Droit international général

Helsinki University has four open positions for assistant/associate professors and professors, in the area of Law and Digitalization; Law and Globalisation; Transnational European Law and Russian law and administration.

More information is available here.

Seven years after the first edition, the third and complete edition of this book edited by Prof. Sixto Sánchez Lorenzo (University of Granada) and published by Thomson-Reuters/Aranzadi has finally been released- the actual date is December 2016.

In two volumes (around 2500 pages, in Spanish) this huge academic work, gathering 24 authors of 51 chapters, provides for a complete analysis of legal families, sources, formation, content, interpretation, performance and breach of contract from a comparative perspective. General and singular aspects of contracts, emphasizing convergences and divergences between national legal systems and their impact in international trade, are dealt with therein. International texts, such as CISG, DCFR, PECL, UNIDROIT and OHADAC Principles are also analyzed in each chapter.

ISBN: 9788491359258

Click here to access the summary.

Manlio Frigo, Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des litiges, Brill, 2016, ISBN: 9789004321298, 552 pp., EUR 18.

La pratique internationale des différends concernant la circulation des biens culturels est devenue très riche pendant les dernières années, grâce à la prolifération de normes internationales applicables et à la multiplication de juridictions compétentes à saisir les litiges. La recherche des liens entre biens culturels et collectivité humaine et territoriale et de l’intérêt protégé à la lumière de l’expérience directe en matière de différends et de négociations, conduisent l’auteur à examiner les critères de rattachement utilisés, aussi bien que la question de la loi matérielle applicable par rapport à l’issue des différends. Les problèmes sont abordés soit par rapport à la spécificité des biens culturels vis-à-vis des règles ordinaires en matière de circulation des meubles, soit en fonction de la recherche du rattachement à l’ordre juridique d’origine des biens concernés. Cet ouvrage évalue les inconvénients découlant de l’application des règles générales édictées par les principaux systèmes de droit international privé en matière de circulation de biens et de constitution de droits réels. L’analyse est conduite aussi à l’égard de la validité des solutions proposées, sur le plan du droit international privé et du droit uniforme, notamment en cas de revendication, de retour ou de restitution de biens culturels, ainsi que de la vérification de l’efficacité des réponses données par la jurisprudence et la doctrine concernant les règles nationales et internationales applicables.

This is a reminder of the Seminar on Brexit and Private International Law at King’s College London on 26 January 2017.

The seminar will discuss the risks which Brexit poses for the UK as a centre for dispute resolution of civil and commercial disputes, with particular reference to Jurisdiction/Enforcement; Applicable law; Procedure; and Cross-border Insolvency law.

The Chair is Professor Jonathan Harris QC.

Speakers are:

Sir Richard Aikens: Brick Court Chambers and King’s College London

Alexander Layton QC: 20 Essex Street Chambers and King’s College London

Dr Manuel Penades Fons: King’s College London

It will take place at King’s College London – Strand Campus at 6.30 p.m.

For registration and more information, see here.

The advance of the English language article-of-article commentary gathers ever more momentum. The series of European Commentaries on Private International Law (ECPIL), edited by Ulrich Magnus and Peter Mankowski, welcomes the publication of its second volume addressing the Rome I Regulation. It assembles a team of prominent authors from all over Europe. The result is the by far most voluminous English language commentary on the Rome I Regulation, the prime pillar of European private international law and the fundament of cross-border trade with Europe. Its attitude is to aspire at leaving virtually no question unanswered. Parties’ choice of law, the tangles of objective connections under Art. 4, consumer contracts, employment contracts, insurance contracts, form and all the other topics of the Rome I Regulation attract the in-depth analysis they truly deserve.

I am happy to post here the link to the statement which I signed together with 62 colleagues from various walks of (trade) life, on the EU’s modus operandi for the signature of trade agreements.  Post-CETA, we strongly believe that current procedures, when properly implemented, ensure democratic legitimacy for the EU’s international agreements at multiple levels. The statement is available in English, French and German: EU noblesse oblige.

Geert.

There is just a month to go for the Private International Law: Embracing Diversity event taking place in Edinburgh, organized by the University in cooperation with several other institutions from the UK and abroad. The updated program of this one-day meeting of PIL experts can be downloaded here. Please remember the venue (St. Trinnean’s Room, St. Leonard’s Hall – University of Edinburgh, EH16 5AY), and also that registration is required at www.law.ed.ac.uk/events (attendance fee: £40.00 per attendee).

