Droit international général

Corte di giustizia, sentenza del 16 giugno 2016, causa C-511/14, Pebros Servizi Srl — Le condizioni in presenza delle quali, in caso di sentenza contumaciale, un credito si considera “non contestato”, ai sensi dell’articolo 3, par. 1, 2° comma, lett. b), del Regolamento (CE) n. 805/2004 sul titolo esecutivo europeo per i crediti non contestati, devono essere determinate in modo autonomo, sulla base di questo solo regolamento.  ♦  Court of Justice, judgment of 16 June 2016, case C-511/14, Pebros Servizi Srl — The conditions according to which, in the case of a judgment by default, a claim is to be regarded as ‘uncontested’, within the meaning of the second subparagraph of Article 3(1)(b) of Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims, must be assessed autonomously, solely in accordance with that regulation.

Corte di cassazione (Sezioni unite), sentenza n. 17989 del 13 settembre 2016 — Le obbligazioni pecuniarie che devono essere adempiute al domicilio del creditore ai sensi dell’art. 1182, comma 3, del codice civile sono soltanto quelle liquide, per tali intendendosi le obbligazioni delle quali il titolo determini l’ammontare o indichi criteri determinativi non discrezionali [Nota: il principio di diritto assume rilievo, quando il rapporto contrattuale controverso sia retto dal diritto italiano, anche agli effetti della determinazione del locus solutionis dell’obbligazione dedotta in giudizio ai sensi dell’art. 7 n. 1, lett. a), del Regolamento n. 1215/2012 sulla competenza giurisdizionale e il riconoscimento delle decisioni in materia civile e commerciale].  ♦  Italian Supreme Court (United chambers), judgment No 17989 of 13 September 2016 — Article 1182(3) of the Italian Civil Code provides that pecuniary obligations are to be performed at the domicile of the creditor. The provision only applies to ‘liquid’ obligations, ie, obligations of a fixed amount. For the latter requirement to be met, it must be established that either the amount was determined in the contract, or that the contract set forth non-discretionary rules for the determination of the amount due [Note: as regards obligations arising out of contracts governed by Italian law, the finding of the Court is relevant to the identification of the place of performance of the obligation in question pursuant to Article 7(1)(a) of Regulation n. 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters].

Gli Stati Uniti hanno ratificato la Convenzione dell’Aja del 2007 sull’esazione internazionale di prestazioni alimentari nei confronti di figli e altri membri della famiglia. La Convenzione, già in vigore per l’UE e alcuni Stati extraeuropei, entrerà in vigore per gli Stati Uniti il 1° gennaio 2017. ♦  The US has ratified the Hague Convention on the international recovery of child support and other forms of family maintenance. The Convention, which is already in force for the EU and some extra-European States, will enter into force for the US on 1 January 2017.

New Trends in EU Private International Law – Milano, 15 settembre / September 2016 [Tra i relatori / Speakers include: Fausto Pocar, Paul Lagarde, Jürgen Basedow, Christian Kohler, Francisco Garcimartín Alférez, Manlio Frigo, Stefania Bariatti]

Mariel Revillard, Stratégie de transmission d’un patrimoine international – Nouvelles perspectives (2 ed.), Defrénois, 2016, ISBN 9782856232897, Euro 62 — Les successions occupent une place prépondérante dans le droit international privé de la famille. Chaque année, un nombre considérable de successions internationales sont réglées en France. Des ressortissants de nationalité étrangère décèdent, soit en France, soit à l’étranger, laissant des biens non seulement en France mais dans d’autres pays. Des Français acquièrent des biens étrangers. L’introduction de ces éléments d’extranéité soulève des questions spécifiques au regard de la dévolution future de leur succession.  La répartition d’un patrimoine dans différents pays suscite des problèmes de droit international privé et le notaire intervient de plus en plus à titre préventif dans la préparation d’une succession internationale (estate planning). Ceci suppose une parfaite connaissance des règles de conflit de lois, du droit interne étranger et de la fiscalité internationale en matière de succession. À la suite de l’entrée en application du règlement successions du 4 juillet 2012 qui opère de profonds bouleversements dans le droit des successions internationales, l’étude des successions internationales s’établit en distinguant le régime de droit commun applicable aux successions ouvertes avant le 17 août 2015 et celles ouvertes à partir du 17 août 2015. Le nouveau droit européen des successions justifiait donc cette seconde édition et ouvre aux notaires de nouvelles perspectives de planification successorale.

