Droit international général

The third issue of 2015 of the Dutch Journal on Private international Law, Nederlands Internationaal Privaatrecht, contains contributions on the Hague Convention on Choice of Court Agreements, financial losses under the Brussels I Regulation, Recognition of Dutch insolvency orders in Switzerland, and Indonesian Private International Law.

Marta Pertegás, ‘Guest Editorial: Feeling the heat of disputes and finding the shade of forum selection’, p. 375-376.

Tomas Arons, ‘Case Note: On financial losses, prospectuses, liability, jurisdiction (clauses) and applicable law. European Court of Justice 28 January 2015, Case C-375/13 (Kolassa/Barclays Bank)’, p. 377-382.

The difficult question of where financial losses are directly sustained has been (partly) solved by the European Court of Justice on 28 January 2015. In Kolassa the ECJ ruled that an investor suffers direct financial losses as a result of corporate misinformation (i.e. misleading information published by a company issuing (traded) shares or bonds) in the place where he holds his securities account. The impact of this ruling is not limited to the question of international jurisdiction. The Rome II Regulation prescribes that the law applicable to tort claims is the law of the country in which the direct losses are sustained. The second part deals with the question whether an investor can be bound by an exclusive jurisdiction clause in the prospectus or other investor information document. In the near future the ECJ will rule on this matter in the Profit Investment SIM case. [free sample]

Raphael Brunner, ‘Latest Legal Practice: Switzerland discovers the Netherlands on the international insolvency map’, p. 383-389.

By a decision of March 27, 2015 the Swiss Federal Court ruled for the first time in a leading case that the Swiss Courts have to recognize Dutch insolvency orders. It is astonishing that up until now Dutch insolvency orders have not been recognised by the Swiss Courts and hence Dutch insolvency estates and liquidators or trustees (hereafter referred to as liquidators) neither had access to the assets of a Dutch insolvency estate in Switzerland nor to the jurisdiction of the Swiss Courts. The reason for this is that the private international laws of Switzerland and the Netherlands pursue completely different approaches in international insolvency matters. The new decision by the Swiss Federal Court is interesting both from a (theoretical) perspective of private international law as well as from the (practical) perspective of a Dutch liquidator of a Dutch insolvency estate having assets in Switzerland or claims against debtors in Switzerland.

Tiurma Allagan, ‘Foreign PIL – Developments in Indonesia: The Bill on Indonesian Private International Law’, p. 390-403.

This article discusses the background and contents of the proposal for an Indonesian Private International Law Act that was issued in November 2014.

If you are interested in contributing to this journal please contact the editorial manager Ms Wilma Wildeman  at w.wildeman@asser.nl.

Il 7 novembre 2015, l’Università di Messina ospiterà un convegno dedicato a La protezione dei dati personali e informatici nell’era della sorveglianza globale. 

La giornata di studi sarà articolata in due sessioni, una delle quali dedicata ai profili di diritto internazionale privato. La sessione sarà presieduta e moderata da Nerina Boschiero (Univ. Statale di Milano) ed ospiterà le relazioni di Paolo Bertoli (Univ. Insubria), Livio Scaffidi Runchella e Marcella Distefano (entrambi Univ. Messina).

Il programma completo ed ulteriori informazioni sono reperibili a questo indirizzo.

Two weeks ago I had the pleasure of announcing the publication of the new edition of the EU-Zivilprozessrecht: EuZPR, authored by Prof. Schlosser and Hess. The Department of European and Comparative Procedural Law of the Max Planck Institute Luxembourg has decided to combine the launching of the book with a seminar entitled “The Departure of the European Law of Civil Procedure”, to take place next  November 11, at the MPI premises in Luxembourg. The seminar will count with the presence of Prof. Schlosser himself; other prominent speakers will be Judge Marko Ileši? (CJEU) and Prof. Jörg Pirrung. To download the full programme of the event click here.

The seminar starts at 4 pm and will be followed by a reception. It is open to all  those willing to attend upon registration (contact person: secretariat-prof.hess@mpi.lu).

How exactly is the EU bound by public international law? What is the justiciability of acts of foreign sovereign nations in EU courts? To what extent can an individual rely on customary or other sources of public international law, in national courts or at the CJEU?  All of these questions often puzzle non-lawyers (if something is illegal due to a higher rule, how can the lower rule still be in existence) and lawyers alike. At the EU level, things are complicated due to the hybrid (OK: sui generis) nature of the EU, and its complicated relationship with international law.