La giurisprudenza italiana sui regolamenti europei in materia civile e commerciale e di famiglia, edited by / a cura di Stefania Bariatti, Ilaria Viarengo, Francesca Clara Villata, Cedam, 2016, pp. 527, ISBN 9788813358686, EUR 55

Il volume che si licenzia rappresenta l’opera conclusiva delle attività svolte da un gruppo di ricerca dell’Università degli Studi di Milano nell’ambito del progetto internazionale di ricerca “Cross-border litigation in Europe: Private International Law – Legislative framework, national courts and the Court of Justice of the European Union” – EUPILLAR, finanziato dalla Direzione generale Giustizia e consumatori della Commissione europea, iniziato il 1° ottobre 2014 e conclusosi il 30 settembre 2016. Oggetto dell’indagine sono stati alcuni regolamenti dell’Unione europea in materia di diritto internazionale privato e processuale, adottati nel settore della cooperazione giudiziaria in materia civile, e la relativa giurisprudenza italiana, anche sotto il profilo di un proficuo dialogo dei giudici nazionali con la Corte di giustizia dell’Unione europea. L’indagine è stata condotta in parallelo dai partner del consorzio di ricerca, vale a dire, accanto all’Università degli Studi di Milano, nelle sue due componenti del Dipartimento di Diritto pubblico italiano e sovranazionale e del Dipartimento di Studi internazionali, giuridici e storico-politici, l’Università di Aberdeen (Scozia), che ha coordinato il progetto, le Università di Anversa (Belgio), Breslavia (Polonia), Friburgo (Germania), Leeds (Inghilterra) e Madrid (Universidad Complutense, Spagna). 

My colleague Adriani Dori (MPI Luxembourg) kindly reminded me today: EU Regulation 655/2014 applies from 18 January 2017.

There is as yet no EU harmonisation on amino acids, in so far as they have a nutritional or physiological effect and are added to foods or used in the manufacture of foods. A range of EU foodlaws therefore do not apply to national action vis-a-vis amino acids, in particular Regulation 1925/2006 – the food supplements Regulation. In the absence of specific EU law rules regarding prohibition or restriction of the use of other substances or ingredients containing those ‘other substances’, relevant national rules may apply ‘without prejudice to the provisions of the Treaty’.

In C-282/15 Queisser Pharma v Germany, moreover there were no transboundary elements: Articles 34-36 TFEU therefore do not in principle apply.

No doubt food law experts may tell us whether these findings are in any way unusual, however my impression is that the Court of Justice in this judgment stretches the impact of the ‘general principles of EU food law’ as included in Regulation  178/2002. Indeed the Court refers in particular to Article 1(2)’s statement that the Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at EU and national level (my emphasis). Article 7 of the Regulation is of particular relevance here. That Article gives a definition of the precautionary principle, and consequential constraints on how far Member States may go in banning foodstuffs, as noted in the absence of EU standards and even if there is no cross-border impact.

Article 7 Precautionary principle

1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.

2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.

Germany on this point is probably found wanting (‘probably’, because final judgment on the extent of German risk assessment is left to the national court) – reference is best made to the judgment for the Court’s reasoning. It is clear to me that the way in which the Regulation defines precaution, curtails the Member States considerably. Further ammunition against the often heard, and wrong, accusation that the EU is trigger happy to ban substances and processes in the face of uncertainty.

Geert.

It is my pleasure to give notice of a recently published monograph of my colleague Dr. Javier Maseda Rodríguez (Associate Professor of private international law at the University of Santiago de Compostela, Spain), entitled

La ley aplicable a la titularidad original de los derechos de propiedad intelectual sobre las obras creadas en el marco de una relación laboral (The law applicable to the initial ownership of intellectual property rights of works created in the context of an employment relationship).

This monograph aims to identify the applicable law to the initial ownership of intellectual property rights to works created in the context of an employment relationship. The topic is indeed a classic one for private international law scholars with an interest in intellectual property. Still, it remains a hot issue, as shown in a book that compiles with a comparative intent normative, practical and doctrinal positions on the subject, explaining at the same time the reception in Spanish law of regulations alien to the Spanish tradition – such as Art. 11 (2) English Copyright, Designs and Patent Act 1988, Art. 7 Dutch IPL or the works made for hire from sect. 201.b, par. 17, American Copyright Act 1976.

