Flux des sites DIP

On 10 July 2018, a seminar on the establishment of international business courts in five Member States. will be held in Rotterdam. It is jointly organized by Erasmus, the MPI Luxembourg and Utrecht University, will be held in Rotterdam We will discuss these initiatives, in particular the novelties in the court administration and the procedural rules, exchange views on the possible impact on international commercial and complex litigation, and reflect on the challenges ahead. Eminent speakers from the Netherlands, the United Kingdom, France, Germany, and Belgium will shed their light on these new courts and existing practices. The seminar will bring together practitioners, academics, business representatives and policy makers from different countries.

The organizers warmly invite you to attend! Please find the link to the full outline, the program, and registration here. We look forward to welcoming you in Rotterdam and to exchange views with you.

The seminar is organised by Erasmus School of Law under the ERC project ‘Building EU Civil Justice’ (Erasmus University Rotterdam), the Max Planck Institute for Procedural Law Luxembourg (Burkhard Hess), and the Montaigne Centre for Rule of Law and Administration of Justice of Utrecht University (Eddy Bauw).

Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany), has provided us with the following summary of the eagerly awaited decision in Jesner v Arab Bank.

On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobel decision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). In Kiobel, the Court rejected the application of the ATS to so-called foreign-cubed cases (cases in which a foreign plaintiff sues a foreign defendant for acts committed outside the territory of the US), but left the door open for cases that touch and concern the territory of the US (see also the early analysis of Kiobel by Trey Childress here). In Jesner v. Arab Bank, the majority now held that – in any case – “foreign corporations may not be defendants in suits brought under the ATS” (p. 27).

The respondent in the present case, Arab Bank, PLC, a Jordanian financial institution, was accused of facilitating acts of terrorism by maintaining bank accounts for jihadist groups in the Middle East and allowing the accounts to be used to compensate the families of suicide bombers. The petitioners further alleged that Arab Bank used its New York branch to clear its dollar-transactions via the so-called Clearing House Interbank Payment System (CHIPS) and that some of these transactions could have benefited terrorists. Finally, the petitioners accused Arab Bank of laundering money for a US-based charity foundation that is said to be affiliated with Hamas.

As in Kiobel, the facts of the case barely touch and concern the territory of the United States. The Court therefore held that “in this case, the activities of the defendant corporation and the alleged actions of its employees have insufficient connections to the United States to subject it to jurisdiction under the ATS” (p. 11). However, in order to overcome the divided opinions between the Courts of Appeals and to provide for legal certainty, the Supreme Court decided to answer the question of corporate liability under the ATS, but limited its answer to the applicability of the ATS to foreign corporations only. Justice Kennedy, who delivered the opinion of the majority vote, therefore based his reasoning on a cascade of three major arguments that rely on the precedents in Sosa and Kiobel.

First, the Court referred to the historic objective of the ATS, which was enacted “to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen” (p. 8 f.). Thus, the goal of the Statute’s adoption was to avoid disturbances in foreign relations and not to create them by alienating other countries. This was the main concern with the present case “that already ha[d] caused significant diplomatic tensions with Jordan for more than a decade” (p. 11).

Second, the Court emphasized the “strictly jurisdictional” character of the ATS and asked for a proper cause of action to impose liability on corporations in accordance with the test established in the Sosa-decision. The Sosa-test allows for the recognition of a cause of action for claims based on international law (p. 10), but requires the international legal provision to be “specific, universal and obligatory” (p. 11 f.). The majority concluded that it could not recognize such a norm as almost every relevant international law statute (e.g. the Rome Statute and the statutes of the ICTY and the ICTR) excludes corporations from its jurisdictional reach and, accordingly, limits its scope of application to individuals.

