Droit international général

An inevitable consequence of the rulings in Google Spain, Weltimmo and Schrems /Facebook /Safe harbour, is whether courts in the EU can or perhaps even must insist on extending EU data protection rules to websites outside of EU domain. The case has led to suggestions of ‘exterritorial reach’ of Google Spain or the ‘global reach’ of the RTBF, coupled with accusations that the EU oversteps its ‘jurisdictional boundaries’. This follows especially the order or at least intention, by the French and other data protection agencies, that Google extend its compliance policy to the .com webdomain.

The Landgericht Köln mid September (the case has only now reached the relevant databases) in my view justifiably withheld enforcement jurisdiction in a libel case only against Google.de for that is the website aimed at the German market. It rejected extension of the removal order vis-à-vis Google.com, in spite of a possibility for German residents to reach Google.com, because that service is not intended for the German speaking area and anyone wanting to reach it, has to do so intentionally.

I have further context to this issue in a paper which is on SSRN and which is being peer reviewed as we speak (I count readers of this blog as peers hence do please forward any comments).

Geert.

Con la sentenza 26 ottobre 2015, n. 21712, la Corte di cassazione ha avuto modo di pronunciarsi sull’obbligo di applicazione della legge straniera «secondo i propri criteri di interpretazione e di applicazione nel tempo» posto dall’art. 15 della legge 31 maggio 1995 n. 218, di riforma del sistema italiano di diritto internazionale privato.

La vertenza che ha dato origine alla decisione prende le mosse dal decreto ingiuntivo con cui nel 2003 il Tribunale di Milano ordinava a B.A. il pagamento di una certa somma di denaro a favore di una società che gestiva un casinò con sede in Francia, avendo il primo ottenuto il corrispettivo di tale somma in fiches sulla base di assegni rimasti insoluti. L’ingiunto si opponeva affermando che, ai sensi dell’art. 1933 del codice civile, la società non poteva esercitare alcuna azione per ottenere il credito derivante dal gioco. L’opposizione veniva accolta.

La società opposta proponeva appello e, in tal sede, il giudice di secondo grado riteneva applicabile non già alla legge italiana ma la legge francese, in base all’art. 4, par. 2, della Convenzione di Roma del 1980 sulla legge applicabile alle obbligazioni contrattuali (applicabile ratione temporis in luogo del sopravvenuto regolamento n. 593/2008).

La Corte d’Appello dava così applicazione all’art. 1965 del codice civile francese, così come interpretato dalla giurisprudenza francese. In particolare, il dato letterale della norma citata prevede, similmente all’art. 1933 del codice civile italiano, che non è concessa azione al creditore per i debiti di gioco. Senonché, sul punto, la Cour de cassation, con sentenza 4 marzo 1980, ha precisato che tale norma non trova applicazione se la tenuta del casinò è autorizzata dalla legge e regolamentata da pubblici poteri. Da tale orientamento derivava il potere del casinò di agire per ottenere il soddisfacimento del proprio credito. Conseguentemente il giudice d’appello riformava la sentenza a favore della società amministratrice del casinò.

Il B.A. ricorreva quindi per cassazione lamentando la violazione dell’art. 15 della legge n. 218/1995, in quanto la Corte d’Appello avrebbe applicato l’art. 1965 del code civil in base ad un orientamento che, ancorché effettivamente affermatosi, non trova applicazione qualora il credito vantato non derivi direttamente dall’attività di gioco bensì, come nel caso di specie, da un mutuo erogato al fine di consentire il gioco.

Nella sentenza la Suprema Corte prende inizialmente posizione sulla corretta applicazione dell’art. 4, par. 2 della Convenzione di Roma. Precisa la Corte che, non sussistendo tra le parti un accordo sulla legge applicabile, questa deve essere individuata nella legge del Paese di residenza dell’obbligato alla prestazione caratteristica del contratto, in questo caso consistente nella “dazione delle fiches“.

Continua il Giudice di legittimità argomentando l’ammissibilità del motivo di impugnazione esperito, poiché la violazione di legge può riguardare tanto la legge italiana quanto la legge straniera regolatrice del rapporto, come in passato affermato (cfr. Cass. n. 8630/2005). Prosegue la motivazione ribadendo che “il dovere del giudice di ricercare le fonti del diritto deve intendersi posto anche con riferimento alle norme giuridiche dell’ordinamento straniero, ma non implica l’obbligo di acquisire fonti giurisprudenziali”.

Rilevata l’effettiva presenza dell’orientamento giurisprudenziale richiamato dal giudice dell’appello, la Suprema Corte considera un successivo orientamento giurisprudenziale consolidatosi in Francia per il quale, pur essendo il credito del casinò azionabile se questo esercita la propria attività autorizzato dalla legge, il principio richiamato non si «attagli al caso in cui il debito in questione “se rapporte à des prêts consentis par le casino por alimenter le jeu” (si riferisca a prestiti concessi dal casinò per alimentare il gioco)“. La Corte corrobora le proprie osservazioni citando numerose sentenze della stessa Suprema Corte francese.