In Western Sahara Campaign UK, claimant is an independent voluntary organisation founded in 1984 with the aim of supporting the recognition of the right of the Saharawi people of Western Sahara to self-determination and independence and to raise awareness of the unlawful occupation of the Western Sahara. Defendants are the Inland Revenue, challenged for the preferential tariff given on import to the UK of goods that are classified as being of Moroccan origin but in fact originate from the territory of Western Sahara. The second challenge is brought against the Secretary of State for the Environment and Rural Affairs (DEFRA) in respect of the intended application of the EU-Morocco Fisheries Partnership Agreement to policy formation relating to fishing in the territorial waters of Western Sahara.

Essentially, it is claimed that defendants ought not to apply the relevant European agreements for these are, arguably, in violation of public international law. Claimant contends that Morocco has annexed the territory of Western Sahara and claims it as part of its sovereign territory despite decisions of the United Nations and the International Court of Justice (ICJ) that the people of Western Sahara have the right to self-determination. Accordingly it is said that Morocco’s occupation is in breach of the principles of international law and the Charter of the United Nations.

Under EU law, only the CJEU can establish the invalidity of EU law. Blake J decided to send the case to Luxembourg for preliminary review. Defendants opposed such reference primarily because they submit that the issues raised by the claimant are matters of public international law that the CJEU will decline to adjudicate on in the present circumstances. Precedent which they relied on is not unequivocal, however. This case therefore will be an opportunity for the CJEU (Grand Chamber, one would imagine) to clarify the relationship between EU and public international law.

Geert.

Sandra Mantu, Contingent Citizenship. The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill, 2015, ISBN: 9789004292994, pp. 388, 155 Euro.

[Dal sito dell’editore] – In Contingent citizenship, Sandra Mantu examines the changing rules of citizenship deprivation in the UK, France and Germany from the perspective of international and European legal standards. In practice, two grounds upon which loss of citizenship takes place stand out: fraud in the context of fraudulent acquisition of nationality and terrorism in the context of national security. Newly naturalised citizens and citizens of immigrant origin are mainly targeted by these measures. The resurrection of the importance attached to loyalty as the citizen’s main duty towards his/her state shows that the rules on loss of citizenship are capable of expressing ideals of membership and identity, while the citizenship status of certain citizens remains contingent upon meeting these ideals.

Ulteriori informazioni sono reperibili qui.

TDM is pleased to announce a forthcoming special issue on international arbitration involving commercial and investment disputes in Africa.

Africa’s accelerating economic development is attracting a substantial increase in cross-border commerce, trade, and investment on the continent, and disputes arising from this increased economic activity are inevitably bound to follow. International arbitration will be the preferred method for resolving many of these disputes. Indeed, the growing focus on international arbitration to resolve commercial and investment disputes relating to Africa is reflected, among other ways, in the fact that the International Council on Commercial Arbitration (ICCA) will be holding its 22nd Congress for the first time in Africa in May 2016 in Mauritius.

To a great extent, the issues that arise in international arbitration in or relating to Africa will be no different than those that arise in arbitrations around the globe. Converging international arbitration procedures and the predictability and stability afforded by the New York Convention and Washington Convention help to ensure that this is the case. Yet party autonomy remains a core value of the international arbitral system, and, as such, regional approaches and local culture will continue to shape African-related arbitrations to a degree, just as they do elsewhere. Africa’s rapid development is also likely to play a role in shaping international arbitration in this region.

This special issue will explore topics of particular interest and relevance to international arbitration in light of Africa’s unique and evolving situation. The issue will focus on sub-Saharan Africa and will address issues pertaining to both commercial and investment arbitration. It will also likely explore alternative methods for resolving disputes, including litigation, mediation, and local dispute-resolution mechanisms.

Possible topics for submission to the special issue might include:

* The proliferation of international arbitral institutions in Africa and what the future holds for institutional arbitration on the African continent;

* The attitudes of African states and state-owned enterprises towards international commercial arbitration;

* Salient issues in the OHADA international arbitration framework;

* The influence of China and other Asian countries on international arbitration in Africa;

* Issues in enforcing arbitral awards in African states;

* Evolving attitudes in Africa towards bilateral investment treaties (BITs) and the extent to which BITs are (or are not) helping African states attract foreign direct investment;

* South Africa’s draft investment law and other notable country-specific developments in Africa;

* Cultural issues impacting international arbitration in Africa;

* Empirical studies relating to international arbitration in Africa;

* Capacity building for arbitrators, judges, and practitioners in the region; and

* Alternative methods of resolving cross-border commercial and investment disputes in Africa.