Thirdly, even if there was a legal provision justifying corporate liability in international law, the Supreme Court found that US courts should refrain from applying it without any explicit authorization from Congress. In this way, the Supreme Court upheld the separation-of-powers doctrine stating that it is the task of the legislature, not the judiciary, to create new private rights of action, especially when these pose a threat to foreign relations. From this reasoning, courts are required to “exercise ‘great caution’ before recognizing new forms of liability under the ATS” (p. 19). In doing so, courts should not create causes of action out of thin air but by analogous application of existing (and therefore Congress-approved) laws. However, neither the Torture Victim Protection Act (TVPA) nor the Anti-Terrorism Act (as the most analogous statutes) are applicable because the former limits liability to individuals whereas the latter provides a cause of actions to US-citizens only (thus being irreconcilable with the ATS, which is available only for claims brought by “an alien”; see p. 20-22).

Justice Sotomayor, who wrote a 34-page dissent, criticized the majority for absolving “corporations from responsibility under the ATS for conscience-shocking behavior” and argues that “[t]he text, history, and purpose of the ATS, as well as the long and consistent history of corporate liability in tort, confirm that tort claims for law-of-nations violations may be brought against corporations under the ATS” (Sotomayor, p. 1). However, the dissenting opinion could not prevail over the conservative majority.

Thus, for now, Jesner v Arab Bank has rendered human rights litigation against foreign corporations before US courts impossible. However, in contrast to this post’s title, the decision is not necessarily the end of the US human rights litigation. The ATS is still applicable if the defending corporation has its seat in the territory of the US. Moreover, the Court emphatically calls upon Congress to provide for legislative guidance. “If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate” (p. 27 f.). It remains to be seen whether Congress answers this call.

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

DIPLOMAT LAWYER ((FIRST) SECRETARY) with the following qualifications:

• Outstanding academic record and expertise in private international law (PIL);
• Common-law trained, with good comparative law background, including in the field of PIL
• Good knowledge of Hague Conventions (and other Hague instruments), including in the areas of Family Law and related Hague Children’s Conventions
• Good knowledge of public international law including the law of treaties; experience in international negotiations is desirable;
• Excellent drafting capabilities (dissertation and / or Ph.D., law review or other publication experience will be taken into account);
• 13-15 years of relevant post-qualification experience in academia, law practice, domestic administration, and/or in an intergovernmental organisation;
• Complete fluency both spoken and written, in at least one of the working languages of the Conference (French or English), with preference given to candidates who also have a strong working knowledge of the other official language;
• Applications from qualified female candidates are particularly welcomed;
• Candidates from outside Europe are especially encouraged to apply.

The selected candidate will reinforce the team at the Permanent Bureau; his or her portfolio will include several Conventions and may include ongoing legislative projects. He or she will be part of the senior management team and assure a good, co-operative working atmosphere, conducive to team work and efficient communications, both within the Permanent Bureau and in relations with representatives of States and Organisations (respect of the Permanent Bureau’s core values is essential). The selected candidate will represent the HCCH in dealings with Members as well as other stakeholders and interested parties. He or she will also be expected to assist with the administration of the Permanent Bureau.

The position requires frequent travel to both neighbouring and distant countries.

Type of appointment and duration: three-year contract (with a one-year probationary period), possibility for renewal (medical clearance required).

Grade (Co-ordinated Organisations scale for the Netherlands): +/- A4/A5 subject to relevant experience. Secretarial status granted according to the Statute of the Hague Conference and Diplomatic status, with the relevant privileges and immunities, according to the agreements of the Hague Conference with the Netherlands Ministry of Foreign Affairs.

Deadline for applications: 26 May 2018

Anticipated starting date: September/October 2018

Applications: written applications should be sent by e-mail, with Curriculum Vitae, letter of motivation and contact information for at least two references, to be addressed to the Secretary General, e-mail: applications@hcch.nl.

In view of the terms of the Statute of the HCCH according to which diversity of geographic representation and of legal expertise shall be taken into account, candidates should preferably not have (exclusively) Swiss, Canadian or Portuguese nationality.

