Droit international général

Roel Westrik, associate professor of private law at Erasmus School of Law, is the author of a noteworthy book that presents an original approach to the applicable European law in “Hidden Civil Law. How can you know what the applicable law is?’ (Paris, 2016). The abstract reads:

Lawyers are taught to work with applicable law and to be familiar with the applicable law, they should ‘keep up to date with their literature’. Here, in two sentences, the reality and ways of working of lawyers throughout the past century. Past because, in contemporary times, applicable law can no longer be easily ‘recognised’. There is a knowing problem related to applicable law of European origin. This problem consists in two main questions: How are lawyers to know what applicable law is? And, if there is a presumption of ‘other’ applicable law when practising ‘national law’, where is it to be found?

These questions must be posed in every case, every advice to be written as well as judgments and rulings that have to be pronounced. What, in a specific case, is the prevailing, applicable law irrespective of whether its origins are national or European?

The acknowledgement that these questions must be posed in advance, before ‘solving’ any case, will make great strides in the current ways of working and classification of legal areas. Also, it will pay scant attention to the existing approach where ‘European law’ is seen as corpus alienum, which influences national law from ‘outside’ and creates a ‘Hidden Civil Law’.

A message is sent to the legal world of civil law: Wake up! European law is part of national law and should be studied as applicable law. It should be recognised and implemented rather than being taken as a separate supplement under the flag of ‘IPL, European law or its impact’. It is applicable civil law!

More information is available here.

The Arbitration Institute of the Stockholm Chamber of Commerce will turn 100 years in 2017. As part of the celebrations in January, a book about the history of arbitration will be published, where lawyers and diplomats from all over the world each write about one particular dispute.

One of the contributions is written by the winner of a large competition initiated by the SCC and aimed at young lawyers. The competition inspired many highly qualified contributions and several were so well-written that they will now be published in a separate edition of Transnational Dispute Management Journal (TDM).

The four texts deal with four different arbitrations that affected international relations: from a border dispute between the United States and Great Britain in what is now Canada, via an early ISDS case from the year 1900 over a Portuguese railway project and a relatively recent arbitration between Singapore and Malaysia, which was concluded at the Permanent Court of Arbitration in 2014.

You can read more about the publication, including the foreword by SCC Secretary-General Annette Magnusson, clicking here.

The University of Milan will host a very interesting seminar on 15 September 2016 (15h00) on “New Trends in EU Private International Law”. Here is the programme:

Welcome address: Prof. Laura Ammannati (Univ. of Milan);

Chair: Prof. Dr. h.c. mult. Fausto Pocar (Univ. of Milan);

• Prof. Paul Lagarde (Univ. of Paris I Panthéon-Sorbonne): Les règlements en matière de régimes matrimoniaux et d’effets patrimoniaux des partenariats enregistrés;
• Prof. Dr. Dr. h.c. mult. Jürgen Basedow (MPI, Hamburg): Damages claims for anticompetitive conduct and the competition of legal services;
• Prof. Dr. Christian Kohler (Univ. des Saarlandes): Les dispositions de d.i.p. du règlement 2016/679 relatif à la protection des données à caractère personnel (et de la directive 2016/680);
• Prof. Francisco Garcimartín Alférez (Univ. Autónoma de Madrid): The GEDIP proposal on the law applicable to companies;
• Prof. Manlio Frigo (Univ. of Milan): Methods and techniques of dispute settlement in the international practice of restitution and return of cultural property;

Final remarks: Prof. Stefania Bariatti (Univ. of Milan).

Further information and the (mandatory) registration form can be found here.

(Many thanks to Prof. Francesca Villata for the tip-off)

As a practising lawyer registered to the Belgian Bar I had more than a passing interest in C‑543/14 Orde van Vlaamse Balies v Ministerraad. The case was held on 28 July. At issue is the reversal of the Belgian exemption of legal services from value-added tax (VAT). Of interest for this blog was the Bar Council’s argument that making legal services subject to VAT endangers access to court for individuals. Corporations recover said VAT from the tax their own sales incur. For them, making legal services subject to VAT has zero impact on their books.

The Bar Council sought support among others in the Aarhus Convention, particularly Article 9(4) and (5) on access to court:

‘3.       In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4.       In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5.       In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’

Perhaps taking inspiration from the Grand Chamber’s approach in Vereniging Milieudefensie, and consistent with the suggestion of Sharpston AG, the five judges Chamber dismissed direct effect for Articles 9(4) and (5) of Aarhus, mostly because of the Conventions deference in Article 9(3) to ‘national law’.

Given the increasing (but as noted recently qualified; see also here) cloud the CJEU’s Grand Chamber had been given Aarhus, this finding by a five judge chamber that Aarhus Articles 9(4) and (5) do not have direct effect is a little awkward. It also puts the Grand Chamber itself in an awkward position. There are quite a number of Aarhus-related cases pending. Will this chamber’s view on 9(4) and (5) be followed by the assembled top dogs?

Geert.

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

B. Hess: The impacts of the Brexit on European private international and procedural law
This article explores the consequences of the Brexit on European private international and procedural law. Although Article 50 TEU provides for a two year transitional period, the (adverse) consequences will affect the London judicial market immediately. Following this transitional period, the Brussels Ibis Regulation and all EU instruments in their area of law will no longer apply to the United Kingdom. A substitution by the Lugano Convention will be difficult, but the United Kingdom might ratify the Hague Choice of Court Convention and the (future) Hague Judgments Convention. In the course of the two-year period, parties should carefully consider whether choice of courts agreements in favour of London will lose their validity after Brexit. In international company law, United Kingdom companies operating on the Continent should verify whether their legal status will be recognized after the Brexit. In family matters, the legal status of EU (secondary) legislation should be respected even after the Brexit. All in all, European private international law will be affected by the cultural loss of the English law. And the same will apply vice versa to English law.

R. Freitag: Explicit and Implicit Limitations of the Scope of Application of Regulations Rome I and Rome II
Almost ten years after the enactment of Regulation “Rome II” on the law applicable to non-contractual obligations and nine years after the publication in the Official Journal of Regulation “Rome I” on the law applicable to contractual obligations, the fundamental question of the material scope of application of the uniform private international law of the EU remains unanswered: Are the aforementioned regulations limited to contracts in the strict sense of voluntarily incurred obligations (governed by Regulation “Rome I”) and to torts, unjust enrichment, negotiorum gestio and culpa in contrahendo (as defined in Regulation “Rome II”) or are both regulations to be seen as an ensemble forming a comprehensive regime for the law of obligations (with the exception of the matters explicitly mentioned in art. 1 par. (2) of Regulation Rome I and Rome II respectively)? The answer is of practical importance for a significant number of institutions of national substantive law that are characterized by their hybrid nature positioning them between contracts and legal obligations which cannot be qualified as torts, unjust enrichment etc. The aim of the article is to show that despite the fact that an all-encompassing European regime of conflict of laws is highly desirable, the existing Regulations “Rome I” and “Rome II” remain eclectic. They do not allow for a uniform treatment of all relevant institutions of substantive law and namely their rules on mandatory provisions (art. 9 Regulation “Rome I”, art. 16 Regulation “Rome II”) cannot be activated to this end.

K. Thorn/C. Lasthaus: The „CAS-Ruling“ of the German Federal Court of Justice – Carte Blanche for Sports Arbitration?
In its judgement, the German Federal Court of Justice (BGH) ruled on the legal validity of an arbitration agreement in favour of the Court of Arbitration for Sport (CAS) between an athlete and an international sports federation. Even though sports federations constitute a monopoly and as a result, athletes are not free to choose between arbitration and courts of law without losing their status as a professional, the agreement is legally effective according to the BGH, thus precluding the parties from settling their dispute before courts of law. In this legal review, the authors argue that – due to the athletes’ lack of freedom – arbitration agreements in sport can only be considered effective if they lead to a court of arbitration constituting a minimum rule of law. With regards to the CAS and considering the influence of sports federations in the establishment of the CAS’ list of arbitrators, they take the view that the CAS does not fulfil such minimum legal requirements. Furthermore, they criticise the fact that an arbitrator is not required to disclose previous appointments by one of the parties involved in the current arbitration procedure. This way, the right to refuse an arbitrator suffers devaluation. Notwithstanding the fact that the international sporting system requires consistent interpretation and application of sporting rules by an international arbitration court in order to establish equal opportunities among the athletes, this must not be achieved at the expense of the athletes’ constitutional rights. Due to the aforementioned legal deficits, the BGH should have ruled the agreement void.