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue.

This special issue will be edited by Thomas R. Snider (Greenberg Traurig LLP), Professor Won Kidane (Seattle University Law School and the Addis Transnational Law Group), and Perry S. Bechky (International Trade & Investment Law PLLC).

Please address all questions and proposals to the editors at SniderT@gtlaw.com, kidanew@seattleu.edu, and pbechky@iti-law.com, copied to info@transnational-dispute-management.com.

Anche quest’anno, il 25 ottobre 2015 si celebra la giornata europea della giustizia civile. In questa occasione gli Stati del Consiglio d’Europa sono invitati ad organizzare incontri volti alla formazione degli operatori del diritto e alla sensibilizzazione delle persone verso i temi della giustizia civile, compresa la cooperazione giudiziaria.

In questo contesto, si segnalano, in Italia, due eventi in programma il 26 ottobre 2015, rispettivamente a Catania e a Firenze.

Il primo, organizzato dalla Scuola Superiore della Magistratura – Struttura territoriale di formazione decentrata del Distretto di Catania, avrà ad oggetto La responsabilità civile: nuove e vecchie questioni interne e prospettive europee (vedi qui). L’altro, a cura della Camera civile e della Corte d’appello di Firenze, sarà dedicato a Le successioni transfrontaliere. Cosa cambia dopo l’entrata in vigore del Regolamento Europeo n. 650/2012 (questo il programma).

Il 4 novembre 2015, poi, si terrà a Ferrara, sempre in relazione alla Giornata europea della Giustizia civile, un convegno interdisciplinare organizzato dal Tribunale e dal Dipartimento di Giurisprudenza dell’Università di Ferrara.

Si parlerà de L’accesso alla giustizia dei consumatori: le controversie di consumo tra giustizia ordinaria e ADR (Giovanni De Cristofaro, Univ. Ferrara), de Le linee guida dell’ultima riforma della legge fallimentare alla luce delle raccomandazioni della Commissione europea su un nuovo approccio al fallimento delle imprese ed all’insolvenza (Andrea Lolli, Univ. Ferrara, e Stefano Giusberti, Trib. Ferrara), nonché di Nuovi strumenti per la tutela transnazionale del credito commerciale: dalla riforma del regolamento Bruxelles I all’ordinanza europea di sequestro conservativo dei conti bancari (Pietro Franzina, Univ. Ferrara).

La locandina di quest’ultimo evento è reperibile qui.

Le segnalazioni relative agli eventi programmati in occasione della giornata europea della giustizia civile nei diversi Stati del Consiglio d’Europa confluiscono in questi giorni a questo indirizzo.

Burkhard Hess, Cristina M. Mariottini, Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments, Ashgate, 2015, ISBN 9781472473301, pp. 400, GBP 72.

[Dal sito dell’editore] – A new volume has recently been published in the Max Planck Institute Luxembourg Book Series. Ensuring the effective right to privacy regarding the gathering and processing of personal data has become a key issue both in the internal market and in the international arena. The extent of one’s right to control their data, the implications of the ‘right to be forgotten’, the impact of the Court of Justice of the European Union’s decisions on personality rights, and recent defamation legislation are shaping a new understanding of data protection and the right to privacy. This book explores these issues with a view to assessing the status quo and prospective developments in this area of the law which is undergoing significant changes and reforms.

Ulteriori informazioni, compreso il sommario dell’opera, sono disponibili in inglese e in tedesco, rispettivamente, qui e qui.

The Max Planck Institute Luxembourg is accepting applications for the 2016 Summer School on Approaches to Procedural Law: The Pluralism of Methods, organised in collaboration with the International Association of Procedural Law under the direction of Loïc Cadiet (Université Paris 1 – Sorbonne) and Burkhard Hess (MPI Luxembourg).

The Summer School will take place at the Max Planck Institute Luxembourg between 10 and 13 July 2016. Up to 20 places will be available for applicants having procedural law and/or dispute resolution mechanisms as their main field of academic interest.

The deadline for applications is 31 January 2016.

