts are not sufficiently acquainted with the customs and usages of employment, while employees have feared that the courts are biased in favour of employers. The creation of special courts, including lay judges appointed by employers and employees, has sought to tackle these problems and to meet the needs of labour and management. One important aim of labour courts is to facilitate access to justice for employees with a view to ensuring that litigants are on an equal footing. Thus, in most jurisdictions the labour court procedure is designed to reduce litigation costs, e.g. by expediting proceedings and by limiting the right of an employer to recover attorney’s fees from the employee-plaintiff in the event the claim is dismissed. Another way to ensure that proceedings before labour courts are speedy and inexpensive is to provide assistance to the parties so as to facilitate their reaching an amicable settlement. With regard to substantive law, labour courts play a dual role. First, they facilitate the enforcement of employee rights and, thus, complement substantive employee protection rules. Second, the emergence of specialized courts for the settlement of employment matters has had a deep impact on the development of labour law as a distinct field of law both in scholarship and practice.

Wolfgang Hau, Zivilprozesse mit geringem Streitwert: small claims courts, small claims tracks, small claims procedures (Small Claims: Courts, Tracks, Procedures)

In principle, constitutional standards require courts to deal with actions irrespective of the amount in controversy. But this does not necessarily mean that it is appropriate to let ordinary courts apply the standard rules of civil procedure in small claims cases. Rather, it is commonly understood that petty litigation raises particular problems and deserves special solutions. The question of how to design such organizational and/or procedural rules seems to gain momentum perpetually and across all jurisdictions. A comparative and historical analysis reveals an amazing variety of approaches and solutions, i.e. small claims courts, small claims tracks and small claims procedures. When providing special rules for small claims disputes, law-makers normally purport to facilitate access to justice, but more often than not try to cut costs. The latter aim, however, is not to be disregarded since affordability of justice is of utmost importance; moreover, there are numerous examples illustrating that procedural rules which emerged by necessity rather than by design may stand the test of time. Yet one should accept that both goals – removing barriers to justice and relieving the burden on the justice system ? are unlikely to be simultaneously achieved: you cannot have your cake and eat it. Both aims can be reached only if one is willing to cut down on the quality in the administration of justice (in particular as regards factfinding, the legal assessment of the case and the respondent’s rights to defend). But in a system governed by the rule of law, this is no less acceptable than the converse, i.e. restricting access to justice as a means of cost-efficiently providing a high-quality system to a reduced number of lawsuits. High standards of accessible justice come at a price: a reasonably funded and elaborated judicial infrastructure available even for small claims.

Holger Fleischer, Sebastian Bong and Sofie Cools, Spezialisierte Spruchkörper im Gesellschaftsrecht (Specialized Courts in Company Law)

Specialized courts are on the advance in many locations. This development is on display also in commercial law and company law. The present article cannot address the topic in its entirety and focuses instead on those judicial bodies that adjudicate internal corporate disputes. Three historic and comparative examples illustrate the particular types of institutions that have been formed. At the outset, the venerable German Divisions for Commercial Matters (Kammern für Handelssachen) are analysed, followed by likely the two best-known special courts for company law matters: the Delaware Court of Chancery and the Companies and Business Court (Ondernemingskamer) of the Amsterdam Court of Appeals. These three case studies are followed by a number of comparative observations on specialized judicial bodies in company law.

Stefan Reuter, Das Rechtsverhältnis im Internationalen Privatrecht bei Savigny (Savigny and Legal Relationships in Private International Law)