C. Mayer: Judicial determination of paternity with regard to embryos: characterization, private international law, substantive law
The Higher Regional Court of Düsseldorf had to decide on a motion to determine the legal paternity of a sperm donor with regard to nine embryos, who are currently deep frozen and stored in a fertility clinic in California. The hasty recourse to the German law of decent by the court overlooks the preceding issue whether assessing, as of when the judicial determination of paternity is possible, is to be qualified as a question of procedure or substantive law and is, thus, to be solved according to the lex fori or lex causae. Furthermore, the court’s considerations concerning the conflict-of-laws provisions, denying the analogous application of Art. 19 par. 1 s. 1 EGBGB (Introductory Act to the German Civil Code), are not convincing, the more so as it left the question unanswered which conflict-of-laws provision decides on the applicable law instead.

K. Siehr: Criminal Responsibility of the Father for Abduction of his own Daughter
A man of Syrian nationality and a woman married in Germany and had a daughter. The couple finally divorced and parental responsibility was given exclusively to the mother. In December 2006 the couple decided to visit the father’s relatives in Syria in order to spend Christmas vacation with them, to detract the daughter from bad influences in Germany and to change the daughter’s name. The daughter felt very uncomfortable in Syria, because she was not allowed to go to school and could not leave her relatives’ home without being accompanied by some elderly person of her relatives. She wanted to go back to Germany, but was not allowed to do so by her father. Her mother tried to enable her to leave Syria with the help of the German embassy, but this could not be realized. The daughter was beaten by her father and the mother was prohibited to have contact with her daughter. After having reached majority age, the daughter managed to go back to Germany, where the mother indicted the father for depriving a minor from the person having exclusive parental responsibility (§ 235 German Criminal Code). The County Court of Koblenz convicted the father of being guilty of dangerous bodily harm (§ 223a German Criminal Code) and of depriving a minor from her mother (§ 235 German Criminal Code). The Federal Court for Civil and Criminal Cases (Bundesgerichtshof = BGH) confirmed this decision and rejected the attorney general’s and the accused’s appeal against it. The Federal Court correctly decided that German criminal law applies, because the person, having exclusive parental responsibility, had her habitual residence in Germany, hence the result of deprivation was also felt in Germany. The Federal Court also correctly held that the private law question of parental responsibility has to be answered by German law, including German private international law.

C.F. Nordmeier: Acceptance and waiver of the succession and their avoidance according to the Introductory Act to the German Civil Code and to Regulation (EU) No. 650/2012
In matters of succession, a renvoi that results in the scission of the estate causes particular problems. The present contribution discusses acceptance and waiver of the succession and their avoidance in a case involving German and Thai law. The law applicable to the formal validity of such declarations is determined by art. 11 of the Introductory Act to the German Civil Code. It covers the question whether the declaration must be made before an authority or a court if this is provided for by the lex successionis without prescribing a review as to its content. In case of the avoidance of the acceptance of the succession based on a mistake about its over-indebtedness, the ignorance of the scission of the estate may serve as a base for voidability. The second part of the present contribution deals with Regulation (EU) No. 650/2012. Art. 13 of the Regulation applies in the case of the scission of the estate even if only a part of the estate is located in a Member State and the declaration at hand does not concern this part. Avoidance and revocation of the declarations mentioned in art. 13 and art. 28 of the Regulation are covered by these norms.

W. Wurmnest: The applicability of the German-Iranian Friendship and Settlement Treaty to inheritance disputes and the role of German public policy
Based on a judgment of the District Court Hamburg-St. Georg, the article discusses the conditions under which the applicable law in succession matters has to be determined in accordance with the German-Iranian Friendship and Settlement Treaty of 1929, which takes precedence over the German conflict rules and those of Regulation (EU) No. 650/2012. The article further elaborates on the scope of the German public policy threshold with regard to the application of Iranian succession law. It is argued that the disinheritance of an heir as a matter of law would be incompatible with German public policy if based on the heir either having a different religion than the testator or having the status of illegitimate child. However, these grounds will be upheld if the discrimination has been specifically approved by the testator.

C. Thole: Discharge under foreign law and German transaction avoidance
The judgment of the Federal Court of Justice deals with the question whether recognition of an automatic discharge obtained by the debtor in an English insolvency proceeding excludes a subsequent non-insolvency action based on German law on fraudulent transfers. The Court rightly negates this question, however, the court’s reasoning is not completely convincing. In particular, the judgment entails a bunch of follow-up questions with respect to the interdependency between a foreign insolvency or restructuring proceeding and German fraudulent transfer law (outside of insolvency proceedings).

F. Ferrari/F. Rosenfeld: Yukos revisited – A case comment on the set-aside decision in Yukos Universal Limited (Isle of Man) et al. v. Russia
In a decision of 20/4/2016, the District Court of The Hague set aside six arbitral awards that had been rendered in the proceedings Yukos Universal Limited (Isle of Man) et. al. against Russia. The arbitral tribunal had ordered Russia to pay compensation for its breach of the Energy Charta Treaty. According to the District Court of The Hague, the arbitral tribunal had erroneously found that the Energy Charta Treaty was provisionally applicable. For this reason, the arbitral tribunal could not base its jurisdiction on the arbitration clause set forth in Art. 26 Energy Charta Treaty. The present case note examines the set-aside decision of the District Court of The Hague as well as its implications for ongoing enforcement proceedings. Various approaches towards the enforceability of annulled arbitral awards will be presented.

P. Mankowski: Embargoes, Foreign Policy in PIL, Respecting Facts: Art. 9 (3) Rome I Regulation in Practice
Internationally mandatory rules of third states are a much discussed topic. But only rarely they produce court cases. Amongst the cases, foreign embargoes provide for the highlights. The USA has graced the world with their shades. Yet the Cour d’appel de Paris makes short shrift with the (then) US embargo against the Iran and simply invokes Art. 9 (3) of the Rome I Regulation – or rather the conclusio a contrario to be drawn from this rule – to such avail. It does not embark upon the intricacies of conflicting foreign policies but sticks with a technical and topical line of argument. Blocking statutes forming part of the law of the forum state explicitly adds the political dimension.

C. Thomale: On the recognition of Ukranian surrogacy-based Certificates of Paternity in Italy
The Italian Supreme Court denied recognition of a Ukrainian birth certificate stipulating intended parents of an alleged surrogacy arrangement as the legal parents of a newborn. The reasoning given by the Court covers fundamental questions regarding the notions of the public policy exception, the superior interest of the child as well as the relationship between surrogacy and adoption. The comment elaborates on those considerations and argues for adoption reform.

M. Zilinsky: The new conflict of laws in the Netherlands: The introduction of Boek 10 BW
On 1/1/2012, the 10th book of the Dutch Civil Code (Boek 10 (Internationaal Privaatrecht) Burgerlijk Wetboek) entered into force in the Netherlands. Herewith the Dutch Civil Code is supplemented by a new part by which the different Dutch Conflict of Laws Acts are replaced and are combined to form one legal instrument. The first aim of this legislative process was the consolidation of the Dutch Conflict of Laws. The second aim was the codification of certain developed in legal practice. This article is not a complete treatise on the Dutch Conflict of Laws. The article intends to give only a short explanation of the new part of the Civil Code.

Thank you Alison Frankel at Reuters for bringing to my attention Gutierrez-Brizuela v. Lynch. An immigration case which triggered a delightfully written judgment by Gorsuch CJ on the delegation of power to agencies. In particular the founding fathers’ intention, against the background of separation of powers,  with agencies room for statutory interpretation.

Both Ms Frankel’s article and judge Gorsuch’s pieces do much more justice to the debate than I can do in a blog post so I will leave readers first of all to read both. Judge Gorsuch, referring to precedent (Chevron in particular), notes

‘There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.’

Ms Frankel notes that Chevron directed courts defer to executive-branch agencies in the interpretation of ambiguous statutes. Justice Gorsuch reviews what exactly was intended by Chevron and points to the difficulty in excessive deferring to agencies’ interpretation of statutes.

I would summarise his views as ‘Congress meant trias, not quattuor politica.’

My knowledge of US civil procedure does not stretch to understanding what impact Gorsuch CJ’s views have on current US administrative /public law. Anyone out there who can tell me please do. At any rate, the judgment is great material for comparative constitutional law classes, the CJEU’s ECB (C-270/12) case being an obvious port of call.

Geert.