[From the press release] – The first IAPL-MPI Summer School at the premises of the Max Planck Institute in Luxembourg in July 2014 was a successful experience, recently crowned by the publication of the collective book Procedural Science at the Crossroads of Different Generations (Nomos 2015). This success has encouraged the organization of a second edition in 2016. The second edition of IAPL-MPI Post-Doctoral Summer School aims like the first one to bring together outstanding young post-doc researchers of any nationality dealing with European and comparative procedural law, as well as with other relevant dispute mechanisms for civil controversies. Researchers at the very ending stage of their PhD project are also invited to apply. The School will give them an opportunity to openly share and discuss their current project of research with other young colleagues, but also with experienced law professors and practitioners. In this regard, Luxembourg is presently for many reasons one of the most interesting venues in Europe, where many opportunities for exchanges between procedural theory and practice are offered.

Further details can be found here

The Polish Yearbook of International Law has issued a call for unpublished papers addressing, inter alia, private international law topics, to be included in its next volume.

The deadline for submissions is 31 January 2016.

Further information can be found here.

In my posting on Lutz I flagged the increasing relevance of Article 13 of the Insolvency Regulation. This Article neutralises the lex concursus in favour of the lex causae governing the act between a person (often a company) benefiting from an act detrimental to all the creditors, and the insolvent company. Classic example is a payment made by the insolvent company to one particular creditor. Evidently this is detrimental to the other creditors, who are confronted with reduced means against which they can exercise their rights. Article 13 reads

Detrimental acts. Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that: – the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and – that law does not allow any means of challenging that act in the relevant case.

In the case at issue, C-310/14, Nike (incorporated in The Netherlands) had a franchise agreement with Sportland Oy, a Finnish company. This agreement is governed by Dutch law (through choice of law). Sportland paid for a number of Nike deliveries. Payments went ahead a few months before and after the opening of the insolvency proceedings. Sportland’s liquidator attempts to have the payments annulled, and to have Nike reimburse.

Under Finnish law, para 10 of the Law on recovery of assets provides that the payment of a debt within three months of the prescribed date may be challenged if it is paid with an unusual means of payment, is paid prematurely, or in an amount which, in view of the amount of the debtor’s estate, may be regarded as significant. Under Netherlands law, according to Article 47 of the Law on insolvency (Faillissementswet), the payment of an outstanding debt may be challenged only if it is proven that when the recipient received the payment he was aware that the application for insolvency proceedings had already been lodged or that the payment was agreed between the creditor and the debtor in order to give priority to that creditor to the detriment of the other creditors.

Nike first of all argued, unsuccessfully in the Finnish courts, that the payment was not ‘unusual’. The Finnish courts essentially held that under relevant Finnish law, the payment was unusual among others because the amount paid was quite high in relation to the overall assets of the company. Nike argues in subsidiary order that Dutch law, the lex causae of the franchise agreement, should be applied. Attention then focussed (and the CJEU held on) the burden of proof under Article 13, as well as the exact meaning of ‘that law does not allow any means of challenging that act in the relevant case.‘

Firstly, the Finnish version of the Regulation seemingly does not include wording identical or similar to ‘in the relevant case‘ (Article 13 in fine). Insisting on a restrictive interpretation of Article 13, which it had also held in Lutz, the CJEU held that all the circumstances of the cases need to be taken into account. The person profiting from the action cannot solely rely ‘in a purely abstract manner, on the unchallengeable character of the act at issue on the basis of a provision of the lex causae‘ (at 21).

Related to this issue the referring court had actually quoted the Virgos Schmit report, which reads in relevant part (at 137) ‘By “any means” it is understood that the act must not be capable of being challenged using either rules on insolvency or general rules of the national law applicable to the act’. This interpretation evidently reduces the comfort zone for the party who benefitted from the act. It widens the search area, so to speak. It was suggested, for instance, that Dutch law in general includes a prohibition of abuse of rights, which is wider than the limited circumstances of the Faillissementswet, referred to above.

The CJEU surprisingly does not quote the report however it does come to a similar conclusion: at 36: ‘the expression ‘does not allow any means of challenging that act …’ applies, in addition to the insolvency rules of the lex causae, to the general provisions and principles of that law, taken as a whole.’

Attention then shifted to the burden of proof: which party is required to plead that the circumstances for application of a provision of the lex causae leading to voidness, voidability or unenforceability of the act, do not exist? The CJEU held on the basis of Article 13’s wording and overall objectives that it is for the defendant in an action relating to the voidness, voidability or unenforceability of an act to provide proof, on the basis of the lex causae, that the act cannot be challenged. Tthe defendant has to prove both the facts from which the conclusion can be drawn that the act is unchallengeable and the absence of any evidence that would militate against that conclusion (at 25).