The research undertaken by Dr. Maseda Rodríguez evinces the controversy raised by the ascription of the initial ownership of intellectual property rights to a specific work, in light of the different responses given by legal systems –and this, in spite of the rapprochement among systems thanks to rules like the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886-, both in general and with respect to works created in the context of an employment relationship. Hence the comparative law analysis, providing support for the different viewpoints as to the applicable law: on the one hand, the continental systems of droit d’auteur, which identify the employee as the author and therefore as original holder of economic and moral rights (art. 1, 5.1, 51 y 97.4 Spanish LPI). On the other, the copyright systems, which consider the entrepreneur/employer, who facilitates the creation by investing in the product, as author, and therefore as original holder of all rights, economic and moral (art. 11 (2) English Copyright, Designs and Patent Act 1988, the art. 7 Dutch IPL or works made for hire of the sect. 201.b, par. 17, American Copyright Act 1976).

The absence of any material notion of author facilitates to address the question of the original ownership of intellectual property rights from a pure conflict-of-law rules perspective. Dr. Maseda approaches the issue from two points of view -employment and intellectual property-, regulated by different applicable rules –the lex laboris and the law regulating intellectual property rights. The pros and cons of both solutions are discussed; so is their respective implementation, which is explained decoupling moral and economic intellectual property rights, as their different nature result in different problems.

Regarding the implementation of the lex laboris to the original ownership of economic intellectual property rights the following three issues are tackled with in the monograph: first, the reception of copyright rules into Spanish law; secondly, the problems generated by the availability of economic intellectual property rights by its original owner; thirdly, the restrictions to the lex laboris (protection of the salaried creator: limits to party autonomy, and the recourse to the lois de police or the international public policy regarding the original ownership of economic intellectual property rights).

Concerning the implementation of the lex loci protectionis to the original ownership of moral rights, the author examines the case of claims for the Spanish territory and for a foreign country. From this point of departure he addresses the reception of foreign norms regulating authorship and/or the initial ownership of moral intellectual property rights in favor of the employer; and the compatibility with the Spanish public policy of the waiver of moral rights in favor of the employer (for instance through by way of a clause in the employment contract).

Finally, the coexistence of both regulations –the lex laboris and the lex loci protectionis– is also addressed, with a special emphasis on the conciliation of the conflicting interests between employer and employee.

Dr. Javier Maseda Rodríguez’s monograph is the sixteenth volume within the series De conflictu legum, a compilation of monographs especially devoted to private international law with a specific focus on civil procedural international law, conflict of law rules and international commercial law.

A quick note on second-hand goods and VAT. For my review of Bot AG’s Opinion in C-471/15 Sjelle Autogenbrug, see here. The Court held yesterday and defined (at 32) second-hand goods essentially as follows: in order to be characterised as ‘second-hand goods’, it is only necessary that the used property has maintained the functionalities it possessed when new, and that it may, therefore, be reused as it is or after repair.

The Court does not refer to EU waste law yet the impact on that area of EU law is clear.

Geert.

Handbook of EU Waste Law, second ed. 2016, Chapter 1.

Regulation (EU) n. 655/2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters is applicable as of today, 18 January 2017. The relevant section of the European e-Justice Portal has been updated: the application forms can be completed online.

È applicabile da oggi, 18 gennaio 2017, il regolamento (UE) n. 655/2014 che istituisce una procedura per l’ordinanza europea di sequestro conservativo (OESC) su conti bancari al fine di facilitare il recupero transfrontaliero dei crediti in materia civile e commerciale. La sezione del Portale europeo della giustizia elettronica relativa al regolamento è stata aggiornata: i relativi moduli possono essere completati online.

In her long-awaited speech on what Brexit actually means for the future application of the acquis communautaire in the United Kingdom, British Prime Minister Theresa May, on 17 January, 2017, stressed that the objective of legal certainty is crucial. She further elaborated:

“We will provide certainty wherever we can. We are about to enter a negotiation. That means there will be give and take. There will have to be compromises. It will require imagination on both sides. And not everybody will be able to know everything at every stage. But I recognise how important it is to provide business, the public sector, and everybody with as much certainty as possible as we move through the process. So where we can offer that certainty, we will do so. […] And it is why, as we repeal the European Communities Act, we will convert the ‘acquis’ – the body of existing EU law – into British law. This will give the country maximum certainty as we leave the EU. The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”

At the same time, May promised that “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.”