The short-listed candidates whose applications are retained will be invited to an interview with a Selection Committee which will include the Chairman of the Netherlands Standing Government Committee, the Chairman of the Council on General Affairs and Policy, and Members of the Permanent Bureau. They may also be invited to take part in an external professional assessment.

The Permanent Bureau reserves the right not to make any appointment to this vacancy, to make an appointment at a lower grade, or to make an appointment with a modified job description.

In  [2018] EWHC 799 (QB) the High Court granted one and refused another delisting request, otherwise known as the ‘right to be forgotten’ following the CJEU’s judgment in Google Spain.

Of interest to data protection lawyers is Warby J’s excellent review of the test to be applied (particularly within the common law context of misuse of private information). Of interest to readers of this blog, is what is not yet part of the High Court’s ruling: the precise wording of the delisting order. Particularly: defendant is Google LLC, a US-based company. Will the eventual delisting order in the one case in which it was granted, include worldwide wording? For our discussion of relevant case-law worldwide, see here.

Geert.

Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. The Council evaluated her behaviour as proof that she was obviously not sufficiently assimilated to French culture in order to become a French citizen. In sharp contrast to this restrictive attitude, the High Administrative Court of Baden-Württemberg (Germany), in an earlier decision of 25 April 2017, allowed the naturalisation of a Syrian-born man to be upheld although it turned out that he had lied to German authorities about the fact that he had entered into a polygamous marriage abroad. The court argued that the appellant’s polygamous marriage as such did not amount to a violation of German public policy, which, in the context of naturalisation, is a rather narrowly phrased concept that presupposes a lack of loyalty to the German constitutional order. From a traditional choice of law point of view, however, there are rather convincing arguments for assuming a violation of German public policy: the husband’s first wife was a German national, and both spouses had their habitual residence in Germany, thus creating a very strong connection with the German legal order and its constitutional values on equality of the sexes. The case is now pending before the German Supreme Administrative Court in Leipzig.

Fellow faculty about to examine students on the Law of the World Trade Organisation, have their exam sorted (especially if it is an oral exam). In 2018 SCC 15 R v Comeau the Canadian Supreme Court held last week. At issue is New Brunswick’s restrictive regime on the import and sale of alcoholic beverages. Greg Tereposky and Daniel Hohnstein have background to the case.

Despite the Province’s regime having clear trade impact, the SC held that it was not illegal under Canada’s internal free trade rules – with occasional reference to GATT and WTO. For comparative and exam purposes, the interesting angle is clear: has the Supreme Court adopted the kind of aims and effects test which the WTO is no fan of?

Copy of the judgment. 15 mins prep. And Bob’s your (oral exam) uncle.

Geert.

(Handbook of) The law of the World Trade Organisation, forthcoming at OUP with Demeester, Coppens, Wouters and Van Calster.

The Foundation of Choice of Law: Choice and Equality by Dr Sagi Peari has been published by OUP recently. Please find the abstract below:

This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. The author reveals that, despite the multiplicity of titles and labels within the myriad choice of law rules and practices of the U.S., Canadian, European, Australian, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice by which the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. 

Among other things, this book provides a justification of the nature and limits of such popular principles as party autonomy, most significant relationship, and closest connection. It also discusses such topics as the actual operation of public policy doctrine in domestic courts, and the relation between the notion of international human rights and international commercial dealings, and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age and the Internet.

Please click to download the Flyer.

The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The dissent (three of the nine judges) would maintain the parental intention approach [para 110].  One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation.  Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].

The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6].  The court rendered its decision to provide guidance going forward.  The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).

The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].

The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public.  These are called “Cases in Brief”.

In 2018, the Australian Branch of the International Law Association (ILA) will be hosting the biennial ILA conference. The conference, which is being held in Sydney, Australia, from 19-24 August 2018, is a major international event that will bring together hundreds of judges, academics, practitioners and officials of governments and international organisations from all around the globe. To register please follow this link. Please note that he early bird rate is available until 31 May 2018. The draft conference programme is now available on the ILA website here.