However, (at 27) ‘although Article 13 of the regulation expressly governs where the burden of proof lies, it does not contain any provisions on more specific procedural aspects. For instance, that article does not set out, inter alia, the ways in which evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it.‘

‘(T)he issue of determining the criteria for ascertaining whether the applicant has in fact proven that the act can be challenged falls within the procedural autonomy of the relevant Member State, regard being had to the principles of effectiveness and equivalence.’ (at 44)

The Court therefore once again bumps into the limits of autonomous interpretation. How ad hoc, concrete (as opposed to ‘in the abstract’: see the CJEU’s words, above) the defendant has to be in providing proof (and foreign expert testimony with it), may differ greatly in the various Member States. Watch this space for more judicial review of Article 13.

Geert.

A new article by Dr. Manuel Penadés Fons, London School of Economics, has been published at the Modern Law Review, (2015) 78(2) MLR 241–295.

Abstract

English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.

The programme of the the Fifth Biennial Conference of the Asian Society of International Law, that will take place in Bangkok on 26 and 27 November 2015 under the title International Law and the Changing Economic & Political Landscape in Asia, is now available.

Some of the conference panels will deal with private international law issues. In particular, one panel will be devoted to Conflict of Laws Issues Relating To Family, Marriage & Children and will host presentations by Ornella Feraci (University of Florence), The Impact of the Best Interests of the Child on the Recognition of Civil Status Lawfully Acquired Abroad Following International Surrogacy Arrangements (ISAs); M.Z. Ashraful (Metropolitan University, Sylhet, Bangladesh), Conflict of Laws Complexities Arising from the International Surrogacy Agreement: A Study on South Asian Countries; Monica Chawla (Indian Society of International Law), Conflicts of Laws Arising Due to Inter-country Adoptions – An Analysis;  Andrea Susanne Büchler (University of Zurich), Divided Motherhood Across the Globe: Surrogacy and Legal and Cultural Encounters between Europe and Asia.

The whole programme is available here. The abstracts of the presentations may be found here and here.

For more information see here.

One night this week I was teaching a taster class to final year secondary school students (17-18yr olds). I decided I should make it challenging enough. This, I surmised, would help all those present. Either they would now run a mile from Law School, never to look back (thus taking away all doubt). Or their curiosity would be tickled enough for them to want to learn more (thus for them, too, taking away all doubt). I settled on CSR and conflicts: the Shell Nigeria case, with links to Kiobel (and Adam Smith, David Ricardo; special purpose vehicles; and the impending merger between Leuven’s AB Inbev and SAB Miller. All very exciting stuff!, in an allocated tome slot of 30 minutes). I hope readers will agree that conflict of laws does just the trick referred to above: scare off the doubters; pull in the doubters.

Anyways, that class was at the back of my mind as I was reading up on Americold Logistics. I am not a US trained or US qualified lawyer hence this posting may not be howler-proof however I understand that one particular avenue to gain access to US federal courts (as opposed to State courts; and over and above the issue being an issue based on federal law), is so-called ‘diversity jurisdiction’. This means the federal courts can hear a case if the citisenship of the parties involved is diverse: i.e. of at least two different US States or one of them being foreign. I also understand that to determine corporate citisenship, reference is made to the principal place of business (not therefore generally co-inciding with place of incorporation).

But how about trusts? What identify does a trust have with a view to diversity jurisdiction? In Americold Logistics, the Tenth Circuit sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties. The issue is disputed, following relevant (seemingly inconclusive) precedent, summarised by SCOTUS here.  The USCC has now granted certiorari.

This judgment will be of quite some relevance to US legal (trust) practice. I think readers will agree that it was wise not to pick it, and the wider issue of trust identity, for lawyers in spe.

Geert.

This year’s volume of the Yearbook of Private International Law is just about to be released. The Yearbook is edited by Professors Andrea Bonomi (Lausanne) and Gian Paolo Romano (Geneva) and published in association with the Swiss Institute of Comparative Law. This year’s edition is the first volume to be published by Otto Schmidt (Cologne), ISBN 978-3-504-08004-4. It is 588 pages strong and costs 189,00 €. For further information, please click here.