James Fawcett, Maire Ni Shuilleabhain, Sangeeta Shah, Human Rights and Private International Law, Oxford University Press, 2016, ISBN 9780199666409, GBP 210 — Examining the impact, both actual and potential, of human rights concerns on private international law as well as the oft overlooked topic of the impact of private international law on human rights, this work represents an invaluable resource for all those working or conducting research in these areas. Human Rights and Private International Law is the first title to consider and analyse the numerous private international law cases discussing human rights concerns arising in the commercial law context, alongside high profile cases dealing with torture (Jones v. Kingdom of Saudi Arabia) and same sex marriage (Wilkinson v Kitzinger).The right to a fair trial is central to the intersection between human rights and private international law, and is considered in depth along with the right to freedom of expression; the right to respect for private and family life; the right to marry; the right to property; and the prohibition of discrimination on the ground of religion, sex, or nationality. Focussing on, though not confined to, the human rights set out in the ECHR, the work also examines the influence of human rights on private international law in countries which are not a party to the ECHR, such as Australia, Canada, New Zealand, and the United States.

Alberto De Franceschi (ed.), European Contract Law and the Digital Single Market, Intersentia, 2016, ISBN 9781780684222, Euro 69 — The EU is committed to making the Single Market fit for the digital age, by enhancing the protection of consumers and data subjects, while providing businesses with the legal certainty they need to invest in this field and support growth and innovation. In this context, European Contract Law and the Digital Single Market, an edited collection consisting of carefully selected contributions by leading scholars, addresses the impact of digital technology on European Private Law in light of the latest legislative developments including the EU Regulation of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on free movement of such data, as well as the European Commission’s proposals of 9 December 2015 for a Directive on the supply of digital content, for a Directive on online and other distance sale of goods and for a Regulation on the cross-border portability of online content services in the internal market. The book analyses new and urgent issues in the field of contract, data protection, copyright and private international law: namely the EU approach to personal information as a tradeable commodity and as the object of a fundamental right of the individuals concerned, the protection of consumers’ and users’ rights in contracts for the supply of digital content and on online and other distance sales of goods, the cross-border portability of online content services, the new features of standard contracts in the digital market and the issues surrounding the emergence of the so called platform economy.

Da oggi post meno frequenti, tutti bilingui, contenenti ciascuno segnalazioni di natura diversa: pronunce giurisprudenziali, sviluppi normativi, eventi scientifici etc.

Beginning from today, posts will appear less frequently, they will all be written both in Italian and in English, and each will cover case law, normative developments, academic events etc.

The Center for the Study of Dispute Resolution at the University of Missouri School of Law and the American Society of International Law (ASIL) Dispute Resolution and Midwest Interest Groups, in association with Young ICSID, are pleased to announce two upcoming events: (1) a works-in-progress conference and (2) student writing competition. Both events focus on international dispute resolution, broadly defined.

More information on both events shows below and on the event website. Please feel free to forward this email to those who might be interested in either event.

Works in Progress Conference

The works-in-progress conference will take place on February 2 and 3, 2017, at the University of Missouri School of Law. The purpose of the conference is to help authors develop draft articles for publication, so authors will be required to submit a working draft before the conference takes place. Papers will be circulated in advance of the session, and all participants will be expected to provide detailed feedback on a limited number of other papers.

The works-in-progress conference will also feature various networking opportunities as well as several substantive presentations on issues relating to international dispute resolution. Presentations will be live or by video and include: Lady Justice Joyce Aluoch, Judge and First Vice-President of the International Criminal Court in the Hague, who will be speaking on matters of public international law; Ryan Reetz and Pedro Martinez-Fraga of Bryan Cave, who will be speaking on their recent book, Public Purpose in International Law: Rethinking Regulatory Sovereignty in the Global Era (Cambridge University Press 2015); and Paul-Jean Le Cannu, Legal Counsel at ICSID, who will speak on the future of investor-state dispute settlement systems.