In the legal system conceptualised by Savigny, legal relationships serve as the starting point. Savigny defines a legal relationship as a relation between two people or between one person and an object as determined by legal rules. Accordingly, a legal relationship always has two elements: a material element (the specific facts in question) and a formal element (the legal rules). For example, where the facts of a concrete case involving two people match the conditions of the contract law rules, a legal relation exists between these two people. As compared to a legal relationship, a legal institution consists only of formal elements, namely legal rules, having the same subject matter. For example, all legal provisions regarding marriage form the legal institution of marriage. Although Savigny uses legal relationships as the starting point in both substantive law as well as in private international law, he creates different categories of legal relationships for each of them. Whereas in substantive law Savigny distinguishes between four categories (law of property, law of obligations, family law and law of succession) he adds a fifth category for the sake of private international law: legal capacity. In substantive law, Savigny defines legal capacity not as a legal relationship but only as a pre-condition of a legal relationship. This seems logical given that legal capacity cannot be described as a relation either between two people or between one person and an object, with such a relation being an essential condition according to Savigny’s definition of a legal relationship. Nevertheless, in private international law it is generally accepted that legal capacity needs its own, separate conflict rule. Legal capacity was therefore one of the subjects of private international law, and for this reason Savigny re-categorised it as a legal relationship for the purpose of conflict of laws. Ultimately, no advantages follow from having legal relationships serve as the starting point in private international law – as opposed to legal institutions or legal rules. Legal relationships do not result in a greater number of connections nor in a de-politicization of private international law. Rather, difficulties result when attempting to classify legal relations unknown to the lex fori.

 

 

 

 

The FernUniversität Hagen, Germany’s leading state-maintained institution in the field of distance learning, will host an international conference dealing with the legal implications of Brexit on 8-9 November 2017. The description of the event provided by the organizers reads as follows:

„Modelled on the philosophy of Ordo-Liberalism, an offshoot of classical liberalism, the European Union strongly relies on the existence and stable operation of a legal system that can regulate free market and help achieve the expected economic, social and political outcomes. After many decades of tight economic, social and political relations regulated by a common legal system under the umbrella of the EU, the British withdrawal from the Union could represent a serious blow for the aspirations of stability in the Continent, especially against the backdrop of the current European crisis. Many fear this event could open up a Pandora’s Box of severe problems in the EU. What impact will Brexit have on the rights of EU and UK citizens? How is it going to affect the legal regulation of present and future economic relations between the EU and the UK and how will this affect such relations in turn? These and similar questions will be addressed in this conference by four panels of international legal experts and researchers from five universities from Europe, UK and USA.“

For further information and registration, please click here.

And, while we’re at it, Michael White has published a highly interesting article on „How progress in UK/EU talks has hit an impasse over the ECJ“ in the „New European“. The author in particular reports on a conference that took place on 24 July 2017 at the Institute for Government (IfG) in London and which involved Michael-James Clifton, chief of staff to the President of the Court of Justice to the European Free Trade Area – the EFTA Court – Dr. Holger Hestermeyer, a German international disputes specialist at King’s College, London, Catherine Barnard, professor of EU law at Cambridge and the IfG’s own Raphael Hogarth.
You may read the article here.

On the occasion of his eightieth birthday on 30 July 2017, colleagues and friends have dedicated a liber amicorum to Professor Dr. Reinhold Geimer (University of Munich), who, as a Bavarian notary, is not only a highly respected legal practitioner, but also one of Germany’s most prolific and influential academic writers on international civil procedure. The Festschrift is edited by Reinhold Geimer’s good friend, co-editor and colleague Professor Dr. Rolf A Schütze (Tübingen/Stuttgart) and published by C.H. Beck (Munich; ISBN: 9783406710384). It contains more than 60 contributions (in German language), mostly on European and international civil procedural law, and totals 837 pages. A must-read for anyone interested in the subject! Further details will be available soon on the publisher’s website here.

On 24 November 2017 Prof. Dr. Andreas Schwartze from the University of Innsbruck will host the final conference of the EU-project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters“.

The conference will discuss best practices of Member State courts, who base their case law on the consideration of judgments given by courts of other Member States, but also “undiscovered disputes” between courts of Member States, where relevant case law from other Member States was ignored.

The conference will provide the occasion for the first meeting of the European Legal Authors Network. The Network has started to form during the unalex project with the objective of developing systematic overviews on the application of the instruments of European private international law, where the case law of the courts of the Member States is comprehensively analysed and conflicting opinions discovered.

Further information will follow within the next weeks. We’ll keep you posted!