La Corte di cassazione conclude quindi con l’accoglimento del ricorso per violazione dell’art. 15 della legge n. 218/1995, non avendo la Corte d’Appello individuato i corretti criteri ermeneutici da impiegare nell’applicazione della legge francese.

It has not yet been noted on this blog that the European Parliament, on 7 October 2015, adopted at first reading a legislative resolution on the proposal for a regulation amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure. The resolution as well as the position of the European Parliament can be downloaded here.

Further information is available here.

Thanks to Edina Márton for the tip-off.

Il 9 e 10 novembre 2015 l’Università di Milano Bicocca ospita un convegno dal titolo 1975-2015 – La famiglia e il diritto: 40 anni di trasformazioni.

L’evento si articola in quattro sessioni, dedicate rispettivamente a L’idea di famiglia nel tempo, Centralità e unitarietà dello status di figlio, Il matrimonio e le unioni civili e La famiglia e lo Stato.

La seconda sessione, in particolare, presieduta da Costanza Honorati, propone alcune relazioni di sicuro interesse per i cultori del diritto internazionale privato, affidate a Cristina Campiglio (Univ. Pavia), che parlerà de La filiazione alla luce della CEDU, e a Maria Caterina Baruffi (Univ. Verona), che interverrà su Legislazioni straniere e riconoscimento dello status di figlio nato all’estero.

Ulteriori informazioni a questo indirizzo.

Cinzia Peraro, Il riconoscimento degli effetti della kafalah: una questione non ancora risolta, in Rivista di diritto internazionale privato e processuale, 2015, pp. 541-566.

[Abstract] – The issue of recognition in the Italian legal system of kafalah, the instrument used in Islamic countries to take care of abandoned children or children living in poverty, has been addressed by the Italian courts in relation to the right of family reunification and adoption. The aim of this paper is to analyse judgment No 226 of the Juvenile Court of Brescia, which in 2013 rejected a request to adopt a Moroccan child, made by Italian spouses, on the grounds that the Islamic means of protection of children is incompatible with the Italian rules. The judges followed judgment No 21108 of the Italian Supreme Court, issued that same year. However, the ratification of the 1996 Hague Convention on parental responsibility and measures to protect minors, which specifically mentions kafalah as one of the instruments for the protection of minors, may involve an adjustment of our legislation. A bill submitted to the Italian Parliament in June 2014 was going in this direction, defining kafalah as «custody or legal assistance of a child». However, in light of the delicate question of compatibility between the Italian legal system and kafalah, the Senate decided to meditate further on how to implement kafalah in Italian law. Therefore, all rules on the implementation of kafalah have been separated from ratification of the Hague Convention and have been included in a new bill.

The European Commission and the Council of the Notariats of the European Union will host a joint conference on the Succession Regulation. The event will take place in Brussels (Belgium) on 19 November 2015 and aims to provide an opportunity for legal professionals to exchange their views and share their experiences regarding the application of the Regulation.

For further information please visit the conference website.

Thanks to Edina Márton for the tip-off.

Volume XIV-XV of the Spanish journal Anuario Español de Derecho Internacional Privado, AEDIPr, devoted to international civil procedural law and private international law, is about to be released. It contains the following sections:

Estudios, in Spanish with a summary in English. This volume includes studies authored by B. Hess, M. Requejo Isidro, L. D’Avout, M. Pertegás Sender, F. Ferrari, J. Álvarez Rubio, A. Dutta, R. Arenas Garcia, P. Jiménez Blanco, A. Espiniella Menéndez, R. Miquel Sala, and D.B. Furnish.

Varia:  short papers by young researchers.

Foros Internacionales, informing and commenting on the latest developments at international fora such as the UE or The Hague Conference, as well as regionally with a particular regard to Latin America.

Textos Legales, both international and Spanish: a very welcome section in light of the seemingly endless activity of the Spanish lawmaker in 2014 and 2015.

Jurisprudencia: the Anuario must be described as the best recueil of PIL Spanish case law; decisions on inter-regional conflict of laws are included, as well as the administrative decisions from the Dirección General de los Registros y el Notario relating to cross-border cases.

Materiales de la Práctica: reports related to PIL from several institutions like the Consejo General del Poder Judicial.

Bibliografía: a thorough review of Spanish books and papers on PIL published in the last two years, as well as a selection of foreign literature.

You can access the whole ToC here: AEDIPr 2014-2015.

The journal is edited by Iprolex and distributed by Marcial Pons.

Si terrà il 27 novembre 2015, presso il Dipartimento di Giurisprudenza dell’Università di Ferrara, una tavola rotonda dal titolo La codificazione del diritto internazionale privato e processuale – Sviluppo storico e declinazioni attuali di un’idea.