Papers presented at the works-in-progress conference will be eligible for expedited review by the University of Missouri’s highly regarded Journal of Dispute Resolution as well as for consideration by the ICSID Review-Foreign Investment Law Journal. While submissions will have to go through the normal publication process and an offer of publication is not guaranteed, the editors of both journals are very interested in reviewing submissions from works-in-progress participants.

This is expected to be a very international event, and submissions are sought from academics and practitioners around the world. Junior professionals, including aspiring and untenured academics, are encouraged to submit proposals. To be considered, potential participants must submit a one-page abstract of their work on or before October 15, 2016. Details on how to submit a proposal for the works-in-progress conference can be found here.

Student Writing Competition

The University of Missouri is also sponsoring a student writing competition in conjunction with this event. The competition is open to current students at any institution in the world granting a degree in law. The competition carries a prize of $450 for first place and $125 for second place, and the winning paper is eligible to be considered for publication in the University of Missouri’s Journal of Dispute Resolution. The prize amounts may increase (funding is still being finalized), so be sure to check back for additional details. Students of all levels (J.D., LL.B., LL.M., S.J.D., and Ph.D.) are eligible to submit papers. Advanced degree students (LL.M., S.J.D. or Ph.D.) may submit the same paper for both the works-in-progress conference and the student writing competition. The deadline for the student writing competition is January 15, 2017. More details on the student writing competition are available here.

written by Veerle Van Den Eeckhout

On the blog section of the Dutch journal Nederlands Juristenblad, a new blog of Veerle Van Den Eeckhout on the Proposal for a revision of the Posting Directive has been published, see here.

Previous blogs on this theme can be found here and here.

This blog is entitled “Ipr en het verdergaande proces tot wijziging van de Detacheringsrichtlijn. Ipr in een politiek-juridisch krachtenveld (in English: “Private International Law and the ongoing process of revising the Posting Directive. PIL in a legal-political force field”). It is written in Dutch. An English version can be found here.

Wilmer Cutler Pickering Hale and Dorr LLP are delighted to invite you to the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration.
Professor Dr. Maxi Scherer, General Editor of the Journal of International Arbitration and Dr. Johannes Koepp, Special Issue Editor, will host a discussion with the authors on the content of the Special Issue.

Topics and speakers will include:
How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit – Dr. Holger P. Hestermeyer
What Does Brexit Mean for the Brussels Regime? – Sara Masters QC & Belinda McRae
Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe – Michael McIlwrath
Impact of Brexit on UK Competition Litigation and Arbitration –Gilbert Paul
Brexit and the Future of Intellectual Property Litigation and Arbitration – Annet van Hooft
Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs – Markus Burgstaller

The Special Issue journal launch will be followed by a champagne reception.

C-191/15 Verein für Konsumenteninformation v Amazon SarL is one of those spaghetti bowl cases, with plenty of secondary law having a say on the outcome. In the EU purchasing from Amazon (on whichever of its extensions) generally implies contracting with the Luxembourg company (Amazon EU) and agreeing to Luxembourg law as applicable law. Amazon has no registered office or establishment in Austria. VKI is a consumer organisation which acted on behalf of Austrian consumers, seeking an injunction prohibiting terms in Amazon’s GTCs (general terms and conditions), specifically those which did not comply with Austrian data protection law and which identified Luxembourg law as applicable law.

Rather than untangle the bowl for you here myself, I am happy to refer to masterchef Lorna Woods who can take you through the Court’s decision (with plenty of reference to Saugmandsgaard Øe’s Opinion of early June). After readers have consulted Lorna’s piece, let me point out that digital economy and applicable EU law is fast becoming a quagmire. Those among you who read Dutch can read a piece of mine on it here. Depending on whether one deals with customs legislation, data protection, or intellectual property, different triggers apply. And even in a pure data protection context, as prof Woods points out, there now seems to be a different trigger depending on whether one looks intra-EU (Weltimmo; Amazon) or extra-EU (Google Spain).

The divide between the many issues addressed by the Advocate General and the more narrow analysis by the CJEU, undoubtedly indeed announces further referral.

Geert.

(Handbook of) European Private International Law, 2016, Chapter 2, Heading 2.2.8.2.5.

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.