The year 2017 marks the 30th anniversary of China’s joining of the Hague Conference on Private International Law (HCCH). During these 30 years, huge progress has been made in the area of private international law both in China and around the world, and it has greatly facilitated cross-border movement of goods and capital, as well as interactions among peoples of different nations. At the same time, there are a number of challenges emerging. Different nations should work together, jointly meet those challenges and chart the right course for solutions.
With this in mind, the Ministry of Foreign Affairs of the People’s Republic of China and China Society of Private International Law (CSPIL), with the support of the HCCH, intend to jointly host the Global Forum on Private International Law at Wuhan University in Wuhan, China from 22 to 23 September 2017. The Forum will be organized by the Institute of International Law of the University, with the working language of English.
The theme of the Forum will be: Cooperation for Common Progress- the Evolving Role of Private International Law. The Forum will focus on the following topics:
(1) Common progress through private international law over 30 years: China, HCCH and the world;
(2) The Belt and Road Initiative and international legal cooperation;
(3) A global look at recent developments of private international law;
(4) The Hague Judgments Project.

Registration is open until 5 August, 2017. Further details may be found on the website of CSPIL here.

The text of the announcement above is largely drawn from the website of CSPIL.

Thank you Francesca Petronio, Fabio Cozzi & Francesco Falco for flagging the Italian Supreme Court’s judgment no. 16601/2017 of 5 July last. I have tried to locate the judgment in relevant databases but failed – however Francesca et al’s posting gives great overview.

In what is suggested to be a Copernican revolution, the Supreme Court has dropped the Italian legal order’s fundamental objection to punitive damages, which made it near-impossible to obtain recognition and enforcement of in particular US judgments containing such damages. The judgment not surprisingly contains a number of conditions in particular on the excessive nature of such damages.

The judges seem to have been swayed by developments both in Italy (statutory law in places allowing for more than simple compensation of material loss) and US law (truly excessive punitive damages having been reigned in).

Punitive damages are the one example always identified as one of the core applications of ordre public in European recognition and enforcement law. After the Italian example surely this may now be less obvious in many jurisdictions.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.

 

 

A short post mostly for the sake of completeness. In its second recent judgment on insureds as ‘protected category’ under the Brussels I Regulation, the CJEU held last week in C-340/16 Kabeg. Where an employee is injured and the employer is  statutory assignee of the rights of its employee, the employer is subrograted into the rights of the victim and can directly act against the insurer of the vehicle involved.

The Court’s less cautious approach to subrogation than it generally adopts, is influenced by Directive 2009/103, which obliges Member States to put in place such direct action. Article 18: ‘Member States shall ensure that any party injured as a result of an accident caused by a vehicle covered by insurance as referred to in Article 3 enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.’

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2.

Investment arbitration forms a part of the international litigation arena. And it is a subject which is legally demanding and politically explosive. The 23rd Würzburg Days of European Law (“23. Würzburger Europarechtstage”) at the Julius-Maximilians-Universität Würzburg in Germany aim at an academically sound, open and maybe controversial debate of this topical issue. They will take place on 10 and 11 November  2017 and are organized by Prof. Dr. Markus Ludwigs and Prof. Dr. Oliver Remien, both from the University of Würzburg. The organizers are delighted to have found distinguished speakers and chairs initiating the discussions.

The conference language will be German, but here is an English translation of the program. The conference flyer with the program in German is available here.

Friday November 10th, 2017

13.00   Welcome Addresses

• Prof. Dr. Dr. h.c. Alfred Forchel, President of the University of Würzburg
• Prof. Dr. Eckhard Pache, Dean of the Faculty of Law

13.15   Welcome and Introduction into the Subjects

• Prof. Dr. Markus Ludwigs
• Prof. Dr. Oliver Remien

13.30   Sovereignty and Investment Arbitration Prof. Dr. Axel Flessner, Humboldt University Berlin

TTIP, CETA & Co. – The Future of Free Trade Agreements in a Changed Political Environment, MdB Prof. Dr. Heribert Hirte, LL.M., Member of the Bundestag, University of Hamburg