Our co-editor Matthias Weller has written an article on jurisdiction clauses under the Brussels Ibis Regulation and the Hague Choice of Court Convention (Choice of Forum Agreements under the Brussels I Recast and under the Hague Convention: Coherences and Clashes). The full version is available here. The abstract reads as follows:

Choice of forum agreements are widely used. International uniform law has entered into force recently, namely the Hague Convention of 30 June 2005 on Choice of Court Agreements on 1 October 2015, the Brussels Ibis Regulation on 10 January 2015. Both instruments are formally independent but in the legislative process the drafters of the Convention took notice of the Brussels I Regulation, and the European legislator took notice of the Convention while working on the Recast of the Brussels I Regulation in order to “strengthen” choice of forum agreements and to bring about “coherence” of the Brussels regime with the Hague Convention. Against this background, the two instruments now in place are compared in respect to its most important policy decisions: the definition of the internationality of the case as a prerequisite of the applicability of the respective instrument, the understanding of the choice of law rule on the nullity of the agreement, the scope and mode of a public policy control of the agreement and, most extensively, the respective mechanisms for coordinating parallel proceedings, in particular the new mechanism under the Brussels Ibis Regulation granting priority for the designated court. This new mechanisms turns out to be too complex, leaving important points open. Therefore, de lege ferenda an alternative mechanism is suggested along the lines of the Hague Convention by making use of the recent judgment of the ECJ in Gothaer Versicherung. This alternative would not only be much easier and thus more predictable, it would also be able to coordinate each and every parallel proceedings, not only those involving a choice of court agreement.

In C-195/15 Mulhaupt, the question referred reads 

Does the term ‘right in rem’ in Article 5(1) of (…) Regulation (…) 1346/2000 (…) on insolvency proceedings include a national rule such as that contained in Paragraph 12 of the Grundsteuergesetz (Law on real property tax, ‘GrStG’) in conjunction with the first sentence of Paragraph 77(2) of the Abgabenordnung (Tax Code, ‘AO’), pursuant to which real property tax debts are by operation of law a public charge on real property and the property owner must accept enforcement against the property in that respect?

Applicant is the trustee in bankruptcy of Société civile immobilière Senior Home, a French registered company. Gemeinde Wedemark is forcing the sale of rel estate belonging to Senior home, linked to arrays in real estate tax. It is suggested by the referring court that the qualification under German law, of real property tax (also known as ‘stamp duties’ or ‘estate taxes’), owed to public authorities, as rights in rem, mean that the forced sale of the site at issue, as a result of Article 5(1) of Regulation 1346/2000, is covered by German law and is therefore not subject to French law, which in the case at issue is the lex concursus of the insolvency proceedings that have been opened. Regulation 1346/2000 in the meantime has been replaced by Regulation 2015/848 however the provisions at issue have not materially changed.

Szpunar AG Opined end May (other than a Tweet I have kept schtum about the Opinion so far, for exam reasons).The Opinion is as yet not available in English.

In terms of applicable law, Article 4 of the Regulation is the general rule: unless otherwise stated by the Regulation, the law of the State of the opening of proceedings is applicable.

The general rule of Article 4 inevitably had to be softened for quite a number of instances. As noted in the introduction, insolvency proceedings involve a wide array of interests. The expediency, efficiency and effectiveness craved inter alia by recital 2 (old; now 3) of the Regulation, has led in particular to the automatic extension of all the effects of the application of the lex concursus by the courts in the State of opening of the proceedings. That could not be done without there being exceptions to the general rule:

In certain cases, the Regulation excludes some rights over assets located abroad from the effects of the insolvency proceedings (as in Articles 5, 6 and 7). In other cases, it ensures that certain effects of the insolvency proceedings are governed not by the law of the State of the opening, but by the law of another State, defined in the abstract by Articles 8, 9, 10, 11, 14 and 15. In such cases, the effects to be given to the proceedings opened in other States are the same effects attributed to a domestic proceedings of equivalent nature (liquidation, composition, or reorganization proceedings) by the law of the State concerned. Of particular note are precisely Article 5 on third parties’ rights in rem, but also Article 10 on employment contracts, and Article 13 on ‘detrimental acts’.

The precise demarcation of rights in rem hovers between the classic interpretative rule of EU private international law, namely the principle of autonomous interpretation, and the lack of a European Ius Commune on what rights in rem are. The Advocate General completes his already extensive analysis in Lutz, with a combined reference to the recitals of the Regulation, and the Virgós/Schmit Report.

In particular, Article 5(2) does serve as something of a straightjacket, leading to the conclusion that rights in rem require restrictive interpretation: once the first hurdle of qualification using national law (of the rei sitae) is passed, the right also needs to  meet with the fundamentals of what the Virgos-Schmit report defines as rights in rem (at 41-45 of the Opinion): these are (at 103 of the Report): a right in rem basically has two characteristics

(a)its direct and immediate relationship with the asset it covers, which remains linked to its satisfaction, without depending on the asset belonging to a person’s estate or on the relationship between the holder of the right in rem and another person;

(b)the absolute nature of the allocation of the right to the holder. This means that the person who holds a right in rem can enforce it against anyone who breaches or harms his right without his assent (e.g. such rights are typically protected by actions to recover); that the right can resist the alienation of the asset to a third party (it can be claimed erga omnes, with the restrictions characteristic of the protection of the bona fide purchaser); and that the right can thus resist individual enforcement by third parties and in collective insolvency proceedings (by its separation or individual satisfaction).

The Virgos-Schmit report in this respect cross-refers to the 1968 Brussels Convention however it is noteworthy that the CJEU, in defining rights in rem under the now Brussels I recast Regulation, does not in turn refer to the Virgos-Schmit report.

In conclusion therefore the AG suggests that the right at issue is indeed a right in rem under Article 5. Finally, that it benefits a public authority (the inland revenue) rather than a private individual or legal person, does not impact upon that qualification: Szpunar AG correctly highlights that the public character of the creditor is not a determining criteria in either the recitals of the Regulation or the Virgos-Schmit report.

A prima facie straightforward question met by complete analysis of the AG which in passing solves more issues than those raised by the referring court: this Opinion may well become an important part of authoritative sources in applying the Insolvency Regulation..

Geert.

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

Project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters”

English or German native speaker with law degree and knowledge / experience in international private and procedural law, for writing, editing, and translating of legal texts. French or Italian or Spanish native speakers with good German knowledge can also apply.

The project is conducted in cooperation with a group of universities from various EU Member States. The project work consists, inter alia, in the selection of international case law in the various areas of judicial cooperation in civil matters and its preparation with case headnotes and the development of so-called ‘compendia’ which provide systematic explanations of how the European Regulations are applied by the CJEU and the courts of the Member States in the European practice.

Part time preferred.
Particularly suited for younger private international law researchers.
Project period: between 12 up to 18 months

IPR Verlag is located in the heart of Munich, close to the university. Occasional home office may be considered.

If interested to join our team, please send your application and CV to:
thomas.simons[at]unalex.eu

IPR Verlag GmbH
Dr. Thomas Simons
Martiusstr. 1, 80802 Munich, Germany
For further information, please do not hesitate to contact us:
+49 (0)89 337 332

Irwin Law has published (August 2016) the second edition of Conflict of Laws by Stephen Pitel (Western University) and Nicholas Rafferty (University of Calgary).  This treatise aims to explain and analyze the rules of the conflict of laws in force in common law Canada in a clear and concise manner.  For the second edition, the chapter on jurisdiction has been rewritten in light of the Supreme Court of Canada’s decision in Club Resorts Ltd v Van Breda (2012) and the evolving jurisprudence under the Court Jurisdiction and Proceedings Transfer Act.  In addition, a new chapter on matrimonial property division has been added.  All chapters have been updated to reflect new decisions, legislative changes and recent scholarship.

The first edition (2010) was shortlisted for the Walter Owen Book Prize and has been cited in decisions of courts across Canada including the Supreme Court of Canada.

More information is available here.

By Decision (EU) 2016/1366 of 10 August 2016, the European Commission confirmed the participation of Estonia in the enhanced cooperation that led to Regulation (EU) No 1259/2010 on the law applicable to divorce and legal separation (Rome III).

The Rome III Regulation will apply to Estonia from 11 February 2018. Its rules will only apply in Estonia to legal proceedings instituted and to choice-of-law agreements concluded as from the latter date. However, effect shall also be given in Estonia to an agreement on the choice of the applicable law concluded before 11 February 2018, provided that it complies with Articles 6 and 7 of Regulation.

Seventeen Member States, including Estonia, are bound by the Rome III Regulation. Fourteen Member States have been taken part in this enhanced cooperation since the beginning (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia), and three more have joined in subsequently: Lithuania, under Decision (EU) 2012/714, Greece, under Decision (EU) 2014/39, and now Estonia.

Stefan Arnold from the University of Graz has edited a volume on fundamental questions of European Private International Law (Grundfragen des Europäischen Kollisionsrechts, Mohr Siebeck 2016, VII + 167 pages, ISBN 978-3-16-153979-4). Published in German the volume contains, among others, chapters on party autonomy, renvoi, ordre public and connecting factors. The editor  has kindly provided us with the following more detailed information:

European Private International Law serves the European idea of an area of freedom, security and justice. For that task, it seems crucial that the legal actors of European Private International Law address its fundamentals. The fundamentals – or fundamental questions – of European Private International Law are manifold. Some of them are discussed in this volume. They concern the political framework within which European Law operates, the challenges of modern concepts of “family” or the relationship of Private International Law and Religious Law. Last not least, European Private International Law needs to ascertain the regulatory function of central Conflict of Laws concepts such as the idea of connecting factors, party autonomy, ordre public and renvoi.