Moderati da Andrea Giardina (Univ. Roma La Sapienza), prenderanno la parola, fra gli altri, Didier Boden (Univ. Paris 1 – Panthéon-Sorbonne), Sergio M. Carbone (Univ. Genova), Francesco Salerno (Univ. Ferrara) e Sara Tonolo (Univ. Trieste).

Interverranno altresì Antonio Leandro (Univ. Bari), Fabrizio Marongiu Buonaiuti (Univ. Macerata), Lidia Sandrini (Univ. Milano) e Chiara Tuo (Univ. Genova).

Maggiori informazioni, oltre a una selezione di materiali, sono disponibili a questo indirizzo

On 12 October 2015, the Committee on Legal Affairs of the European Parliament held a public hearing on the reform of the Brussels IIa Regulation. A video of the hearing is available here.

Further information on the public hearing, including the programme and the written contributions can be downloaded here.

Thanks to Edina Márton for the tip-off.

Research Handbook on Transnational Labour Law, a cura di Adelle Blackett, Anne Trebilcock, 2015, Edward Elgar Publishing, ISBN 9781782549789, pp. 608, GBP 297.

[Dal sito dell’editore] – The editors’ substantive introduction and the specially commissioned chapters in the Handbook explore the emergence of transnational labour law as a field, along with its contested contours. The expansion of traditional legal methods, such as treaties, is juxtaposed with the proliferation of contemporary alternatives such as indicators, framework agreements and consumer-led initiatives. Key international and regional institutions are studied for their coverage of such classic topics as freedom of association, equality, and sectoral labour standard-setting, as well as for the space they provide for dialogue. The volume underscores transnational labour law’s capacity to build bridges, including on migration, climate change and development.

Maggiori informazioni sono reperibili qui.

C-523/14 Aertssen is not a corner piece of the Brussels I jigsaw. Rather, a necessary if unexciting piece of the puzzle’s main body. Aertssen NV, of Belgium, had a gripe with VSB Machineverhuur BV and others, of the Netherlands. Aertssen alleged fraud in VSB’s dealings with the company. It employed a well-known feature of Belgian (and French, among others) civil procedure, which is to file complaint with the investigating magistrate. This launches a criminal investigation, to which civil proceedings are attached.

Aertssen’s subsequent action of attachment of VSB’s accounts in The Netherlands, risked being stalled by the Dutch courts’ insistence that the group launch new legal action in The Netherlands. Aertssen obliged pro forma with this initiation of new proceedings, subsequently to aim to torpedo them. Aertssen would rather the Belgian courts continue with their own, criminal investigation and that action in The Netherlands, other than action in attachment, be put on hold, at least until the Belgian proceedings be finalised.

In essence therefore, the case before the CJEU need to determine whether the Aertssen action ib Belgium is of a ‘civil and commercial’ nature, and if it is, whether the action in Belgium and The Netherlands meet the requirements of the lis alibi pendens rule of Article 27 (old) of the Brussels I-Regulation. the CJEU replied in the affirmative to both.

Precedent for the ‘civil and commercial’ issue, other than the usual suspects, was available per Sonntag, Case C-172/91, where the Court held that civil matters within the meaning of the first sentence of the first paragraph of Article 1 of the Brussels Convention cover an action for compensation for damage brought before a criminal court. In Aertssen, The CJEU used the term ‘private law relationship’ to describe the legal relationship between the parties concerned. Even though, other than in Sonntag where the criminal proceedings were launched by the State prosecutor, Aertssen itself had triggered the criminal investigation, its ultimate aim is to obtain monetary compensation.

The subsequent question was whether per Article 27, lis pendens exists. Reference is best made to the judgment itself for the application of the The Tatry criteria (Case C-406/92): the two cases pending need to involve the same parties, pursuing the same cause of action (the facts and the rule of law relied on) and with the same object (meaning the end the action has in view). The CJEU held among others that the question whether the parties are the same cannot depend on the position of one or other of the parties in the two proceedings.

The remainder of the judgment deals with the meaning of the term ‘court first seized’ in Article 30 of the Regulation, and the relevance of national rules of civil procedure in same.

It is not often that a party aims to torpedo its own proceedings and the procedural intricacies of the case are rather complex. However the CJEU keeps a level head, with in the end transparent results.

Geert.

È da poco uscito il fascicolo estivo dell’annata 2015 di Int’l Lis – Corriere trimestrale della litigation internazionale, diretto da Claudio Consolo.

Nella sezione Cronache, il fascicolo ospita, fra le altre, uno scritto di Albert Henke sulle nuove leggi arbitrali olandese e belga, seguito dalla segnalazione (sotto forma di agili note di commento) di alcune recenti pronunce della Corte di cassazione su temi di diritto processuale civile internazionale, a cura di Elena D’Alessandro, Gina Gioia, Luca Penasa, Monica Pilloni, Marcello Stella, Silvia Turatto e Beatrice Zuffi.