14.30   Statement and Discussion of the Papers, Prof. Dr. Dr. Rainer Hofmann, University of Frankfurt/Main

15.15   Coffee Break

15.45   A Multilateral Investment Court as a Progress for the Rule of Law?, Prof. Dr. Isabel Feichtner, LL.M., University of Würzburg

16.15   Statement and Discussion of the Paper, Prof. Dr. Markus Krajewski, University of Erlangen-Nürnberg

16.45   Coffee Break

17.15   Compensation for Infringements and Takings of Property after the Judgment of the Bundesverfassungsgericht (German Federal Constitutional Court) concerning the Stop to Nuclear Power, Justice Fed. Const. Ct. Prof. Dr. Andreas L. Paulus, University of Göttingen

17.45   Investment Protection Arbitration and EU State Aid Law, Prof. Dr. Marc Bungenberg, LL.M., Saarland University

18.15   Statement and Discussion of the Papers, Prof. Dr. Christian Tietje, LL.M., University of Halle-Wittenberg

19.00   Reception in the Entrance Hall in front of the Neubaukirche

Saturday November 11th, 2017

9.00   “EU-only”? – The Division of Competences between the EU and the Member States for the Conclusion of Free Trade Agreements, Prof. Dr. Michael J. Hahn, LL.M., University of Bern

Are Investment Protection Agreements between EU-Member States a Relict Contrary to EU-Law?, Dr. Thomas Wiedmann, European Commission, Brussels

10.00   Statement and Discussion of the Papers, Prof. Dr. Armin Hatje, University of Hamburg

10.45   Coffee Break

11.15   Enforcement According to ICSID Convention and Setting Aside, Recognition and Enforcement According to the New York Convention, Prof. Dr. Christian Wolf, University of Hannover

Transparency and Third Person Involvement by Way of an Amicus Curiae According to UNCITRAL and ICSID Rules and Arbitration Practice, Dr. Sören Segger, University of Würzburg

12.15   Statement and Discussion of the Papers, Dr. Stephan Wilske, LL.M., GleissLutz Law Firm

13.00   Concluding Remarks by the Organizers

 

Everybody is cordially invited to participate. Participation is free of charge. Please register under http://www.europarechtstage.de.

In 2010, Professors Franco Ferrari and Stefan Kroell organized a seminar on “conflict of laws in international commercial arbitration”, conscious of the fact that every arbitration raises a number of ‘conflict of laws’ problems both at the pre-award and post-award stage. Unlike state court judges, arbitrators have no lex fori in the proper sense, providing the relevant conflict rules to determine the applicable law. This raises the question of which conflict of laws rules apply and, consequently, the extent of the freedom arbitrators enjoy in dealing with this and related issues. The papers presented at that conference were later published in a book co-edited by the two organizers of said conference. Professors Ferrari and Kroell are now preparing a new edition of the book, which has attracted a lot of attention over the years. Apart from updated versions of the papers published in the first edition (with the following titles: “Conflicts of law in international arbitration: an overview” by Filip De Ly, “The law applicable to the validity of the arbitration agreement: a practioner’s view” by Leonardo Graffi, “Applicable laws under the New York Convention” by Domenico Di Pietro, “Jurisdiction and applicable law in the case of so-called pathological arbitration clauses in view of the proposed reform of the Brussels I-Regulation” by Ruggiero Cafari Panico, “Arbitrability and conflict of jurisdictions: the (diminishing) relevance of lex fori and lex loci arbitri” by Stavros Brekoulakis, “Extension of arbitration agreements to third parties: a never ending legal quest through the spatial-temporal continuum” by Mohamed S. Abdel Wahab, “The effect of overriding manadatory rules on the arbitration agreement” by Karsten Thorn and Walter Grenz, “Arbitration and insolvency: selected conflict of laws problems” by Stefan Kröll, “Getting to the law applicable to the merits in international arbitration and the consequences of getting it wrong” by Franco Ferrari and Linda Silberman, “Manadatory rules of law in international arbitration” by George A. Bermann, “Conflict of overriding mandatory rules in arbitration” by Anne-Sophie Papeil, “The law applicable to the assignment of claims subject to an arbitration agreement” by Daniel Girsberger, “The laws governing interim measures in international arbitration” by Christopher Boog), the new edition seeks to include papers on new topics, such as the law governing arbitrators’ liability, the law governing issues of characterization in commercial and investment arbitration, the law governing limitation periods (including their characterization as procedural or substantive), the law governing the taking of evidence (including the characterization of evidence as procedural or substantive, its admissibility and weight), the law governing damages (including whether different laws govern heads of damages and quantification), the law governing issues fees and costs, the law governing res iudicata, the law governing privilege, the law governing ethical obligations (both of arbitrators and counsel), the role of the Hague Principles on Choice of Law in international arbitration).