Table of contents

• Christoph Althammer: Das Konzept der Familie im Europäischen Internationalen Familienrecht [The Concept of „Family“ in European International Family Law]
• Stefan Arnold: Gründe und Grenzen der Parteiautonomie im Europäischen Kollisionsrecht [The Foundations and Limits of Party Autonomy in European Private International Law]
• Gerald Mäsch: Der Renvoi im Europäischen Kollisionsrecht [Renvoi in European Private International Law]
• Mathias Rohe: Europäisches Kollisionsrecht und religiöses Recht [European Private International Law and Religious Law]
• Michael Stürner: Der ordre public im Europäischen Kollisionsrecht [Ordre Public in European Private International Law]
• Rolf Wagner: Das Europäische Kollisionsrecht im Spiegel der Rechtspolitik [European Private International Law and Legal Policy]
• Marc-Philippe Weller: Anknüpfungsprinzipien im Europäischen Kollisionsrecht – eine neue „kopernikanische Wende“? [Connecting Factors in European Private International Law – a New “Copernican Revolution”?]

I have included Article 15 of the Brussels IIa or IIbis Regulation, 2201/2003, in full below. It allows a court to relinquish a case to another court, if that is in the best interest of the child. I once referred to it in an exam, asking students to discuss Zwiefka MEP’s proposal at the time to introduce an Article 15-type exception in what is now the Brussels I Recast Regulation. Those discussions in the meantime have led in particular to Articles 33-34 of the Recast, on lis alibi pendens with courts in third States and the potential for EU courts to relinquish their jurisdiction.

The question I asked students was how they would rate Article 15 (which incidentally does not require the case to be pending in the alternative court to which the case is being deferred) against classic forum non conveniens provisions. The point being that the former puts courts very much in a straightjacket, which the CJEU was bound to have to untangle. That is exactly what is at stake in C-428/15 Child and Family Agency v JD in which Wathelet AG opined Mid June.

Agne Limante has full listing of the AG’s arguments in CJEL,  I should like to add that the Irish courts were particularly concerned with forum shopping: at 22:

In that regard, it (the referring court, GAvC) considers that the settling in Ireland of United Kingdom nationals who wish to conceal their children from the competent child protection authorities must not be encouraged and, more broadly, that opportunities for forum shopping must not be created or tolerated. However, it asks to what extent such considerations may be taken into account in the implementation of Article 15 of Regulation No 2201/2003.

Interesting case and ditto Opinion.

Geert.

Article 15

Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court’s own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

Most of the political attention to the panel’s award on the South East China Sea issue has gone to the implications for Chinese sovereignty in the area. That is in itself neither surprising nor problematic. It is worth highlighting however that 2 out of 6 of the Panel’s conclusions, as listed by Herbert Smith Freehills, relate to environmental protection:

1. failed to protect and preserve the marine environment by tolerating and actively supporting Chinese fishermen in the harvesting of endangered species and the use of harmful fishing methods that damaged the fragile coral reef ecosystem in the South China Sea;
2. inflicted severe harm on the marine environment by constructing artificial islands and engaging in extensive land reclamation at seven reefs in the Spratly Islands;

If one includes a third one, ‘interfered with the traditional fishing activities of Philippine fishermen at Scarborough Shoal;’ as being part of the principle of sustainable development, then half of the Chinese infringements relate to environmental protection in the wide sense. These findings highlight how closely linked environmental protection is to natural resources and to territory generally, and how environmental protection has come of age and is now part of core debates in public international law. Sadly also, of course, how in their search for scarce resources plenty of nations continue to trample freely on values which the 1992 Rio Declaration already found to essentially be part of customary international law.

A Monash student of mine is writing on the Panel report from the environmental angle and I shall share as and when that analysis is available.

Geert.

Si terrà a Torino, il 14 e 15 ottobre 2016, il secondo incontro organizzato nell’ambito del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice (segnalato in questo post).

L’incontro, stavolta, avrà ad oggetto il regolamento (UE) n. 655/2014 istitutivo dell’ordinanza europea di sequestro conservativo su conti bancari (OESC).

Si tratta, come il precedente, di un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti. La prima giornata sarà dedicata ai provvedimenti cautelari italiani e l’OESC, nonché alla richiesta di informazioni del creditore sui conti correnti bancari del debitore, mentre il secondo giorno si parlerà di esecuzione e dei rimedi possibili avverso l’OESC.

Interverranno Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Paolo Lombardi e Carlo Pavesio (entrambi avvocati del Foro di Torino).

La partecipazione al seminario è gratuita. Le iscrizioni sono già aperte e devono essere richieste tramite e-mail all’indirizzo info@europeancivilprocedureforlawyers.eu non oltre il 1° ottobre 2016.

Ulteriori informazioni sono disponibili qui.

È apparso sulla Gazzetta ufficiale dell’Unione europea del 26 luglio 2016 il regolamento (UE) 2016/1191 del 6 luglio 2016 che promuove la libera circolazione dei cittadini semplificando i requisiti per la presentazione di alcuni documenti pubblici nell’Unione europea.

Il nuovo strumento è stato adottato sulla base dell’art. 21, par. 2, del Trattato sul funzionamento dell’Unione europea, che consente al Parlamento europeo e al Consiglio di adottare disposizioni intese a facilitare l’esercizio del diritto dei cittadini dell’Unione di circolare e soggiornare nel territorio degli Stati membri, adottando le misure necessarie a questo scopo, “salvo che i trattati non abbiano previsto poteri di azione a tal fine”.

Per la materia trattata — le condizioni alle quali è possibile invocare di fronte alle autorità di uno Stato membro gli atti pubblici formati in un diverso Stato membro — il regolamento integra, nei fatti, la più ampia cornice del diritto internazionale privato dell’Unione europea, sviluppatosi sulla base dell’art. 81 del Trattato relativo alla cooperazione giudiziaria in materia civile.

In sostanza, il regolamento dà vita ad un sistema di esenzione dei documenti pubblici dalla legalizzazione o formalità analoghe e di semplificazione di altre formalità.

Il regolamento riguarda soltanto l’autenticità dei documenti pubblici. Gli Stati membri continueranno dunque ad applicare le norme nazionali sul riconoscimento del contenuto e degli effetti dei documenti pubblici provenienti da un altro paese dell’Unione.

I documenti pubblici destinati a beneficiare del nuovo regime sono appena quelli indicati all’art. 2 del regolamento. Fra questi, le certificazioni di nascita, di esistenza in vita, di decesso, gli atti dello stato civile relativi al matrimonio, al divorzio, alla filiazione, e i certificati del casellario giudiziale.

In sintesi, per effetto della nuova misura — che sarà applicabile nella sua interezza solo a decorrere dal 16 febbraio 2019 — i documenti pubblici rilasciati in uno Stato membro dell’Unione dovranno essere accettati come autentici in un altro Stato membro senza necessità di legalizzazione. Inoltre, verrà meno l’obbligo di fornire in tutti i casi una copia autenticata e una traduzione asseverata dei documenti pubblici, potendo essere utilizzato un modulo standard multilingue da presentare come ausilio alla traduzione, allegato al documento pubblico per evitare l’obbligo di traduzione.

Quanto ai rapporti fra le nuove norme e la Convenzione dell’Aja del 5 ottobre 1961 sull’apostille, il regolamento si preoccupa di chiarire, innanzitutto, che il regime europeo non pregiudica “la facoltà delle persone di continuare a beneficiare, se lo desiderano, di altri sistemi di esenzione dei documenti pubblici dalla legalizzazione o da formalità analoghe applicabili tra Stati membri”, aggiungendo, in particolare, che il nuovo regolamento costituisce “uno strumento separato e autonomo rispetto alla convenzione sull’apostille” (considerando n. 4). Pertanto, “anche se non dovrebbe essere possibile per le autorità degli Stati membri di richiedere un’apostille quando una persona presenta loro un documento pubblico cui si applica il presente regolamento e sia rilasciato in un altro Stato membro”, il regolamento non impedisce agli Stati membri di apporre un’apostille se una persona scelga di farne richiesta (considerando n. 5).

Ai sensi dell’art. 19, il regolamento, in effetti, “non pregiudica l’applicazione delle convenzioni internazionali di cui uno o più Stati membri sono parte al momento dell’adozione del regolamento stesso e che riguardano materie disciplinate dallo stesso”, salvo prevalere, “per le materie rientranti nel suo ambito di applicazione e nella misura in esso prevista”, sulle altre disposizioni contenute negli accordi o intese bilaterali o multilaterali conclusi dagli Stati membri “nelle relazioni fra gli Stati membri che ne sono parte”.