Il fascicolo propone inoltre una nota di Marcella Negri alla sentenza Cartel Damage Claims della Corte di giustizia (21 maggio 2015, causa C-352/13), dal titolo Una pronuncia a tutto campo sui criteri di allocazione della competenza giurisdizionale nel private enforcement transfrontaliero: il caso esemplare delle azioni risarcitorie c.d. follow-on rispetto a decisioni sanzionatorie di cartelli pan-europei.

Si devono invece rispettivamente a Valentina Morgante e a Olga Desiato i commenti a Court of Appeal of England and Wales, 5 febbraio 2015, in tema di immunità giurisdizionale degli Stati stranieri nelle controversie di lavoro, e a Corte d’Appello di Bari, ord. 6 ottobre 2014, sulla incompatibilità con l’ordine pubblico dello Stato richiesto quale causa ostativa del riconoscimento di un provvedimento straniero.

Chiudono il fascicolo la prima parte di uno scritto di Neil Andrews sulle recenti innovazioni conosciute dal diritto inglese dei contratti e della procedura civile e uno scritto di Claudio Consolo intitolato Adesione del convenuto straniero al tentativo di mediazione obbligatoria ex art. 5, co. 1-bis, d. lgs. 28/2010 promosso in Italia e (salvezza dell’eccezione di difetto della) giurisdizione italiana.

Maggiori informazioni a questo indirizzo.

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

Giesela Rühl and Jan von Hein, Towards a European Code on Private International Law?

One of the most important dates in the history of European Private International Law is 2 October 1997. On that day the Member States of the European Union signed the Treaty of Amsterdam – and endowed the European legislature with near to full competences in the field of Private International Law. What followed was a firework of legislative actions leading to the adoption of no less than 15 Regulations on various aspects of choice of law and international civil procedure. The fact that the pertinent legal rules are scattered across various legal instruments that do not add up to a comprehensive, concise and coherent body of rules, however, gives rise to a number of concerns. Therefore, the European Commission as well as the European Parliament have called for a discussion on the future of European Private International Law in general and the merits and demerits of a European Code on Private International Law in particular.

Based on a study commissioned by the Committee on Legal Affairs of the European Parliament, the following article seeks to contribute to this debate. It is organized in four parts: The first part analyses the current state of European Private International Law (PIL), in particular its perceived deficiencies. The second part describes possible courses of action to overcome these deficiencies, including a European Code on PIL. The third analyses the merits and demerits of possible courses of action, including the adoption of a European Code on PIL. The fourth part suggests a course of action that will gradually lead to a more coherent legislative framework for European PIL.

Dieter Henrich, Privatautonomie, Parteiautonomie: (Familienrechtliche) Zukunftsperspektiven (Private Autonomy, Party Autonomy: (Family Law) Future Perspectives)

Much as it previously dominated the law of contracts, private autonomy increasingly dominates the area of family law. Party autonomy, the right of the parties to select the applicable law, has found acceptance in international family law. The consequences in many areas are nothing less than revolutionary, including divorce by mutual consent, cohabitation instead of marriage, children having two legal fathers or two legal mothers or even three parents (sperm donor and a lesbian couple), surrogate motherhood, and impacts on divorce and maintenance in choice-of-law cases. Not all of these developments may be welcomed by all individuals. But in better serving self-determination, they are attractive to others and represent future perspectives.

Reinhard Zimmermann, Das Verwandtenerbrecht in historisch-vergleichender Perspektive (The Intestate Succession Rights of the Deceased’s Relatives in  Historical and Comparative Perspective)

The intestate succession systems are based, everywhere, on the idea of family succession. The deceased’s family consists of his (blood-)relatives as well as, possibly, his or her surviving spouse. The law, therefore, is faced with two central tasks: (i) to determine in which sequence the deceased’s relatives are called to inherit and (ii) to coordinate the position of the survivingspouse with that of the relatives. The present paper analyses how the intestate systems of the Western world deal with the first of these tasks. In spite of differences in detail, they can be subdivided into three types: the “French system”, the three-line system, and the parentelic system. Analyzing them in historical and comparative perspective reveals basic commonalities (e.g. the preference given to descendants, and succession per stirpes), but also curious relics of past ages (e.g. the concept of “representation”, paterna paternis materna maternis, and la fente successorale). Other criteria relevant for a comparative assessment of the different solutions advocated by the three systems are consistency in the implementation of fundamental structural ideas, the avoidance of inconsistencies in evaluation, of arbitrariness, and of discrimination, the ability to forestall manipulations, and the preference for simplicity over complexity. The presumed intention of a typical deceased can be an important argument for deciding what might be the most appropriate solution, for the rules on intestate succession should, in case of doubt, reflect what those subject to these rules would typically regard as appropriate, as far as the distribution of their estate is concerned. But there are also issues where reliance on the presumed intention is misplaced. All in all, a reasonably limited parentelic system appears to be the superior intestate succession system. A strongly cultural impregnation of the rules on intestate succession is apparent only if Western and non-Western systems are compared. Within the Western legal world, the differences existing between the legal systems cannot be traced to differences in legal culture. All modern legal systems of the Western world attempt to take account of the deceased’s relatives in a rational fashion. In that respect they build on the scheme established in Justinian’s novels, the earliest one that can be labelled modern. The “French” system and the three-line system represent different manifestationsof the Justinianic scheme, while the parentelic system implements its underlying ideas in an even more consistent manner, and inspired by Natural law ideas. Why the one system has taken root in one country, and the other in another, is a matter of historical contingency.