The editors welcome the submission of papers on any of the aforementioned topics as well as other topics related to the relationship between conflict of laws and international commercial arbitration. If interested, please submit an abstract (2000 words) and a basic bibliography to Professors Ferrari (franco.ferrari@nyu.edu) and Kroell (stefan.kroell@law-school.de) for acceptance by 1 October 2017. If accepted, the paper will need to be submitted (in blue book format) by 1 February 2018. 

The book Treatment of Foreign Law – Dynamics towards Convergence? (Springer, 2017), edited by Professor Yuko Nishitani, has just been published. It includes one general report and 30 national reports on the treatment of foreign law in diverse jurisdictions. Additionally, the book includes a report by the Hague Conference on Private International Law on the state and progress of its envisaged project on the treatment of foreign law. The general report and most of the individual reports were prepared for the 2014 Conference of the International Academy of Comparative Law held in Vienna.

The abstract reads as follows:

This work presents a thorough investigation of existing rules and features of the treatment of foreign law in various jurisdictions. Private international law (conflict of laws) and civil procedure rules concerning the application and ascertainment of foreign law differ significantly from jurisdiction to jurisdiction. Combining general and individual national reports, this volume demonstrates when and how foreign law is applied, ascertained, interpreted and reviewed by appeal courts. Traditionally, conflicts lawyers have been faced with two contrasting approaches. Civil law jurisdictions characterize foreign law as “law” and provide for the ex officio application and ascertainment of foreign law by judges. Common law jurisdictions consider foreign law as “fact” and require that parties plead and prove foreign law. A closer look at various reports, however, reveals more differentiated features with their own nuances among civil law jurisdictions, and the difference of the treatment of foreign law from other facts in common law jurisdictions. This challenges the appropriacy of the conventional “law-fact” dichotomy. This book further examines the need for facilitating access to foreign law. After carefully analyzing the benefits and drawbacks of existing instruments, this book explores alternative methods for enhancing access to foreign law and considers practical ways of obtaining information on foreign law. It remains to be seen whether and the extent to which legal systems around the world will integrate and converge in their treatment of foreign law.

Highly recommendable!

Further information, including a table of contents, is available here.

Another one from the exam queue. I reported earlier on Szpunar AG’s Opinion in C-54/16 Vinyls Italia – readers may want to refer to that post before reading on. The case concerns the extent to which a bona fide creditor may insulate payments made to it by the insolvent debtor, to the detriment of the collectivity of the creditors, using choice of law for its contract with the debtor away from the lex concursus. The Court held on 8 June, much along the lines of its AG and earlier precedent especially Nike with respect to anti-avoidance actions. The judgment therefore is not of great novelty for this part of the insolvency Regulation. It is on the other hand of crucial importance for the interpretation of ‘international’ in European private international law.

Firstly, whether the court hearing the insolvency proceedings can or must raise the Article 13 (now 16) even if the party profiting from the insulation of its payments from the insolvency, has failed expressly to do so in its submissions: this, the CJEU held, is a matter of procedure, not harmonised in the Insolvency Regulation and lex fori therefore, subject to the usual condition that effet utile is guaranteed and that EU law is equally applied as national law.