The German branch of the ILA will hold its annual meeting on 22 June, 2018, in Frankfurt (Main). This year’s topic is „International Dispute Resolution in Times of Crisis”. The list of distinguished speakers will include the Vice-President of the European Court of Human Rights, Professor Dr. Angelika Nußberger (Strasbourg/Cologne), Professor Dr. Giesela Rühl (University of Jena), and Professor Dr. Stephan Schill (University of Amsterdam). You may find the full programme and further information here.

The ILA was founded in Brussels in 1873. Its objectives, under its Constitution, are “the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law”. The ILA has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. For further information and a welcome address from ILA chairman Lord Mance, please click here.

The European Parliament Committee on Legal Affairs will hold a public hearing on «The Hague Judgments Convention» in Brussels, on 24 April 2018, from 15.00-16.30. The hearing is aimed at bringing together Members of the European Parliament, Commission representatives, the Permanent Bureau of the Hague Conference and stakeholders with a view to discussing the ongoing negotiations on a world-wide Convention on the recognition and enforcement of judgments in civil and commercial matters.

Since the recognition and enforcement of judgments is a matter of EU exclusive competence, the Commission represents all Member States (except Denmark) on the basis of the negotiating directives adopted by the Council in 2016. A third Special Commission was held in November 2017, which focused on intellectual property matters and general and final clauses, whereas the fourth and final Special Commission Meeting will take place in May 2018. This hearing will therefore provide the opportunity to get up to speed with the results of the three meetings of the Special Commission as well as with the next steps and future stages of the project.

Announcement: http://www.europarl.europa.eu/committees/en/events-hearings.html?id=20180403CHE03681

Draft Programme: http://www.europarl.europa.eu/cmsdata/141460/juri-committee-hearing-hague-judgments-project.pdf

April 2018 JURI Study: http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604954/IPOL_STU(2018)604954_EN.pdf

On 17 May, the Centre de droit comparé, européen et international of the University of Lausanne will host a joint conference with the British Institute of International and Comparative Law on ‘The UK, Switzerland, Norway and the EU: Cross-border Business Relations after Brexit’. The flyer can be found here. The conference, organised by Professor Eva Lein, intends to provide a forum to discuss the legal uncertainties arising from Brexit with regard to cross-border commercial relations between British, EU, Norwegian and Swiss companies companies.

It will feature the following panels:

Welcome: Eva Lein (UNIL / BIICL)

Panel 1: Trade and Services
Chair: Spyros Maniatis (BIICL / Queen Mary University of London)

• Andreas Ziegler (UNIL)
• Thomas Sebastian (Monckton Chambers)
• Kaja Sandvig (DLA Piper, Oslo)
• Federico Ortino (King’s College London / Clifford Chance)

Panel 2: Company Law and Insolvencies
Chair: Adam Johnson QC (Herbert Smith Freehills)

• Stefania Bariatti (University of Milan)
• Rodrigo Rodriguez (University of Lucerne)
• John Whiteoak (Herbert Smith Freehills, London)
• Kern Alexander (University of Zurich)

Panel 3: Dispute Resolution
Chair: Andrea Bonomi (UNIL)

• Diana Wallis (former vice-President of the European Parliament / ELI)
• Trevor Hartley (London School of Economics)
• Benoît Arthur Mauron (Lalive)
• Peter Arnt Nielsen (Copenhagen Business School)
• Eva Lein (UNIL / BIICL)

University of Glasgow has announced a PhD scholarship opportunity for the project entitled “The Europeanisation of International Private Law: Implications of Brexit for Children and Families in Scotland” supervised by Professor Janeen Carruthers. The project shall commence in Oct 2018 and will provide (1) a stipend at the RCUK rate (2018-19 rate is £14,777 Full-Time); (2) 100 % tuition fee waiver; (3) access to the Research Training Support Grant. UK/EU and International applicants are eligible to apply.

For more information, please visit the university website, or follow this link:  The Europeanisation of International Private Law – Implications of Brexi….