The new volume contains the following contributions:

Doctrine
Linda J. SILBERMAN
Daimler AG v. Bauman: A New Era for Judicial Jurisdiction in the United States
Rui Manuel MOURA RAMOS
The New Portuguese Arbitration Act (Law No. 63/2011 of 14 December on Voluntary Arbitration)
Francisco GARCIMARTÍN
Provisional and Protective Measures in the Brussels I Regulation Recast
Martin ILLMER
The Revised Brussels I Regulation and Arbitration – A Missed Opportunity?
Ornella FERACI
Party Autonomy and Conflict of Jurisdictions in the EU Private International Law on Family and Succession Matters
Gian Paolo ROMANO
Conflicts between Parents and between Legal Orders in Respect of Parental Responsibility

Special Jurisdiction under the Brussels I-bis Regulation
Thomas KADNER GRAZIANO
Jurisdiction under Article 7 no. 1 of the Recast Brussels I Regulation: Disconnecting the Procedural Place of Performance from its Counterpart in Substantive Law. An Analysis of the Case Law of the ECJ and Proposals de lege lata and de lege ferenda
Michel REYMOND
Jurisdiction under Article 7 no. 1 of the Recast Brussels I Regulation: The Case of Contracts for the Supply of Software
Jan VON HEIN
Protecting Victims of Cross-Border Torts under Article 7 No. 2 Brussels Ibis: Towards a more Differentiated and Balanced Approach

Surrogacy across State Lines: Challenges and Responses
Marion MEILHAC-PERRI
National Regulation and Cross-Border Surrogacy in France
Konstantinos ROKAS
National Regulation and Cross-Border Surrogacy in European Union Countries and Possible Solutions for Problematic Situations
Michael WELLS-GRECO / Henry DAWSON
Inter-Country Surrogacy and Public Policy: Lessons from the European Court of Human Rights

Uniform Private International Law in Context
Apostolos ANTHIMOS
Recognition and Enforcement of Foreign Judgments in Greece under the Brussels I-bis Regulation
Annelies NACHTERGAELE
Harmonization of Private International Law in the Southern African Development Community

News from Brussels
Michael BOGDAN
Some Reflections on the Scope of Application of the EU Regulation No 606/2013 on Mutual Recognition of Protection Measures in Civil Matters

National Reports
Diego P. FERNANDEZ ARROYO
A New Autonomous Dimension for the Argentinian Private International Law System
Maja KOSTIC-MANDIC
The New Private International Law Act of Montenegro
Claudia LUGO HOLMQUIST / Mirian RODRÍGUEZ REYES
Divorce in the Venezuelan System of Private International Law
Maria João MATIAS FERNANDES
International Jurisdiction under the 2013 Portuguese Civil Procedure Code
Petra UHLÍROVÁ
New Private International Law in the Czech Republic

Forum
Chiara MARENGHI
The Law Applicable to Product Liability in Context: Article 5 of the Rome II Regulation and its Interaction with other EU Instruments
Marjolaine ROCCATI
The Role of the National Judge in a European Judicial Area – From an Internal Market to Civil Cooperation

Ad oltre due mesi di distanza dalla pubblicazione della legge n. 101 del 18 giugno 2015, di autorizzazione alla ratifica, l’Italia ha provveduto, il 30 settembre 2015, al deposito del proprio strumento di ratifica della Convenzione sulla competenza, la legge applicabile, l’efficacia delle decisioni e la cooperazione in materia di responsabilità genitoriale e di misure di protezione dei minori, fatta all’Aja il 19 ottobre 1996 (si veda da ultimo, sull’iter del processo di ratifica, questo post).

La Convenzione, come previsto dal suo art. 61, par. 2, lett. a), entrerà in vigore per l’Italia il 1° gennaio 2016.

La ratifica italiana è accompagnata da diverse dichiarazioni.

Innanzitutto, come gli altri Stati membri dell’Unione, l’Italia ha dichiarato – nei termini contemplati sin dalla decisione 2003/93/CE, del Consiglio, del 19 dicembre 2002 – che gli articoli 23, 26 e 52 della Convenzione concedono alle parti contraenti una certa flessibilità ai fini della semplicità e della rapidità del regime di riconoscimento ed esecuzione delle decisioni e che la normativa comunitaria prevede un sistema di riconoscimento ed esecuzione che è almeno altrettanto favorevole quanto le norme stabilite dalla Convenzione. Di conseguenza, prosegue la dichiarazione, una decisione emanante da un organo giurisdizionale di uno Stato membro dell’Unione su una questione relativa alla Convenzione è riconosciuta ed eseguita in Italia in applicazione delle pertinenti norme interne del diritto comunitario.