Alistair Price and Andrew Hutchison, Judicial Review of Exercises of Contractual Power: South Africa’s Divergence from the Common Law Tradition

No English abstract available

François Du Toit, The South African Trust in the Begriffshimmel? – Language, Translation and Taxonomy

No English abstract available

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

F. Garcimartin, The situs of shares, financial instruments and claims in the Insolvency Regulation Recast: seeds of a future EU instrument on rights in rem?
The location of intangible assets is a key issue for the application of certain Private International Law rules. At the EU level, Regulation 1346/2000 on Insolvency proceedings contains three uniform rules on location of assets, one of which deals with claims (Art. 2 (g) III 2000 EIR). The recast of this instrument (Regulation 2015/84) has extended this provision, which now includes eight different rules (Art. 2 (9) EIR Recast). The purpose of this paper is to analyze one set of these rules, specifically those laid down for intangible assets: shares and other financial instruments, claims and cash accounts. The relevance of this analysis is twofold. From a positive-law perspective, it may be useful to resolve some of the problems that the interpretation and application of Article 2 (9) EIR Recast may give rise to in practice. From a normative perspective, Article 2 (9) EIR Recast may be the seed of a future EU instrument on the law applicable to rights in rem. This provision establishes a detailed list of common rules on location of assets. Should the future instrument take as a starting point the traditional conflict of laws rule in this area, i.e. the lex rei sitae, this list would be the primary reference to determine the situs of most assets.

M. Lehmann, A Gap in EU Private International Law? OGH and BGH on the Law Applicable to Liability for Asset Acquisition and Takeover of a Commercial Enterprise
The contribution discusses a recent tendency in some Member States to avoid applying European conflict laws to certain aspects of the law of obligations. In question are national rules under which persons who take over the entire property or the commercial business of another are liable for the latter’s debt. The highest courts in civil matters in Germany and Austria have decided that these issues are not covered by the Rome Convention of 1980, and have instead submitted them to autonomous national conflict rules. An important strand of the literature wants to transfer this solution to the Rome I and II Regulations. It must be borne in mind, however, that both regulations establish a comprehensive regime for the law of obligations. They do not leave any room for national conflict rules, save for those areas that are expressly exempt from their scope of application. A solution must therefore be found within the regulations themselves. It is suggested here that the type of liability in question could be characterized as an overriding mandatory rule. Looking to the future, it would be preferable if the EU legislator introduced specific conflict rules to address this problem.

C. Kohler, Special Rules for State-owned Companies in European Civil Procedure? (ECJ, 23.10.2014 – Case C-302/13 – flyLAL-Lithuanian Airlines AS, in liquidation, v Starptautiska lidosta Riga VAS, Air Baltic Corporation AS)
In Case C-302/13, flyLAL-Lithuanian Airlines, the ECJ held that an action for damages resulting from the alleged infringement of EU competition rules by two Latvian companies, Starptautiska Lidosta Ri-ga and Air Baltic, was civil and commercial in nature. It was irrelevant in that respect that the in fringement was said to result from the determination by the defendant Starptautiska Lidosta Ri-ga of airport charges pursuant to statutory provisions of the Republic of Latvia. Equally irrelevant was the fact that the defendant companies were wholly or partly owned by that Member State. Furthermore, the ECJ specified the grounds which would bar the recognition and enforcement of a judgment ordering protective measures as being contrary to the public policy of the Member State addressed. The Court ruled that the mere invocation of serious economic consequences for state-owned companies do not constitute such grounds. The author welcomes the judgment as it clarifies that there is no special regime for state-owned companies in European civil procedure. He adds that the ECJ’s opinion 2/13 on the accession of the EU to the European Convention of Human Rights, given shortly after the judgment in Case C-302/13, does, in principle, not affect the relevance of the public policy exception in Regulation Brussels I.