It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterised? In the course of the German discussion, all solutions had been on the table: some have advocated to classify the issue as a part of succession law only, others have argued for characterising the issuse as belonging to the field of matrimonial property law, and a minority opinion has developed a so-called “double characterisation”, i.e accepting the spouse’s share in the estate only if both the applicable succession and matrimonial property law would countenance such a solution. In 2015, the German Federal Court of Justice (Bundesgerichtshof – BGH), ruling on former autonomous choice of law rules, had settled the issue in favour of applying the German conflicts rules on matrimonial property, mainly arguing that § 1371(1) BGB determines what is left to the estate after the gains accrued during the marriage have been equalised (BGHZ 205, 289). The Court argued that, for practical reasons, the means that the provision deploys to allocate the gains are found in succession law, but its function is to deal with the dissolution of a marriage because of the death of one of the spouses. If frictions arose between the law applicable to matrimonial property and the rules governing succession – e.g. a widow receiving nothing although the succession law and the matrimonial property regime would grant her a share if applied in isolation –, such problems would have to be solved by the technique of adaptation.

In light of the Europeanisation of private international law, however, it had become doubtful whether this approach would remain valid within the context of the Succession Regulation (Regulation (EU) No. 650/2012). A pertinent question was referred to the CJEU by the Kammergericht (Higher Regional Court Berlin). Following the conclusions by AG Szpunar, the CJEU now has decided the case in diametrical opposition to the earlier judgment of the BGH, by adopting a purely succession-oriented characterisation. The CJEU argues that “Paragraph 1371(1) of the BGB concerns not the division of assets between spouses but the issue of the rights of the surviving spouse in relation to assets already counted as part of the estate. Accordingly, that provision does not appear to have as its main purpose the allocation of assets or liquidation of the matrimonial property regime, but rather determination of the size of the share of the estate to be allocated to the surviving spouse as against the other heirs. Such a provision therefore principally concerns succession to the estate of the deceased spouse and not the matrimonial property regime. Consequently, a rule of national law such as that at issue in the main proceedings relates to the matter of succession for the purposes of Regulation No 650/2012” (para. 40). The main reason, however, is to ensure that the European Certificate of Succession remains workable in practice by giving a true and comprehensive picture of the surviving spouse’s share in the estate, no matter whether domestic law achieves this result by inheritance law alone or rather by a combination of matrimonial property and succession law (see in particular paras. 42 et seq.). It remains to be seen how much scope this approach will leave to an application of the European Matrimonial Property Regulation (Regulation (EU) No. 2016/1103), which also covers the liquidation of the matrimonial property regime as a result of the death of one of the spouses. Whereas the law applicable to matrimonial property is, in principle, stabilised at the first common habitual domicile of the spouses, the applicable succession law is changed much more easily – it suffices that the deceased spouse had acquired a new habitual residence before his or her death. Thus, an extension of the Succession Regulation to the detriment of the Matrimonial Property Regulation may disappoint legitimate expectations of the surviving spouse concerning the allocation of accrued gains. The CJEU, however, does not seem to worry too much about this aspect, which was not problematic in the case at hand (para. 41). Future cases may be more enlightening in this regard.

On Monday, 23 April 2018, the Erasmus School of Law of Erasmus University Rotterdam (Netherlands) will host a national workshop that takes place within the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, the European Enforcement Order, European Order for Payment Procedure, the European Small Claims Procedure and the Account Preservation Order. The project has the objective to create a database of national case law. The project is led by the University of Freiburg (Prof. Jan von Hein), and partners are the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw.

Four speakers will present the European procedures and share experiences on the application of the procedures in the Netherlands. The speakers are: Prof. C.H. (Remco) van Rhee (University of Maastricht), Kasper Krzeminski (Lawyer at Nauta Dutilh), Jeroen Nijenhuis (judicial officer, board member Royal Professional Organization of Judicial Officers), and Eva Calvelo Muiño (director European Consumer Centre Netherlands). The workshop and roundtable are chaired by Xandra Kramer (Erasmus University Rotterdam).