Avvalendosi della facoltà prevista all’art. 55 della Convenzione, l’Italia ha poi reso noto di riservare la competenza delle proprie autorità quanto all’adozione di misure volte alla protezione dei beni di un minore che si trovino sul territorio italiano. Ha inoltre dichiarato di riservarsi il diritto di non riconoscere una responsabilità genitoriale o una misura che potrebbe essere incompatibile con una misura adottata dalle sue autorità riguardo a tali beni.

Un’ulteriore dichiarazione resa dall’Italia contestualmente alla ratifica si riferisce all’art. 34, par. 1, della Convenzione. La norma ora ricordata stabilisce che, in previsione dell’adozione di una misura di protezione, le autorità competenti ai sensi della Convenzione possono domandare ad ogni autorità di un altro Stato contraente che detenga informazioni utili per la protezione del minore di comunicargliele. In forza della dichiarazione, tale richiesta, ove sia rivolta alle autorità italiane, potrà essere fatta – come consente l’art. 34, par. 2 – esclusivamente per il tramite dell’Autorità centrale italiana, identificata, ai sensi dell’art. 3 della legge n. 101/2015, nella Presidenza del Consiglio dei Ministri.

Alla stessa Autorità centrale dovranno essere indirizzare le domande di cui agli articoli 8, 9 e 33 della Convenzione, provenienti dagli altri Stati contraenti. Le disposizioni ora citate riguardano, in sintesi, il trasferimento del caso a un’autorità meglio collocata per pronunciarsi su di esso (articoli 8 e 9), e il collocamento del minore in una famiglia di accoglienza o in un istituto (o la sua assistenza legale tramite kafala o istituto analogo), quando tale collocamento (o assistenza) avverrà in un altro Stato contraente (art. 33).

L’approssimarsi dell’entrata in vigore per l’Italia rende urgente l’adozione, nell’ordinamento interno, di quelle misure di attuazione e di coordinamento con le norme esistenti che il Parlamento non è stato in grado di elaborare assieme alla legge di autorizzazione alla ratifica e all’emanazione dell’ordine di esecuzione.

Il disegno di legge recante tali misure (atto Senato n. 1552 bis), stralciato dal disegno di legge di autorizzazione alla ratifica, è tuttora allo studio della Commissione Giustizia del Senato, che nella seduta del 21 luglio 2015 ha prospettato lo svolgimento di un ciclo di audizioni.

Ensuring the effective right to privacy regarding the gathering and processing of personal data has become a key issue both in the internal market and in the international arena. The extent of one’s right to control their data, the implications of the ‘right to be forgotten’, the impact of the Court of Justice of the European Union’s decisions on personality rights, and recent defamation legislation are shaping a new understanding of data protection and the right to privacy. This book, edited by B. Hess and Cristina M. Mariottini, explores these issues with a view to assessing the status quo and prospective developments in this area of the law which is undergoing significant changes and reforms.

Contents:
Foreword, PEDRO CRUZ VILLALÓN
The Court of Justice of the EU Judgment on Data Protection and Internet Search Engines: Current Issues and Future Challenges, CHRISTOPHER KUNER
The CJEU Judgment in Google Spain: Notes on Its Causes and perspectives on Its Consequences, CRISTIAN ORO MARTINEZ
The CJEU’s Decision on the Data Retention Directive, MARTIN NETTESHEIM
The CJEU’s decision on the Data Retention Directive: Transnational Aspects and the Push for Harmonisation – A Comment on Professor Martin Nettesheim, GEORGIOS DIMITROPOULOS
The Protection of Privacy in the Case Law of the CJEU, BURKHARD HESS
Freedom of Speech and Foreign Defamation Judgments: From New York Times v Sullivan via Ehrenfeld to the 2010 SPEECH Act, CRISTINA M MARIOTTINI

Further information is available here (English) and here (German).

A lot of attention last week went to the CJEU’s annulment of the EC’s ‘Safe Harbour’ decision in Schrems v Facebook  (aka Austrian student takes on internet giant). I will not detail that finding for I assume, for once, that readers will be au fait with that judgment. For those who are not: please refer to Steve Peers for excellent analysis as per usual. It is noteworthy though that the CJEU’s finding in Schrems is based in the main on a finding of ultra vires: often easily remedied, as those with a background in public law will know.