F. Wedemann, The Applicability of the Brussels Ia Regulation or the European Regulation on Insolvency Proceedings in Company Law Liability Cases
The ECJ’s G.T. GmbH decision is important for European civil procedure law as it has significant implications for the demarcation between the scopes of the Brussels Ia-Regulation and the European Regulation on Insolvency Proceedings in company law liability cases. The author analyses these implications. First of all, she identifies and critically discusses the general guidelines established or confirmed by the decision: (1) The fact that a liability provision allows an action to be brought even where no insolvency proceedings have been opened, does not per se preclude such an action from being characterized as falling within the scope of Art. 3 (1) European Regulation on Insolvency Proceedings. Rather, it is necessary to determine whether the provision finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings. (2) In cases where no insolvency proceedings have been opened, actions fall within the scope of the Brussels Ia Regulation. (3) Cases where insolvency proceedings have been opened, but the action in question is brought by someone other than the liquidator, require a differentiating treatment. (4) The defendant’s domicile is irrelevant for the applicability of Art. 3 (1) European Regulation on Insolvency Proceedings. (5) The jurisdiction based on Art. 3 (1) European Regulation on Insolvency Proceedings is exclusive. Subsequently, the author focusses on German company law and its broad range of liability provisions and examines the consequences of G.T. GmbH for jurisdiction in proceedings based on these provisions.

F. Temming, International jurisdiction over individual contracts of employment – How wide is the personal scope of Art. 18 et sqq. of the Brussels I Regulation?
This case note is about the question whether or not independent sales representatives can be considered as employees for the purposes of Art. 18 et sqq. of the Brussels I Regulation (44/2001/EC). This could be the case if an individual sales representative renders his services only to one principal and does not employ personnel on his own account. The resulting economic dependence vis-à-vis his principal could call for the jurisdictional protection that is granted by Art. 18 et sqq. of the Brussels I Regulation (44/2001/EC) to individual employees. Whereas the Regional Higher Labour Court of Düsseldorf (LAG Düsseldorf) denied the analogous application of Art. 18 et sqq. of the Brussels I Regulation (44/2001/EC) in favour of the claimant, there is a good case that – in light of recent judgements – the Court of the European Union could consider individuals, who are economically dependant on their partner of a service contract, to fall under its flexible autonomous concept of “employee”, if the degree of subordination due to a right of direction was comparable to the one of an employee. If this case is referred to the Court of the European Union, it will have the potential of becoming a landmark case.

M. Fornasier, The law applicable to employment contracts and the country of closest connection under Art. 8(4) Rome I
In its Schlecker judgment (Case C-64/12), the European Court of Justice shed some light on the escape clause in the choice-of-law rule regarding employment contracts (Art. 8 (4) Rome I Regulation). The Court held that the employment relationship may be more closely connected with a country other than that in which the habitual workplace is located even where the employee carries out the work habitually, for a lengthy period and without interruption in the same country and where, thus, the territorial connection of the employment contract with the habitual workplace is particularly strong. The following case note analyses to what extent the ruling is reconcilable with the principle of favor laboratories and whether it is consistent with the case law of the ECJ relating to the posting of workers. Moreover, the paper examines the impact of the judgment on mechanisms of collective labor law such as collective bargaining and employee participation.

J. Schilling, The International Private Law of Freight Forwarding Contracts
After having taken position to charter parties in its ICF-decision already, the ECJ now comments the international private law of freight forwarding contracts. In its Haeger & Schmidt ruling the court clarifies that those contracts, which exclusively state an obligation to arrange for transport cannot be considered contracts of carriage in the meaning of Art. 4 para. 4 Rome Convention or Art. 5 para. 1 Rome I Regulation. However a freight forwarding contract falls within the material scope of the special rule for transport contracts, if its principal purpose is the transport as such of the goods. This can be considered, if the forwarding agent is performing the transport partially or entirely by himself, or in case of freight forwarding at a fixed price. The question of qualification will particularly be relevant in cases to which the Rome I Regulation applies, because the differences between the conflict of laws regime for general contracts and that for contracts of carriage have increased. As the uniform transport law does generally not apply to freight forwarding contracts, the recent ECJ decision on the international private law of those contracts appears even more important.

J. Hoffmann, Duties of disclosure towards contracting parties without knowledge of the contract language
The judgement of the German Federal Labour Court discussed in this article had to determine the legal consequences of the conclusion of a standard contract with an employee who had no knowledge of the language of the contract. Although neither the validity of the contract nor the inclusion and validity of the standard terms are in question, the information imbalance should be addressed by accepting a precontractual duty to explain the contract contents in appropriate cases. Such a duty should specifically be acknowledged if the precontractual negotiations were conducted in a different language. It can also be endorsed as a contractual obligation based on the fiduciary duty of the employer towards his employee as long as the language deficit remains.