The language of the workshop is Dutch. Partcipation is free of charge, but requires registration. Further information on the program and on how to register is available here: Workshop IC2BE NL-Rotterdam

Prof. Makridou and Prof. Diamantopoulos are hosting on 23/04/2018 a seminar on the law of evidence in Spain and Greece. The event starts at 09.00 and will take place in the conference room of the Central Library of the Aristotle University of Thessaloniki.

The program of the seminar is the following:

CHAIRMAN

Prof. Konstantinos Polyzogopoulos, National and Kapodistrian University of Athens

SPEAKERS

Prof. Fernando Gascón Inchausti, Complutense University of Madrid

Prof. Enrique Vallines Garcia, Complutense University of Madrid

Prof. Kalliopi Makridou,  Aristotle University of Thessaloniki

Ass. Prof. Ioannis Delikostopoulos, National and Kapodistrian University of Athens

CONCLUSIONS

Prof. Georgios Diamantopoulos, Aristotle University of Thessaloniki

This seminar forms part of a project initiated by Prof. Makridou and Prof. Diamantopoulos back in 2014. In the course of the past 5 years, the professors have edited three volumes, published in the series ‘Greek and Foreign Civil Procedural Systems’, Sakkoulas Publications.

Vol. 1: Issues of Estoppel and Res Judicata in Ango-American and Greek Law (2014)

Vol. 2: Civil trial of first and second instance according to Swiss and Greek Law (2014)

Vol. 3: Provisional measures in Italian and Greek Law  (2016)

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

Innovating Business Courts: A European Outlook

On 10 July 2018, a seminar will be held on the establishment of international business courts in a number of Member States. It aims to discuss these initiatives, in particular the novelties in the court administration and the procedural rules, to exchange views on the possible impact on international commercial and complex litigation, and to reflect on the challenges ahead.

The seminar is organised by Erasmus School of Law (ERC project ‘Building EU Civil Justice’) of Erasmus University Rotterdam, in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Judicial Administration and Conflict Resolution (Utrecht University)

More information on the program and how to register will follow soon!

Seminar International Business Courts – 10 July 20…

Yehya Badr, Associate Professor at the Alexandria University, Egypt, published an article “A Cure From Rome for Montreal’s Illness: Article 5 of the Rome I Regulation and Filling the Void in the 1999 Montreal Convention’s Regulation of Carrier’s Liability for Personal Injury”, in (2018) 83 JOURNAL OF AIR LAW AND COMMERCE 83.  The abstract reads:

“An examination of the 1999 Montreal Convention shows that the drafters did not intend to lay down a comprehensive treaty that would organize a carrier’s liability for personal injury to passengers. They opted to achieve a certain level of uniformity through enacting a set of rules that tackled several key issues such as the grounds for a carrier’s liability, the available defenses, and the limits on the recoverable damages. Consequently, some unaddressed issues created a void in the Montreal Convention and were then left without a clear remedy. In this article, a distinction is made between two types of voids: first, the definitional void describes the lack of definition for several key terms used in the Montreal Convention, such as “accident” and “carrier.” Second, the regulatory void describes the lack of rules to address issues such as determining the effect of a passenger’s contributory negligence as a defense for liability and the right of action. This article demonstrates that national courts have resorted either to the forum’s law or the forum’s choice-of-law rules to fill the void in the Montreal Convention. As a result, international uniformity of results cannot be achieved nor is there any predictability. This article recommends the adoption of Article 5 of the Rome I Regulation as a solution to this problem. Doing so would give both parties the freedom to choose a law from a predetermined list, and fill the above mentioned voids, while providing alternative choice-of-law rules if the parties decided not to choose a law to govern their contract for air carriage.”

The full text can be downloaded here.

The last issue of the “Revue critique de droit international privé” will shortly be released.

It contains several casenotes and three articles.