(The full text of the speech is available here.)

This unilateral approach seems to imply that the EU Regulations on Private International Law shall apply as part of the anglicized “acquis” even after the Brexit becomes effective. This would be rather easy to achieve for the Rome I Regulation. In addition, a British version of Rome II could replace the Private International Law (Miscellaneous Provisions) Act of 1995, except for defamation cases and other exemptions from Rome II’s scope. At the end of the day, nothing would change very much for choice of law in British courts, apart from the fact that the Court of Justice of the European Union could no longer rule on British requests for a preliminary reference. Transplanting Brussels Ibis and other EU procedural instruments into autonomous British law would be more difficult, however. Of course, the UK is free to unilaterally extend the liberal Brussels regime on recognition and enforcement to judgments passed by continental courts even after Brexit. It is hard to imagine, though, that the remaining EU Member States would voluntarily reciprocate this favour by treating the UK as a de facto Member State of the Brussels Ibis Regulation. Merely applying the same procedural rules in substance would not suffice for remaining in the Brussels Ibis camp if the UK, at the same time, rejects the jurisdiction of the CJEU (which it will certainly do, according to May). Thus, the only viable solution to preserve the procedural acquis seems to consist in the UK either becoming a Member State of the Lugano Convention of 2007 or in concluding a special parallel agreement similar to that already existing between Denmark and the EU (minus the possibility of a preliminary reference, of course). Since only the latter option would allow British courts to apply the innovations brought by the Brussels I recast compared with the former Brussels and the current Lugano regime, it should clearly be the preferred strategy from the UK point of view – but it cannot be achieved unilaterally by the British legislature.

The issue under consideration in Citysprint was whether claimant, Ms Dewhurst, a cycle courier, was an employee of Citysprint or rather, as defendant would have it, a self-employed contractor. I am not a labour lawyer but I do have an interest in the ‘gig economy’, peer to peer etc. [Note Google defines (or conjures up a definition of) the gig economy as a labour market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs].

I also have an interest in language and the law. After an employment tribunal in Uber blasted the company’s use of byzantine language, in Citysprint, too, (in particular at 64 ff) the tribunal looks beyond the fog of legalese to qualify the contract for what it really is. A great development.

Geert.

DOOR PHILIPPE NYS. “Wie willen we de volgende keer uitnodigen? Angela Merkel misschien, via een eredoctoraat van de KU Leuven?” Het was een lachende opmerking, net na de Ekonomikalezing van Guy Ver…

Source: Oog in oog met Angela Merkel, leider van de vrije wereld

Hooley [Hooley v The Victoria Jute Company Ltd and others [2016] CSOH 14] has been sitting in my in-box for a few months. It concerns the liquidation (particularly: selling of companies’ assets by liquidators under Scots law) of companies incorporated in Scotland but with COMI (centre of main interests) outside the EU. In particular, India.

Given the presence of COMI outside the EU, the Insolvency Regulation does not apply. Indeed the Court of Session (Lord Tyre) does not refer to it at all.Findings would have been very different were the Regulation to apply: place of incorporation has to give way to COMI, where these two do not coincide, in which circumstance the place of incorporation at best may open secondary proceedings.

At issue was among others (and for the first time in a Scots court, I understand) the consideration of ‘modified universalism’: ie what is the practical impact of there being a company incorporated in Scotland, given Scots courts and administrators jurisdiction over the insolvencies, when the companies’ business is mainly carried out abroad and when proceedings are also pending abroad.

Per Rubin v Eurofinance, Universalism” means the “administration of multinational insolvencies by a leading court applying a single bankruptcy law.”  The principle of modified universalism was stated by Lord Sumption in Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] AC 1675 (PC) at para 15 as being that “the court has a common law power to assist foreign winding up proceedings so far as it properly can” (see also Lord Collins at paragraph 33 and Lord Clarke of Stone‑cum‑Ebony at paragraph 112).

Essentially Lord Tyre had to decide whether the Scottish administrators’ powers were only exercisable to the extent that their exercise was recognised as legally valid by the law of the relevant non-UK jurisdiction. He held (at 36) that the proceedings taking place in India were ancillary to the administration proceedings in Scotland. The powers of a validly appointed administrator to a Scottish company were therefore not limited by the Indian winding up.