M. Zwickel, Prima facie evidence between lex causae and lex fori in the area of the French Road Traffic Liability Act (Loi Badinter)
The decision of the Regional Court Saarbrücken, which had already given rise to a preliminary ruling by the ECJ regarding the “effective service of notice of proceedings on the claims representative of a foreign insurer”, relates to the problem of the usability of German prima facie evidence in a case to be decided in accordance with French law. The jurisprudence of the French Cour de cassation does not permit any reduction in the standard of proof within the framework of road traffic liability. Adducing the prima facie evidence – contrary to French civil law – therefore potentially leads to a divergence of procedural and substantive law. The decision makes it especially clear that prima facie evidence within and outside of the scope of Art. 22 (1) Rome II-Regulation can sensibly only be treated in accordance with the lex causae.

M. Stürner, Enforceability of English third party costs order
The German Bundesgerichtshof (BGH) had to deal with an application to declare enforceable a third party costs order issued by the English High Court in the context of an insolvency proceeding. The BGH left open the question whether that decision falls within the scope of the Brussels I Regulation or the Insolvency Regulation as both regimes should not leave any gap between them and also provide identical grounds for refusing recognition. On that basis, the BGH held that the third party costs order did not violate German public policy. The author generally agrees with the decision.

H. Roth, Actions to oppose enforcement and set-off
Due to the close connection with the enforcement procedure, the exclusive jurisdiction of Article 22 (5) Lugano Convention of 2007 includes actions to oppose enforcement pursuant to § 767 of the German Code of Civil Procedure (ZPO).
Contrary to the view of the Federal High Court of Justice (BGH), § 767 ZPO can be applied even if the court seized would not be internationally competent in case of an independent legal assertion of the counterclaim.
The court is able to assess preliminary questions, which were submitted in defense, regardless of the restrictions by the law relating to jurisdiction. This principle also applies to the set-off.

H. Odendahl, The 1961 Hague Protection of Minors Convention – How vital is the fossil?
The Austrian Supreme Court of Justice had to decide upon the recognition of a Turkish court decision on the custody of a child of Turkish nationality living in a foster family in Austria, which was based on Art. 4 of the 1961 Hague Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants. Recognition was rejected for reasons of public policy (Art. 16). The following article discusses the remaining scope of this outdated convention and the impact of its application in relation to its successor, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, as well as the 1980 Luxembourg European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children.

An extensive article-by-article commentary, in German, of Regulation (EU) No 1215/2012 (Brussels Ia) has recently been published by Verlag Dr. Otto Schmidt.

This is actually the fourth edition of the volume dealing with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of the 4-volume commentary of EU law on international litigation and conflicts of laws drawn up under the direction of Thomas Rauscher.

The authors of the volume are Prof. Dr. Stefan Leible (Univ. Bayreuth), Prof. Dr. Peter Mankowski (Univ. Hamburg), Dr. Steffen Pabst (LVV Leipziger Versorgungs- und Verkehrsgesellschaft mbH) and Prof. Dr. Ansgar Staudinger (Univ. Bielefeld).

For more information, see here.

Europäisches Zivilprozess- und Kollisionsrecht EuZPR/EuIPR, Band I (Brüssel Ia-VO), 4th edition, Verlag Dr. Otto Schmidt, 2015, 1456 pages, ISBN 978-3-504-47202-3, 249 Euros.

Europäisches Zivilprozess- und Kollisionsrecht EuZPR/EuIPR, vol. I, Brüssel Ia-VO, 4a ed., Verlag Dr. Otto Schmidt, 2015, pp. 1456, ISBN 9783504472023, Euro 249.

[Dal sito dell’editore] Rechtzeitig zum Inkrafttreten 2015 wird in Band I der 4. Auflage des Großkommentars EuZPR/EuIPR die reformierte Fassung der Brüssel I-Verordnung, die Brüssel Ia-Verordnung, mit den wichtigen Neuerungen kommentiert. So finden Sie z.B. alles zu den erheblichen Änderungen im Verfahren der Vollstreckung von ausländischen Zivilurteilen, zu dem Recht der parallelen Rechtshängigkeit sowie zu den Möglichkeiten der signifikant gestärkten Gerichtsstandsvereinbarungen. Das Lugano-Übereinkommmen 2007, das erst die Anpassung an die bisherige Verordnung vollzieht, weicht damit bereits wieder deutlich vom EU-Instrument ab und wird in diesen wesentlichen Abweichungen behandelt.

Maggiori informazioni sul volume, che ha per autori Stefan Leible, Peter Mankowski, Ansgar Staudinger e Steffen Pabst, sono reperibili a questo indirizzo.

At the Institute for Foreign and Private International Law of the Albert-Ludwigs-University Freiburg im Breisgau (Germany), a vacancy has to be filled at the chair for private law, private international law and comparative law (chairholder: Prof. Dr. Jan von Hein), from 1 January, 2016 with

a legal research assistant (salary scale E 13 TV-L, personnel quota 50%)
limited for 2 years.