Lo stesso art. 19, al par. 4, innovando l’approccio sin qui prevalentemente seguito dall’Unione sul terreno delle relazioni esterne (anche alla luce del parere 1/13 della Corte di Giustizia, del 14 ottobre 2014), stabilisce che il regolamento “non impedisce agli Stati membri di negoziare, concludere, aderire a, modificare o applicare accordi e intese internazionali con paesi terzi riguardanti atti di legalizzazione o formalità analoghe per documenti pubblici su materie oggetto del presente regolamento e rilasciati dalle autorità degli Stati membri o di paesi terzi al fine di essere utilizzati nelle relazioni tra gli Stati membri e i paesi terzi interessati”, né impedisce agli Stati membri di “decidere in merito all’accettazione dell’adesione di nuove parti contraenti a tali accordi e intese a cui uno o più Stati membri aderiscono o possono decidere di aderire”.

Here’s the recipe for Lungowe v Vedanta at the High Court.

Obtain one lb of C-291/02 Owusu: European authority: forum non conveniens has no place in the Brussels jurisdictional regime; particularly now in Article 4 of the Brussels I Recast for as Coulson J points out at 57 in his judgment in Lungowe, Articles 33-34 of the Recast Regulation do foresee consideration in the event of parallel proceedings outside of the EU.

Mix with one lb of Chandler v Cape : English authority: parent companies may in circumstances be held liable for the actions of their foreign subsidiaries; referred to with approval by the Dutch Courts in Shell.

Have Zambian claimants in a case of environmental pollution employ Article 4 to establish jurisdiction against a holding company established in England. The company is a holding company for a diverse group of base metal and mining companies, including the second defendant, Konkola.

The fact that Vedanta are domiciled in the United Kingdom is, evidently, one of the principal reasons why they have been pursued in these proceedings (see Coulson J’s acknowledgment of same at 76). This is a manifestation of forum shopping which the CJEU has certainly encouraged. Moreover, as Coulson J suggests at 77-78, claimants also wish to pursue Vedanta because they are seen as the real architects of the environmental pollution in this part of Zambia. The argument is that, since it is Vedanta who are making millions of pounds out of the mine, it is Vedanta who should be called to account. On balance, the use of Vedanta as an anchor defendant can hardly be seen as a malicious ‘device’ or an abuse of the anchor defendant mechanism.

On that issue of abuse, reference is made by the High Court to Freeport and to CDC at the CJEU. There is no suggestion of course that either are direct precedent for the anchor defendant mechanism in residual national private international law. (Which is the case here: for the Brussels Recast joinder mechanism in Article 7 most certainly does not apply to defendants domiciled outside of the EU). It is telling therefore that the Court does refer to them here. (And inevitably raises the question whether English Court will continue to do so after Brexit).

Both 20 Essex Street and RPC have further discussion. All in all an uplifting day in the English Courts for corporal social responsibility campaigners.

European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2

Enhancing cooperation between authors from various Member States

University of Zagreb – 29/30 September 2016

The University of Zagreb is organising a conference on 29/30 September 2016 on European international civil procedure and new approaches concerning European legal information. This conference is part of a project, co-financed by the European Commission and organised by the University of Innsbruck together with the Universities of Genoa, Zagreb, Valencia, Prague and Riga and the legal publisher IPR Verlag.

The objective of the unalex project is the creation of solid multilingual information on the application of the European legal instruments of judicial cooperation in civil matters in the European area of justice and to provide the European legal discussion with an important focus of genuinely European legal literature. The project aims at bringing together authors in the area of European international civil procedure and conflict of laws and promoting techniques of joint legal publishing with the objective of creating forms of multilingual legal literature for readers in the entire European Union.

The conference in Zagreb has two parts:

29 September 2016 – Shaping European legal information – new approaches

Thursday afternoon (14:00-17:30) is dedicated to the development of new approaches concerning the shaping of European legal information. A round table discussion with supreme court judges from various Member States is planned on the subject “European Leading Cases series – a project to be developed?”. Furthermore innovative strategies for the development of European legal literature and the possible enhancement of cross-border cooperation of European legal authors will be discussed.

30 September 2016 – European international civil procedure – a system in the making

The second day (9:30 – 13:99) will host a conference on “European international civil procedure – a system in the making”. It will discuss common lines of European civil procedure that evolve throughout the multitude of EU civil procedure regulations. The conference will be chaired by Prof. Hrovje Sikiri?, University of Zagreb, and Prof. Andreas Schwartze, University of Innsbruck.

Speakers:

Prof. Rainer Hausmann, Munich – The European system of international civil procedure

Prof. Matthijs ten Wolde, University of Groningen – Third State relations

Prof. Davor Babi?, University of Zagreb – Scope of application (in particular temporal scope)

Dr. Susanne Gössl, University of Bonn – The role of public policy in the European civil justice system

Prof. Vesna Rijavec, University of Maribor – European enforcement of judgments

Dr. Eva Lein, British Institute of International and Comparative Law – Exiting an ever closer system – consequences of Brexit

Prof. Erich Kodek, Wirtschaftsuniversität Vienna, Judge Austrian Supreme Court – Horizontal harmonisation of instruments of European civil procedure – towards a European Code of Civil Procedure?

Participation to the conference is free of charge.

For additional information and registration please contact Ms Sara Ricci at IPR Verlag GmbH: sara.ricci@simons-law.com

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The fourth issue of 2015 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released.

This issue of the Rivista features the texts – updated and integrated with a comprehensive bibliography – of the speeches delivered during the conference “For a New Private International Law” that was hosted at the University of Milan in 2014 to celebrate the Rivista’s fiftieth anniversary.

The speeches have been published in four sections, in the order in which they were delivered.

The first section, on “Fundamentals of Law No 218/1995 and General Questions of Private International Law”, features the following contributions:

Fausto Pocar, Professor Emeritus at the University of Milan, ‘La Rivista e l’evoluzione del diritto internazionale privato in Italia e in Europa’ (The Rivista and the Evolution of Private International Law in Italy and Europe; in Italian).

Fifty years after the foundation of the Rivista, this article portrays the reasons that led to the publication of this journal and its core features, in particular its unfettered nature and the breadth of its thought with respect to the definition of private international law. In this regard the Rivista – by promptly drawing attention to the significant contribution provided by the law of the European Union in the area of jurisdiction and conflict of laws – succeeded in anticipating the subsequent developments, which resulted in the impressive legislation of the European Union in the field of private international law since the entry into force of the Treaty of Amsterdam in 1999. These developments have significantly affected the Italian domestic legislation as laid down in Law No 218 of 1995. As a result of such impact, the Italian system of private international law shall undergo a further revision in order to harmonize it with the European legislative acts, as well as with recent international conventions adopted in the framework of the Hague Conference on Private International Law, to which the European Union – a Member of the Conference – is party.

Roberto Baratta, Professor at the Scuola Nazionale dell’Amministrazione, ‘Note sull’evoluzione del diritto internazionale privato in chiave europea’ (Remarks on the Evolution of Private International Law in a European Perspective; in Italian).

National sovereignties have been eroded in the last decades. Domestic systems of conflict of laws are no exceptions. While contributing with some remarks on certain evolving processes that are affecting the private international law systems, this paper notes that within the EU – however fragmentary its legislation in the field of civil justice may be – the erosion of national competences follows as a matter of course. It then argues that the EU points to setting up a common space in which inter alia fundamental rights and mutual recognition play a major role. Thus, a supranational system of private international law is gradually being forged with the aim to ensure the continuity of legal relationships duly created in a Member State. As a result, domestic systems of private international law are deemed to become complementary in character. Their conceptualization as a kind of inter-local rules, the application of which cannot raise obstacles to the continuity principle, appears logically conceivable.

Marc Fallon, Professor at the Catholic University of Louvain, ‘La révision de loi italienne de droit international privé au regard du droit comparé et européen des conflits de lois’ (The Recast of the Italian Private International Law with Regard to Comparative and European Conflict of Laws; in French).

The comparison of the present state of Italian choice-of law rules with the overall revision process at stake abroad and with the new European Union policy in civil matters shows the need for a profound recast, in particular in family law matters. First, several European and international instruments have precedence over national rules, namely in the field of parental responsibility, divorce, maintenance obligations, succession, and shortly matrimonial property. Due to their universal application, these instruments leave no place to national choice-of law rules in the subject matters falling into their scope. Second, a recast of the Italian rules on private international law would give the opportunity to adapt some current rules to new values and objectives. For example, the Kegel’s ladder giving priority to nationality as a connecting factor should be inverted, giving priority to habitual residence. To achieve such result, a small group of scholars representative of the main ·streams in Italian private international law should prepare a draft and persuade political stakeholders that updating national law promotes legal certainty and a positive image of society. The European context of the approximation of choice-of-law rules should not withhold them from starting such project, so long as the Union delays the adoption of a globalized private international law code. On the other hand, one must be aware of the changing nature of law in modern society, and accept that enacting new rules requires a continuous reappraisal process.