The Court had already held in Nike that the defendant in an anti-avoidance (Pauliana) action has to prove both the facts from which the conclusion can be drawn that the act is unchallengeable and the absence of any evidence that would militate against that conclusion (at 25). The Court in Vinyls Italia qualifies that statement: the party bearing the burden of proof must show that, where the lex causae makes it possible to challenge an act regarded as being detrimental, the conditions to be met in order for that challenge to be upheld, which differ from those of the lex fori concursus, have not actually been fulfilled. However defendant does not have to show that the lex causae does not provide, in general or in the abstract, any means to challenge the act in question: such means of challenging the act almost always exist, at least in the abstract, and such strict interpretation would therefore deprive Article 13 (now 16) of its effectiveness (at 38). Of course how wide exactly the net of voidness needs to be cast, is not entirely clear from the judgment.

The final question then deals with the possibility of relying on (now) Article 16 in the situation provided for in Article 3(3) of the Rome I Regulation, that is to say, where all the elements relevant to the situation in question between the parties to a contract are located in a country other than the country whose law is chosen by those parties. Now, the Rome I Regulation does not ratione temporis apply to the facts at issue and on the similar provisions of the Rome Convention, the referring court is not entitled to ask questions. The CJEU therefore decides to simply reply to the question of thins being a purely domestic contract, by reference to Article 16 of the insolvency Regulation only. It nevertheless however uses both Regulation and Convention a contrario: both existed at the time of adoption of the Insolvency Regulation. The latter does not include an Article 3(3) type provision. That it does not, must, the Court held, mean that the Insolvency Regulation so no need at all ao limit the use of lex contractus for insulation reasons, even in the case of purely domestic contracts.

There is however one limit: Fraus (omnia corrumpit) aka abuse of (EU) law. Here, the Court refers to its findings last summer in C‑423/15 Kratzer. EU law cannot be relied on for abusive or fraudulent ends. A finding of abuse requires a combination of objective and subjective elements. First, with regard to the objective element, that finding requires that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by Community rules, the purpose of those rules has not been achieved. Second, such a finding requires a subjective element, namely that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage.

Here, Article 16 may be disregarded only in a situation where it would appear objectively that the objective pursued by that application, in this context, of ensuring the legitimate expectation of the parties in the applicability of specific legislation, has not been achieved (a tough condition of the lex contractus is wisely chosen), and that the contract was made subject to the law of a specific Member State artificially, that is to say, with the primary aim, not of actually making that contract subject to the legislation of the chosen Member State, but of relying on the law of that Member State in order to exempt the contract, or the acts which took place in the performance of the contract, from the application of the lex fori concursus. In this respect, (at 55) choice of law of a Member State other than the Member State in which parties are established does not create any presumption regarding an intention to circumvent the rules on insolvency for abusive or fraudulent ends.

The findings on fraus amount to strong support for a wide interpretation of the concept ‘international’ in EU private international law. A development to be applauded. They also make it very difficult within the context of Article 13 (now 16) successfully to mount a challenge of payments detrimental to the collectivity. This aspect of the case is what i.a. Gilles Lindemans objects to in the judgment. However the CJEU logic I suppose lies in what the it sees firmly as the object and purpose of Article 16: it protects the legitimate expectations of the party who has benefited from an act detrimental to all the creditors. In some way it prevents contractual sclerosis for parties suspected of being close to payment issues. Securitisation is facilitated if the lex causae is fixed, independent of the lex concursus. Not just fraus (a very improbable route now) but probably more importantly the burden of proof per C-310/14 Nike, protects the collectivity.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.7.1. Chapter 3, Heading 3.2.8.1.

The revised European Small Claims Procedure entered into force on July 14 (see Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure). According to the Commission’s Fact Sheet, Small Claims Procedure becomes even simpler, faster and more user friendly. Which means:

1. The European Small Claims Procedure is more widely available. The threshold rises to €5 000 from €2 000.

2. Citizens can use online procedures to avoid unnecessary travelling to courts The new rules enhance the use of technology and will limit unnecessary travelling. In practice this means:

• kicking-off the procedure online;
• using video-conferencing for communication;
• limiting physical presence only to the cases when the court cannot make a decision based on written documents;
• accepting documents sent by email by the court.

3. Cutting court fees: Fees can be very high in small claims cases and sometimes higher than the value of the claim. With the new rules, the court fees have to be proportionate to the value of the claim.