Schrems (held 6 October) confirmed the Court’s approach to the EU’s prescriptive jurisdiction in data protection laws, as in Google Spain. However the Thursday before, on 1 October, the Court took a more restrictive view on ‘executive’ or ‘enforcement’ jurisdiction in Case C-230/14 Weltimmo. Lorna Woods has the general context and findings over at EU Law analysis. The essence in my view is that the Court insists on internal limitations to enforcement. It discussed the scope of national supervisory authority’s power in the context of Directive 95/4, the same directive which was at issue in Google Spain. The Court held

Where the supervisory authority of a Member State, to which complaints have been submitted in accordance with Article 28(4) of Directive 95/46, reaches the conclusion that the law applicable to the processing of the personal data concerned is not the law of that Member State, but the law of another Member State, Article 28(1), (3) and (6) of that directive must be interpreted as meaning that that supervisory authority will be able to exercise the effective powers of intervention conferred on it in accordance with Article 28(3) of that directive only within the territory of its own Member State. Accordingly, it cannot impose penalties on the basis of the law of that Member State on the controller with respect to the processing of those data who is not established in that territory, but should, in accordance with Article 28(6) of that directive, request the supervisory authority within the Member State whose law is applicable to act.

In other words, the supervisory authority in a Member State can examine the complaints it receives even if the law that applies to the data processing is the law of another Member State. However the scope of its sanctioning power is limited by its national borders.

This finding (I appreciate there are caveats) has important implications for the discussion on the territorial reach of the so-called ‘righ to be forgotten’. It supports in my view, the argument that the EU cannot extend its right to be forgotten rule to websites outside the EU’s domain. I have a paper forthcoming which discusses the various jurisdictional issues at stake here and the impact of Weltimmo on same.

Geert.

On the occasion of the 35th Anniversary of the Vienna Convention on Contracts for the International Sale of Goods (CISG), the Faculty of Law of the University of Zagreb will host a conference, organised together with Uncitral, titled 35 Years of CISG – Present Experiences and Future Challenges.

The conference will take place on 1  and 2 December 2015.

The first day will be dedicated to the Present Experiences concerning the application of the CISG, focusing on the use of the Convention especially in Central and Eastern European countries. In particular, the main topics that will be touched by twenty national reporters relate to the personal and substantive scope of the CISG, reservations to the CISG and rights and obligations arising out of sales contracts.

The second day will be devoted to the Future Challenges of CISG. There will be panel discussions focusing on The extensive interpretation and application of the CISG beyond the contracts of sale, What the CISG would look like if it was drafted for adoption today?, The interplay between the CISG and other legal sources of contract law (or contract principles).

The panels will feature the participation of Siniša Petrović (University of Zagreb), Joseph Lookofsky (Copenhagen Center for Commercial Law, University of Copenhagen), Loukas Mistelis (Queen Mary University of London), Kasper Steensgaard (Aarhus University), Azar Aliyev (Kiel Center for Eurasian Economic Law, Kiel University), Pilar Perales Viscasillas (Carlos III University of Madrid), Ingeborg Schwenzer (University of Basel/Swiss International Law School ), Harry M. Flechtner (University of Pittsburgh Law School), Ulrich G. Schroeter (University of Mannheim), Cyril Emery (UNCITRAL), Renaud Sorieul (the Secretary of UNCITRAL), Marta Pertegás (Hague Conference on Private International Law), Mikolaj Zaleski (EU Commission), José Angelo Estrella Faria (Secretary General Unidroit), Jelena Perović (University of Belgrade).

The official program of the conference can be found here.

For the on-line registration form and the registration fees, see here.

Information regarding accommodation is available here.

Professor Ronald A. Brand, the Chancellor Mark A. Nordenberg University Professor and the Director of the Center for International Legal Education at the University of Pittsburgh School of Law, has just posted a new article to SSRN regarding the “Continuing Evolution of U.S. Judgments Recognition Law.” It is available for download here. It generally deals with the history of such law from Hilton v. Guyot to the present day, demonstrates some of the problems indicated by recent cases, and comments on the federalism concerns that are delaying the ratification of the 2005 Hague Choice of Courts Convention in the United States. A more detailed abstract is below.

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgments recognition action is brought (recognition jurisdiction), and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments. This article reviews the history of U.S. judgments recognition law, summarizes current substantive law on the recognition and enforcement of foreign judgments, reviews recent decisions that demonstrate the three specific problem areas, and proposes a coordinated approach using federal substantive law on judgments recognition and state law on related matters in order to eliminate the current problems of non-uniformity and inefficient use of the courts.