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, ‘The Transnational Context: Impact of the Global Hague and Regional European Instruments’ (in English).

As a result of the growing impact of global and EU choice of law instruments, modern private international law statutes in Europe increasingly tend to have a “layered” structure, with norms derived from (1) global (Hague) and (2) regional (EU) instruments, completed by supplementary, or residual (3) domestic private international law rules. Law No 218/1995 already gives prominence to international conventions (Article 2), to which the new law should obviously add EU regulations. Consideration might be given to the inclusion by reference in the new law of three Hague Conventions not yet ratified by Italy (on the Recognition of the Validity of Marriages, Protection of Adults and Access to Justice). This would enhance certainty, predictability and respect for private rights in cross-border situations. The new law should maintain the method of incorporation by reference to regional and global instruments. Currently such references are few in number, but in the new law they are bound to expand considerably. This article discusses how the reference method could best be applied to, on the one hand, instruments on applicable law, and, on the other, instruments on jurisdiction, recognition and enforcement of decisions as well as administrative cooperation. As globalization and regional integration unfold, Italy will be facing many more foreign decisions and situations created abroad than foreseen in the 1995 Law. Articles 64 and following probably go a long way to respond to this challenge in respect of foreign decisions. In respect of foreign legal situations – not established or confirmed by a judicial or administrative decision – Article 13 of the Law No 218/1995 on renvoi may have been thought of a way of facilitating the task of the Italian authorities and of bringing international harmony. But, partly as a result of the growing weight of international and regional instruments which generally reject renvoi, this technique tends to become an anomaly in modern private international law codes. Instead, other ways of introducing the flexibility needed might be considered, such as Article 19 of the Belgian Code on Private International Law, or Article 9 Book 10 of the Dutch Civil Code.

The second section, on “Personal Status”, features the following contributions:

Roberta Clerici, Professor at the University of Milan,’Quale futuro per le norme della legge di riforma relative allo statuto personale?’(Which Future for the Provisions on Personal Status of the Italian Law Reforming the Private International Law System?; in Italian).

Since its first year of publication, the Rivista has devoted ample space to the personal status of the individual (including the right to a name), family matters, maintenance obligations and successions. In fact, both the relevant international treaties and the Italian provisions, including of course those laid down in Law No 218 of 31 May 1995 reforming the Italian private international law system – which has introduced significant modifications especially in the aforementioned areas of the law – were examined and commented. However, the regulations of the European Union and the international conventions that entered into force after the adoption of the Italian law reforming private international law designate habitual residence as the principal connecting factor. One may therefore wonder whether nationality, which is the connecting factor laid down in most of the provisions in Law No 218/1995, should not be replaced with that of habitual residence. An additional question stems from the “incorporation” in Law No 218/1995 of the 1961 Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of infants (Article 42 of Law No 218/1995) and of the 1973 Hague Convention on maintenance obligations (Article 45 of Law No 218/1995), which have been replaced by the 1996 Hague Convention and the 2007 Protocol, respectively. With respect to the 1961 Hague Convention, a legislative proposal is currently being discussed, however it raises some questions concerning interpretation. The same proposal puts forth a general provision on the replacement of the “nationalized” Conventions with the new Conventions ratified by the European Union. However, quite surprisingly, the proposal does not mention the regulations of the European Union that have replaced other conventions that are referred to in Law No 218/1995.

Alegría Borrás, Professor Emeritus at the University of Barcelona,’La necessità di applicare strumenti convenzionali e dell’Unione europea: l’ambito della persona, della famiglia e delle successioni. La situazione spagnola e quella italiana a confronto’ (The Need to Apply International and European Union Instruments: Persons, Family, and Successions. A Comparison between the Italian and Spanish Systems; in Italian).

This article examines the characteristics and evolution of the Spanish system of private international law in questions related to persons, family and successions taking into account the need to apply European Union instruments and international Conventions.  The main points addressed in this article are related to the absence of a law of private international law and the fact that Spain has a non-unified legal system.

Luigi Fumagalli, Professor at the University of Milan, ‘Il sistema italiano di diritto internazionale privato e processuale e il regolamento (UE) n. 650/2012 sulle successioni : spazi residui per la legge interna?’ (The Italian System of Private International and Procedural Law and Regulation (EU) No 650/2013 on Successions: Is There Any Room Left for the Italian Domestic Provisions?; in Italian).

Regulation No 650/2012 has a pervasive scope of application, as it governs, in an integrated manner, all traditional fields of private international law: jurisdiction, governing law, recognition and enforcement of foreign judgments. As a result, the entry into force of the Regulation leaves little, if any, room for the application of domestic legislation, and chiefly of the provisions of Law No 218/1995, in the same areas. With respect to jurisdiction, in fact, an examination of the rules in the Regulation shows that they apply every time a dispute in a succession matter is brought before a court in a Member State: no room therefore remains for internal rules, which, as opposed to the situation occurring with respect to Regulation No 1215/2012, cannot ground the exercise of jurisdiction in the circumstances in which the Regulation does not apply: not even the Italian rule on lis pendens seems to apply to coordinate the exercise of Italian jurisdiction with the jurisdiction of non-Member State. The same happens with respect to the conflict-of law rules set by the Regulation, since they have a universal scope of application. The only remaining area in which internal rules may apply is therefore that concerning the recognition and enforcement of decisions rendered in non-Member States. The opportunity for a revision of internal rules is therefore mentioned.

Costanza Honorati, Professor at the University of Milan–Bicocca, ‘Norme di applicazione necessaria e responsabilità parentale del padre non sposato’ (Overriding Mandatory Rules and Parental Responsibility of the Unwed Father; in Italian).

The recently enacted Italian Law on the Status Filiationis (Law No 219/2012 and subsequent Legislative Decree No 154/2013) inserts a new PIL rule stating that the principle of shared parental responsibility is mandatory in nature (Article 36-bis). While in the Italian legal system such principle is rooted in the principle of non discrimination among parents, the situation appears to be more controversial in other legal systems, especially in regards of the unmarried father. Several decisions of the ECtHR (from Balbotin to Sporer) have indeed declared the legitimacy of the different treatment for the unmarried father, as long as he has the possibility to claim such right before a judicial court. In the light of the same value underlying these different approach to parental responsibility – to be found in the aim to pursue the best interest of the child in each given case – the present paper questions the opportunity of the new Article 36-bis of the Italian PIL and reflects on the effects of the subsequent Italian ratification of the 1996 Hague Convention.

Carlo Rimini, Professor at the University of Milan, ‘La rifrazione del conflitto familiare attraverso il prisma del diritto internazionale privato europeo’ (The Refraction of Family Conflict through the Prism of the European Private International Law; in Italian).

The prism built up by the European Regulations relating to family law has the effect to refract the family conflict in several different aspects that are supposed to be dealt before different courts and with different laws. As a matter of facts, the rules concerning jurisdiction and applicable law do not have the aim to concentrate (or to try to concentrate) the whole conflict arising from the family’s crisis in the hands of a single judge who applies a single law. This choice has large costs both for the parties who needs to have lawyers in each jurisdiction involved, and for the efficiency of the legal system. Moreover, it often leads to an irrational and unfair solution of the family conflict. This is especially evident dealing about the patrimonial effects of the family’s breaking.

Ilaria Viarengo, Professor at the University of Milan, ‘Sulla disciplina degli obblighi alimentari nella famiglia e dei rapporti patrimoniali tra coniugi’ (On the Regulation of Family Maintenance Obligations and Matrimonial Property; in Italian).

This article examines the provisions of the Italian Private International Law Act (Law 31 May 1995 No 218) on maintenance obligations and matrimonial property regimes. It analyses these provisions in the prospect of a possible reform of Law No 218/1995. With particular regard to maintenance obligations, currently regulated by a common harmonized system of conflicts of law rules, this article underlines how Article 43 of Law No 218/1995, which refers to the 1973 Hague Convention, appears to be no longer relevant. With respect to matrimonial property, a new EU regulation is forthcoming, which will replace the current Article 30 of Law No 218/1995. In this regard, this article examines the amendments deemed to be necessary in the Italian law in the view of the new Regulation, focusing in particular on the need to protect the interests of third parties.

Franco Mosconi, Professor Emeritus at the University of Pavia, ‘Qualche considerazione in tema di matrimonio’ (Some Remarks on Marriage; in Italian).