As often of course this judgment is but one side of the coin. Indian courts are at liberty to disregard the Scots findings. Any purchasers of Hooley assets therefore will have a compromised title. One assumes this has an impact on price.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.5.

Reinhard Bork, Principles of Cross-Border Insolvency Law, Intersentia, 2017, ISBN 9781780684307, 290 pp., EUR 94.

The thesis of this book is that cross-border insolvency rules of all kinds (e.g. European Insolvency Regulation, UNCITRAL Model Law, ALI Principles for the NAFTA States, national laws such as Chapter 15 US Bankruptcy Code or Sch. 1 Cross-Border Insolvency Regulation 2006) are founded on, and can be traced back to, basic values and that they aim to pursue and enforce such standards. Furthermore, several principles can be identified, distinguished and sorted into three groups: conflict of laws principles (e.g. unity, universality, equality, mutual trust, cooperation and communication, subsidiarity, proportionality), procedural principles (e.g. efficiency, transparency, predictability, procedural justice, priority) and substantive principles (e.g. equal treatment of creditors, optimal realisation of the debtor’s assets, debtor protection, protection of trust (for secured creditors or contractual partners), social protection (for employees or tenants)). Using the principle-oriented approach, the book will have a significant impact for both deciding cases and shaping cross-border insolvency law. It offers both legislators and courts new substantive and methodological support in making decisions, for example where the treatment of secured creditors, support for foreign insolvency practitioners or even harmonisation of cross-border insolvency laws is at stake.

This book is a collection of papers presented at the 24th traditional conference Corporate Entities at the Market and European Dimensions. The conference was organized on 19-21 May 2016 in Portoroz, Slovenija, by the Institute for Commercial Law Maribor and the Faculty of Law of the University of Maribor. It was co-financed by the European Commission within the project Remedies concerning Enforcement of Foreign Judgements according to Brussels I Recast. The e-version is available for browse or download here. Many interesting topics of private international law are dealt with under the title in particular related to the implementation of the Brussels I bis Regulation. The list of papers includes:

A General Overview of Enforcement in Commercial and Civil Matters in Austria
Philipp Anzenberger

A General Overview of Enforcement in Commercial and Civil Matters in Lithuania
Darius Bolzanas & Egidija Tamosi?nien? & Dalia Vasarien?

Changed Circumstances in Slovene Case Law
Klemen Drnovsek

A General Overview of Enforcement in Commercial and Civil Matters in Italy
Andrea Giussani

Law Aspects of Servitization
Janja Hojnik

Removal of Exequatur in England and Wales
Wendy Kennett

Cross Border Service of Documents – Partical Aspects and Case Law
Urska Kezmah

Diputes regarding the use of distributable profits and ensuring a minimum dividend and balance shee-financial aspects of canceled resolutions d.d.
Marijan Kocbek & Saša Prelic

Subscribers Liabilities to Subcontractor Under Directive 2014/24/EU and ZJN-3
Vesna Kranjc

Certan Open Issues Regarding the Refusal of Enforcement Under the Brussels I Regulation in Slovenia
Jerca Kramberger Skerl

Owerview of the Croatian Enforcement System With Focus on the Remedies
Ivana Kunda

Selected Issues of Recognition and Enforcement of Foreign Judgments from the Prespective of EU Member States
Ji?i Valdhans & Tereza Kyselovská

Editing Working Relationships of Companies Directors (Managerial Staff)
Darja Sencur Pecek

The Order Problem of the Acquisition of Derivative rights in the Event of Realestate Owner Bankruptcy
Renato Vrencur

The Brussel Regulation Recast – Abolishing the Exequatur Maintaining the Exequatur Function?
Christian Wolf

Cross-border Legal Representation as Seen in a Case Study
Sascha Verovnik

The Centre of European Law at King’s College London is running a series of seminars on the meaning of Brexit and its potential impact on different areas of law. It considers the options for the new legal regime between the UK and the EU, taking into account the international legal framework.

On 26 January 2017 the topic will be Brexit and Private International Law. The Chair will be Professor Jonathan Harris QC.

The seminar will take place at King’s College London – Strand Campus at 6.30 p.m.

For registration and more information, see here.