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach his or her own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

Applicants are expected to be interested in the chair’s main areas of research. They should possess an above-average German First State Examination (at least “vollbefriedigend”) or a foreign equivalent degree and be fluent in German. In addition, a thorough knowledge of German civil law as well as conflict of laws, comparative law and/or international procedural law is a necessity. Severely handicapped persons will be preferred provided that their qualification is equal.

Please send your application (curriculum vitae, certificates and, if available, further proofs of talent) to Prof. Dr. Jan von Hein, Institut für ausländisches und internationales Privatrecht, Abt. III, Peterhof, Niemensstr. 10, D-79098 Freiburg (Germany) no later than 30 November, 2015.

As the application documents will not be returned, applicants are kindly requested to submit only unauthenticated copies. Alternatively, the documents may be sent as a pdf-file via e-mail to ipr3@jura.uni-freiburg.de.

“These general terms and conditions will be governed by and construed in accordance with English law. 

With respect to any suit, action or proceedings relating to these general terms and conditions each party irrevocably submits to the jurisdiction of the English courts.”

In Anchorage, the High Court had already dismissed a semantic approach to choice of court agreements in contracts (and choice of court clauses) subject to English law. In Global Maritime Investments Cyprus v O.W., Teare J considered in summary judgment, sought by GMI, whether the aforementioned clause is exclusive, and if not, whether proceedings commenced by GMI in England, block any future proceedings on the same (or wider) contractual issues sought by OW in Denmark. GMI had started proceedings in England following OW’s November 2014 filing for bankruptcy in Denmark. OW had initiated proceedings in Denmark in March 2015. At issue was among others the ‘netting-out’ provisions between parties (effectively, a final settlement of reciprocal dues in different currencies, with derivatives of commodity transactions being the underlying transactions between the parties in this case).

Teare J held that the clause even if not so phrased verbatim, was meant to be exclusive, among others in line with what ‘the reasonable commercial man’ (the bonus mercator, if you like) would have understood the clause to be, especially under the lex contractus, English law. All the more so in light of the use of ‘irrevocably’. At 51 he does offer sound commercial advice to avoid disputes such as the one at issue: it is desirable to employ transitive language, such as in ‘each party agrees to submit all claims’.

I do not think there is justification for the Court not to have considered the impact of the Brussels I (and /or Recast) Regulation on the clause: the judgment keeps entirely shtum about it. Under the rules of the Regulation, all clauses are considered exclusive unless specifically stated. Saying that the clause expressis verbis amounts to non-exclusivity, would be quite a stretch. (I agree it is not clearly worded exclusively – however that is exactly where the Brussels I Regulation is of assistance).

It is quite clear to me that this judgment (issued 17 August – I have delayed reporting for exam reasons) will not be the end of the jurisdictional affair. In particular, parties I am sure will be at loggerheads as to what litigation is to be considered ‘relating to these general terms and conditions’, in particular with OW’s insolvency proceedings in the background.

Geert.

Matthias Lehmann, University of Bonn, has posted ‘Recognition as a Substitute for Conflict of Laws?’, a chapter in a forthcoming book on ‘General Principles of European Private International Law’ (Stefan Leible, ed.), on SSRN. The piece weighs a whole spectre of arguments for and against an EU version of the Full Faith and Credit Clause in the US constitution. It summarizes over a decade scholarly debate in Europe, fuelled by of ECJ decisions and Commission proposals. In the end, Lehmann rejects a general rule of recognition with regard to ‘legal situations’ created in other Member States. Yet he favours obliging authorities and courts to recognise such situations where they are recorded in official documents or public registers, provided that appropriate conditions and safeguards are in place. Among the latter is a sufficient connection between the legal situation and the Member State of origin of the document or register entry as well as a well-defined public policy exception. Lehmann concludes that recognition will not replace conflict of laws, but may be a welcome second pillar for achieving harmonious solutions in a judicial area with rising mobility of its citizens. He therefore encourages the European Commission to pursue his ambitious idea of introducing a rule of recognition into EU law.

The piece can be downloaded here.

Zheng Sophia Tang, Electronic Consumer Contracts in the Conflict of Laws, Hart Publishing, 2015, ISBN 9781849466912, pp. 432, GBP 65.

[Dal sito dell’editore] – The second edition of this highly recommended work addresses the interaction between conflict of laws, electronic commerce and consumer contracts. In addition it identifies specific difficulties that conflicts lawyers and consumer lawyers encounter in electronic commerce and proposes original approaches to balance the conflict of interest between consumers’ access to justice and business efficiency. The European Union has played a leading role in this area of law and its initiatives are fully explored. It pays particular attention to the most recent development in collective redress and alternative/online dispute resolution. By adopting multiple research methods, including a comparative study of the EU/US approach; historical analysis of protective conflict of laws; doctrinal analysis of legal provisions and economic analysis of law to provide, it provides the most comprehensive examination of frameworks in cross-border consumer contracts.

Maggiori informazioni sono reperibili qui.