Assuming that no revolutionary change is foreseen in the approach of the Italian legal system regarding same sex marriages – also in light of the case law of the Corte Costituzionale and the European Court of Human Rights – this paper considers several issues bound to arise from foreign same sex marriages. The paper also criticizes the excessive competitive character of some States’ legislation in favour of same sex marriages.

The third section, on “Companies, contractual and non-contractual obligations”, features the following contributions:

Riccardo Luzzatto, Professor Emeritus at the University of Milan, ‘Introduzione alla sessione: Società, obbligazioni contrattuali ed extracontrattuali’ (Opening Remarks: Companies, Contractual and Non-Contractual Obligations; in Italian).

The fiftieth anniversary of the Rivista provides an important opportunity to share some thoughts to the current status of the law in this complex sector of the conflict of laws, with particular regard to the prevailing situation in Italy. Actually, this anniversary prompts to consider the present status of the law in comparison with that existing at the time when the Rivista was first published, i.e. fifty years ago. From this point of view it is certainly appropriate to qualify the changes occurred in this period as a true conflict-of laws revolution, borrowing an expression frequently used with reference to the United States. The Italian revolution originates from two different factors: the adoption in 1995 of a new Act on private international law and the massive intervention of European Community law into this sector of the legal systems of the Member States. The problems faced by the lawmaker, the judge and any other interpreter are as a consequence rather complex. The national, domestic character of the rules of private international law has not been cancelled by the new powers conferred to the EU institutions by the Treaty of Amsterdam, thus obliging to carefully review and determine the relationship and reciprocal interferences of national and supranational sources in any given field where European common rules have been enacted. This is a necessary, but complex exercise that cannot be avoided, and can bring to very different results depending on the specific features of the legal institutions under consideration. Two interesting and significant examples are offered by the subject matters considered in this Session, i.e. the law of companies and other legal entities on the one part, and the law of obligations, both contractual and non-contractual, on the other.

Ruggiero Cafari Panico, Professor at the University of Milan, ‘Società, obbligazioni contrattuali ed extracontrattuali. Osmosi fra i sistemi, questioni interpretative e prospettive di riforma della legge n. 218/1995’ (Companies, Contractual and Non-Contractual Obligations. Osmosis between Systems, Questions of Interpretation, and Prospect of a Recast of Law No 218/1995; in Italian).

This paper focuses on the need for reform of the Italian private international law rules in order to adapt them to the principles of the European internal market. The continuous development of judicial cooperation in civil matters having cross-border implications has progressively reduced the scope of application of national conflict of law rules and deeply influenced the domestic regulation of matters not yet harmonized. This process of osmosis is not free from difficulties. The application of the criteria indicated in European private international law regulations to cases not pertinent to the internal market may be questionable. Similar concepts, when used in different European instruments, may lead to different results in connection with the choice of applicable law and of appropriate jurisdiction. Achieving a parallel ius and forum, although desirable, especially in employment relationships, may thus be difficult. All this has to be taken into account in any reform of the Italian private international law rules, which should be consistent with the proper functioning of the internal market.

Cristina Campiglio, Professor at the University of Pavia, ‘La legge applicabile alle obbligazioni extracontrattuali (con particolare riguardo alla violazione della privacy)’ (The Law Applicable to Non-Contractual Obligations (with Particular Regard to Violations of Privacy); in Italian).

Among the areas where EU private international law has curtailed the scope of application of the Italian Statute on Private International Law of 31 May 1995 No 218 is the area of non-contractual obligations (Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations, Rome II). However, while Article 63 of Law No 218/1995 on product liability has been repealed by Article 5 of the Rome II Regulation, Articles 58 and 59 of Law No 218/1995 – on non-contractual obligations arising out of unilateral promise and under bills of exchange, cheques and promissory notes, respectively – are to be considered still in force, and Articles 60 and 61 of Law No 21811995 – on representation and ex lege obligation – preserve a limited scope of application. In this context, the fate of Article 62 of Law No 218/1995 on torts, which is also applicable to obligations arising out of violations of rights relating to personality, is rather dubious; while, indeed the Regulation expressly excludes these obligations from its scope, de iure condendo it may be envisaged that Article 62 of Law No 218/1995 be adapted to the EU principles and to the case law of the Court of Justice relating to (jurisdiction in case of) violations of rights relating to personality which have been carried out through the mass media, including online defamation.

Domenico Damascelli, Associate Professor at the University of Salento, ‘Il trasferimento della sede sociale da e per l’estero con mutamento della legge applicabile’ (The Transfer of a Company’s Seat Abroad and from Abroad with the Change of the Applicable Law; in Italian).

After having distinguished the case where the applicable law changes as a result of the transfer abroad of the company seat from that in which such change does not take place (either as a result of the shareholders’ will or as a consequence of the conflict of law rules of the State of origin and/or the State of destination), this article analyzes this issue from the standpoint of EU Private International Law – considering, in particular, the case law of the Court of Justice – and it puts forth a series of suggestions to reform the Italian conflict of law and substantive law rules to make the cross-border mobility of Italian companies more efficient.

Paola Ivaldi, Professor at the University of Genoa, ‘Illeciti marittimi e diritto internazionale privato: per una norma ad hoc nella legge n. 218/1995?’ (Maritime Torts and Private International Law: Does Law No 218/95 Need Ad Hoc Provisions?; in Italian).

Due to their intrinsically international character and very frequent cross-border implications, maritime torts typically involve private international law matters. Therefore, with regard to cases and issues falling outside the scope of application of the relevant uniform law Conventions, the problem arises of determining the applicable law according to the conflict-of law rules – which are mostly based on territorial connecting/actors – laid down, at EU level, in the Rome II Regulation (Regulation (EC) No 864/2007). The implementation of such rules, however, is sometimes critical, in particular in presence of “external torts” (i.e., torts which produce damage either on several ships or outside a ship) occurring on the High Seas; with respect to these cases, some national legislations (e.g., the Dutch civil code) have introduced ad hoc rules providing/or the application of the lex fori. In the light of the above, the present contribution assesses the opportunity to adopt the same solution on the occasion of the envisaged revision of the 1995 Italian legislation on private international law (Law No 218/1995), concluding, however, that such integration ab externo of the Regulation is not ultimately required.

Peter Kindler, Professor at the University of Munich, ‘L’amministrazione centrale come criterio di collegamento del diritto internazionale privato delle società’ (The Place of Administration as Connecting Factor in Conflict of Laws in Company Matters; in Italian).

This article reviews and analyses the case law of the Court of Justice of the European Union since the Cadbury Schweppes case (2006) and the principles laid down in secondary European legislation with specific reference to Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings. The author proposes to use the Centre of main interests (COMI) of the company as a connecting factor not only in the field of European insolvency law (Articles 3 and 7 of Regulation No 2015/848), but also in a future Regulation on the law applicable to companies and other bodies. Since the COMI is identical to the company’s central administration (recital 30 of Regulation No 2015/848), this term should be used by such a Regulation. The Author rejects the incorporation theory (Griindungstheorie) and favours the real seat theory (Sitztheorie), instead. In his view, thus, the substantive corporate law of the country applies where most of the company’s creditors and the bulk of the company’s assets are located. At the same time, regulatory arbitrage opportunities are restricted.

Finally, the fourth section, on “International Civil Procedure Law”, features the following contributions:

Sergio M. Carbone, Professor Emeritus at the University of Genoa, ‘Introduzione alla sessione: il diritto processuale civile internazionale’ (Opening Remarks: International Civil Procedural Law; in Italian).

This article has been conceived and prepared with a view to providing an overview of the specific features which have characterized the first fifty years of our Rivista: such features were namely devoted to fostering the development of the Italian system on the resolution of cross-border disputes and the recognition of foreign judgments so as to avoid possible differentiations in their treatment in respect of the corresponding national situation.

Mario Dusi, Attorney at Law in Milan and Munich, ‘La verifica della giurisdizione all’atto dell’emissione di decreto ingiuntivo: regolamenti comunitari, norme di diritto internazionale privato italiano e necessità di riforma del codice di procedura civile italiano?’ (The Assessment of Jurisdiction while Issuing a Payment Order: EC Regulations, Italian Private International Law Provisions, and the Need to Amend the Italian Civil Procedure Code?; in Italian).