The first one is authored by Gilles Cuniberti and Sara Migliorini. It discusses the issues of private international law raised by the European Account Preservation Order procedure established by Regulation (EU) no 655/2014. After presenting the scope of the Regulation, it addresses the issues of jurisdiction, choice of law, and enforcement of judgments arising under the new instrument.

The second article is authored by Gerald Goldstein. It deals with the « legal certainty exception » under Dutch law.

Born out of a deep internationalist perspective, section 9 of Book 10 of the Civil code of the Netherlands codified a new general exception to the application of a conflict rule. Under this « legal certainty exception », a court may apply a law applicable under the private international law of a foreign State involved, in contravention to the law designated by the Dutch private international law, whenever doing otherwise would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.

The legal certainty exception’s function is to avoid a serious lack of foreseeability possibly leading to a limping situation, stemming from the application of the law normally applicable under the conflict of law rule of the forum. Such a general and exceptional rule based on conflict justice aims to coordinate conflicting systems of private international law by allowing a measure of flexibility into the conflict of law resolution. Taking globalization into consideration, this rule gives a broader role to private parties. Its effect is to allow a court a discretionary power to put the conflict rule into perspective while upsetting the usual hierarchy of private international law principles. Unlike the escape clause, the legal certainty exception will give predominance to foreseeability over proximity. It will designate a law which is not necessarily the law having objectively the closest connection to the situation but the law applicable under the subjective expectations of the parties or the law whose effectivity should not be altered.

In order to limit the disturbing impact of the legal certainty exception due to the discretionary nature of its intervention, cumulative conditions are required. The parties to the relationship must have erroneously, albeit legitimately, believed that a law applied under the private international law of a foreign State involved in such relationship. In addition, to ignore this state of fact would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.

A comparative analysis between the legal certainty exception and other already known notions allows to state that while presenting some similarities with some of them (among them, the conflict of systems theory, the recognition method and a subsidiary unilateral system of conflict of laws) the legal certainty exception keeps its singularity.

The third article is authored by Christian Kohler. It discusses the new German legislation on marriage and private international law.

A full table of contents is available here.

Today, the EU Commission presented its long awaited proposal for a directive on representative actions for the protection of the collective interests of consumers (COM (2018) 184/3). The proposal and other related documents are available here. The directive shall appply to domestic and cross-border infringements (Article 2(1), 2nd sentence). With regard to the latter group of cases, the directive “is without prejudice to the Union rules on private international law, in particular rules related to court jurisdiction and applicable law” (Article 2(3)). However, Article 16 sets out some rules relevant for cross-border representative actions. It ensures the mutual recognition of the legal standing of qualified entities designated in advance in one Member State to seek representative action in another Member State. Moreover, it enables qualified entities from different Member States to act jointly within a single representative action in front of a single forum competent under relevant Union and national rules. The pertinent provision reads as follows:

“Article 16
Cross-border representative actions

1. Member States shall take the measures necessary to ensure that any qualified entity designated in advance in one Member State in accordance with Article 4(1) may apply to the courts or administrative authorities of another Member State upon the presentation of the publicly available list referred to in that Article. The courts or administrative authorities shall accept this list as proof of the legal standing of the qualified entity without prejudice to their right to examine whether the purpose of the qualified entity justifies its taking action in a specific case.

2. Member States shall ensure that where the infringement affects or is likely to affect consumers from different Member States the representative action may be brought to the competent court or administrative authority of a Member State by several qualified entities from different Member States, acting jointly or represented by a single qualified entity, for the protection of the collective interest of consumers from different Member States.

3. For the purposes of cross-border representative actions, and without prejudice to the rights granted to other entities under national legislation, the Member States shall communicate to the Commission the list of qualified entities designated in advance. Member States shall inform the Commission of the name and purpose of these qualified entities. The Commission shall make this information publicly available and keep it up to date.

4. If a Member State or the Commission raises concerns regarding the compliance by a qualified entity with the criteria laid down in Article 4(1), the Member State that designated that entity shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.”