With the entry into force of Legislative Decree No 231 of 9 October 2002, Italian companies can finally apply for an injunction order against their contractual partners in Europe, who are defaulting their payment obligations. Such provision however did not specify that the court before which the application is filed must assess the existence (or nonexistence) of the prerequisites related to its international jurisdiction, pursuant to various applicable regulations, including the Italian Private International Law No 218/1995, which is the object of this important conference dedicated to the fiftieth anniversary of the Rivista di diritto internazionale privato e processuale. Before starting an ordinary court proceeding in Italy against a foreign party, in particular a European party, all regulations establishing the Italian jurisdiction must be analyzed, starting from the application of EU Regulation No 44/2001, now replaced by EU Regulation No 1215/2012, continuing with Article 3 of the above mentioned Italian law. These two Regulations notoriously state in Article 26 (of EU Regulation No 44/2001) that “Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation”. Article 28 of EU Regulation No 1215/2012, currently applicable to these cases, states that the verification ex officio of the jurisdiction applies not only when the defendant decides not to appear in Court, but also to injunction proceedings, although this is not expressly mentioned in the provision. Therefore, in the event of non-appearance in court, or of injunction proceedings, as well as in some ordinary cases, the court must verify on its own initiative whether or not it has international jurisdiction and possibly declare ex officio its lack of jurisdiction; otherwise the injunction order will be declared invalid (see the Italian Supreme Court judgment No 10011/2001). According to the Italian Code of Civil Procedure, the application for an injunction order should expressly indicate the reason why such Court is considered to be competent (Article 637 Italian Code of Civil Procedure). If the Italian legislator wanted to prescribe more precisely all necessary requirements for the file of an application for an injunction order, it could refer to EU Regulation No 1896/2006, namely Articles 7 and 8, on the obligation of the court to “examine” all conditions, before issuing the injunction order. Basically, in order to promote the implementation of a United European Jurisdiction, we need to either establish a greater focus on judges while issuing injunction orders, or promulgate a clear internal rule, which imposes the above verifications on Italian judges.

Alberto Malatesta, Professor at the University Cattaneo-LIUC, ‘L’Article 7 della legge n. 218/1995 dopo il regolamento Bruxelles I-bis: quale ruolo in futuro?’ (Article 7 of Law No 218/1995 after Regulation Brussels I-a: Which Future Role?; in Italian).

This Article deals with the residual scope of Article 7 of Law No 218/1995 on lis pendens after the adoption, in recent past years, of numerous EU acts. In fact, the national provisions of Member States have progressively reduced their importance especially after the entry into force of the Brussels I-a Regulation, whose Articles 33 and 34 provide for rules applicabile to proceedings pending before judges of third States. The Author first examines such new regime and its underliyng reasons, secondly its impact on Article 7 of Law No 218/1995, and finally discusses the option of a future revison of the same rule, in line with the content of the European rule.

Francesco Salerno, Professor at the University of Ferrara, ‘L’incidenza del regolamento (UE) n. 1215/2012 sulle norme comuni in tema di giurisdizione e di efficacia delle sentenze straniere’ (The Impact of Regulation (EU) No 1215/2012 on the Italian Provisions on Jurisdiction and Recognition and Enforcement of Foreign Judgments; in Italian).

This paper examines the impact of Regulation (EU) No 1215/2012 (Brussels I Recast) on the Italian rules governing international litigation, as embodied in the Statute of 1995 that reformed the Italian system of private international law. As regards jurisdiction, almost no consequences derive from the Regulation. Article 3(2) of the 1995 Statute does make a reference to uniform European provisions in this area (so as to extend their applicability beyond their intended scope) but it still refers, for this purpose, to the 1968 Brussels Convention. The Author contends that if a legislative reform of the Statute provided for a forum of necessity, this would ultimately give a suitable basis to the trend of Italian courts in favour of a broad interpretation of the heads of jurisdiction resulting from the said reference, no matter whether such broad interpretation departs from the usual interpretation of the corresponding heads of jurisdiction laid down in the Convention. By contrast, the Regulation has a mixed bearing on the domestic regime for the recognition and enforcement of judgments. On the one hand, differently from national rules, the European rules now allow foreign judgments to be enforced internally merely by operation of law. On the other hand, the Regulation, if compared with domestic rules, provides more broadly for the opportunity of scrutinising whether individual judgments are entitled to recognition or not.

Lidia Sandrini, Research Fellow at the University of Milan, ‘L’Article 10 della legge n. 218/1995 nel contesto del sistema italiano di diritto internazionale privato e della cooperazione giudiziaria civile dell’Unione’ (Article 10 of Law No 218/1995 in the Framework of the Italian System of Private International Law and of the Judicial Cooperation in Civil Matters in the European Union; in Italian).

This article addresses Article 10 of Italian Law No 218 of 1995 on private international law. It is submitted that the provision governing jurisdiction with regard to the situation in which Italian judges lack jurisdiction on the merits represents a crucial mechanism in the application of the relevant rules on provisional and protective measures provided for by the EU regulations on jurisdiction and enforcement of judgments. Nevertheless, the practice reveals some difficulties as to the interpretation of the specific connecting factor provided for by the Italian rule. The analysis of the jurisprudence makes it clear that this unsatisfactory situation is due to the drafting, which does not reflect the variety of the instruments in connection with which the rule has to be applied and to the number of modifications of the domestic procedural rules that have been enacted after its entrance into force. In light of that, this article aims to contribute to the debate on the need of a reform of the Italian system of private international law by suggesting the introduction of some more detailed solutions with regard both to the jurisdictional criteria and to the characterization of provisional measures. These suggestions are primarily intended to ensure the consistency of the solutions in the European judicial area, in light of the jurisprudence of the Court of Justice, but also to preserve the coherence of the Italian system of private international law.

Francesca C. Villata, Associate Professor at the University of Milan, ‘Sulla legge applicabile alla validità sostanziale degli accordi di scelta del foro: appunti per una revisione dell’Articolo 4 della legge n. 218/1995’ (On the Law Governing the Substantial Validity of Jurisdiction Clauses: Remarks with a View to a Recast of Article 4 of Law No 218/1995; in Italian).

This article tackles the question whether the wording of Article 4 of Law No 218 of 1995 and, even more, its critical exegesis are (to date) adequate (a) with respect to the transformed legislative context of the European Union (which refers to such domestic legislation when the court seised is Italian), and (b) even more, to meet the needs of practitioners. Furthermore, this article aims to assess whether the solution adopted under the Brussels I-bis Regulation and the 2005 Hague Convention on Choice of Court Agreements – which both identify the law that governs the substantive validity of the choice of court agreements in the law of the State allegedly designated (including its conflict-of-law provisions) – may (or should) prompt an overall recast of the Italian law or, rather, require a more detailed provision which shall coordinate with the provisions on lis pendens.

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale. This issue is available for download on the publisher’s website.

The Friedrich-Schiller-University Jena (FSU), Faculty of Law, invites applications for the post of a fulltime, permanent Lecturer in English Common Law (salary class E 13) beginning 1 October 2016.

Background:

The Faculty of Law at the FSU Jena is operating a LL.B. degree course “International Legal Studies”. It merges the traditional German legal education with a comprehensive training in the law of England and Wales. Graduates will be able to continue their education as a barrister or solicitor in England and Wales, as the degree from this course fulfils the requirements for the academic stage of training set by the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB). The different areas of English Civil Law, Public Law and Criminal Law are taught at a level equal to that of English universities.

For more information on the Faculty please visit http://www.rewi.uni-jena.de/.

Requirements:

The successful candidate should hold a university degree in law from a law school in the UK or from a similar academic background. He or she should be able to demonstrate profound teaching experience in Common Law at an English speaking university at undergraduate and graduate level. A PhD and additional research experience are welcome. He/she should be an English native speaker or master the English language at mother tongue level. Proficiency in the German language is not required, but the candidate should be willing to acquire at least a working knowledge of German.

Tasks:

The successful candidate will teach the different areas of English common law within the degree course “International Legal Studies”. He/she will co-operate directly with the director of the Law & Language Centre and will also support all the academic activities associated with the Centre. It is also expected that he/she will support the Faculty’s Moot Court Competition Teams.

We offer a permanent, full time position. However, the successful candidate will initially be appointed for a limited period of two years with the possibility of permanent employment at a later stage. Salary is paid according to E 13 German TV-L (salary agreement for public service employees). As an equal opportunity employer the FSU is committed to increase the percentage of female scientists and therefore especially encourages them to apply. Severely disabled persons are encouraged to apply and will be given preference in the case of equal suitability.

Further inquiries in English or German may be directed to the Dean of the Faculty of Law, Professor Dr. Walter Pauly (dekan@recht.uni-jena.de).

Application:

Applications should be submitted by email in pdf-format by 12. August 2016 to the Dean of the Faculty of Law, Prof. Dr. Walter Pauly: dekan@recht.uni-jena.de (Friedrich-Schiller-University Jena, Dean of the Faculty of Law, Prof. Dr. Walter Pauly, Carl-Zeiß-Straße 3, D-07743 Jena, Tel: ++49 (0)3641-94200, FAX: ++49 (0)3641-942232).

Application costs must be borne by the applicant.