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This post is meant to remind our readers that the Academy of European Law (ERA) will host an international conference on recent experience and current trends in international commercial litigation, with a special focus on European private international law. The event will take place in Trier (Germany), on 8-9 October 2015. While registration will still be possible after 8 September 2015, this date marks the deadline for the „early bird“ rebate. Even after this deadline, however, discounts will be available for young lawyers and academics.

This conference will bring together top experts in international commercial litigation who will report on their experiences in this field including litigation strategy and tactics. An updated conference programme is available here.

Key topics will be:

• Recent case law of the CJEU on business litigation in light of the changes brought by the recent recast of the Brussels I Regulation
• Forthcoming changes after the entry into force of the new Hague Choice of Court Convention in June 2015
• The recast of the Insolvency Regulation in summer 2015
• The revision of the Small Claims Procedure in 2015
• The Regulation establishing a European Account Preservation Order

The conference language will be English. The event is organized by Dr Angelika Fuchs, ERA, in cooperation with Professor Jan von Hein, University of Freiburg (Germany). The speakers are

• Robert Bray, Head of Unit, Secretariat, Committee on Legal Affairs, DG Internal Policies, European Parliament, Strasbourg/Brussels
• Professor Gilles Cuniberti, University of Luxembourg
• Raquel Ferreira Correia, Counsellor, Lisbon
• Emilia Fronczak, Loyens & Loeff, Luxembourg
• Sarah Garvey, Counsel and Head of KnowHow in the Litigation Department, Allen & Overy LLP, London
• Jens Haubold, Partner, Thümmel, Schütze & Partner, Stuttgart
• Professor Jan von Hein, Director of the Institute for Foreign and International Private Law, Dept. III, University of Freiburg
• Brian Hutchinson, Arbitrator, Mediator, Barrister, GBH Dispute Resolution Consultancy; Senior Lecturer, University College Dublin
• Professor Xandra Kramer, Erasmus University Rotterdam; Deputy Judge of the District Court of Rotterdam
• Alexander Layton QC, Barrister, Arbitrator, 20 Essex Street, London.

For further information and registration, please click here.

La famiglia si trasforma. Status familiari costituiti all’estero e loro riconoscimento in Italia, tra ordine pubblico ed interesse del minore, a cura di Grazia Ofelia Cesaro, Paola Lovati e Gennaro Mastrangelo, Franco Angeli Editore, 2014, pp. 144, ISBN 9788820452018, Euro 19.

[Dal sito dell’editore] Questo volume raccoglie gli interventi dell’incontro di studio intitolato “Nuove famiglie e circolazione dei nuovi status familiari: le risposte del diritto interno tra interesse del minore ed ordine pubblico”, tenutosi a Milano il 26 ottobre 2012. Esso rappresenta la prima pubblicazione dove giuristi, psicologi, magistrati, avvocati, sociologi si interrogano sul tema. Che cosa accade quando adozione del single, maternità surrogata, fecondazione eterologa, stepchild adoption, genitorialità omosessuale, adozione legittimante del single pronunciate all’estero chiedono di essere riconosciute nel diritto interno? Basterà la clausola di ordine pubblico ad impedire al minore e al suo/suoi genitori, il riconoscimento di tali diritti? È giuridicamente possibile uno status familiare scisso, cioè valevole solo nello Stato in cui è stato prodotto ma non in Italia? Quale peso annettere all’interesse del minore nelle decisioni dell’autorità giudiziaria? Questi interrogativi, nuovi per la realtà italiana, non lo sono in altri Paesi, per cui le relazioni pubblicate esaminano l’esperienza inglese, francese e statunitense per trovare possibili soluzioni.  Il volume rappresenta un’utile raccolta interdisciplinare per approfondire alcuni temi che si porranno sempre di più nella pratica giudiziaria. È infatti certo che l’internazionalizzazione degli status familiari porrà all’interprete sempre maggiori interrogativi.

Maggiori informazioni a questo indirizzo.

Konrad Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht — Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts, Mohr Siebeck, 2015, pp. 392, ISBN 9783161540240, Euro 69.

[Dal sito dell’editore] – Was macht eine Frau zur Mutter? Moderne Leihmutterschaft erschüttert grundlegend unser Verständnis von Familie und Elternschaft: Frauen tragen für Andere Kinder aus, die meist genetisch nicht von den Leihmüttern abstammen. In Deutschland ist dieses Verfahren verboten. Wie geht das Recht jedoch damit um, wenn Paare ins Ausland reisen, um dort durch Leihmutterschaft ihren Kinderwunsch zu erfüllen? Konrad Duden analysiert am Beispiel von sechs Rechtsordnungen, in denen Leihmutterschaft zulässig ist, wer aus Sicht des deutschen Rechts die Eltern solcher Kinder sind. Dabei stellt er fest, dass den Kindern vielfach eine Abstammung von den Wunscheltern verwehrt bleibt. Diesen Befund kontrastiert er mit den Grund- und Menschenrechten der Beteiligten. Insbesondere die Rechte des Kindes fordern, dass das Kind grundsätzlich in eine rechtliche Familie mit den Wunscheltern integriert werden kann.

Ulteriori informazioni a questo indirizzo.

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

Christoph Benicke, Die Anknüpfung der Adoption durch Lebenspartner in Art. 22 Abs. 1 S. 3 EGBGB
In Germany, step child adoption by the partner of a same sex civil union (registered partnership) has been legal since 2004, but was restricted to the other partner’s biological child. 2014, following a landmark ruling by the German Constitutional Court the German Parliament has enacted legislation that rescinded this restriction and allowed thereby partners of registered same-sex couples to legally adopt the other partner’s adoptive child. Not mandated by the Constitutional Court’s ruling the legislator stopped short of totally putting same sex registered partnerships on equal footing with traditional marriages. The joint adoption by both partners is still reserved to the spouses of a heterosexual marriage.
On the occasion of this new legislation, a special choice of law rule for the adoption by same sex partners has been enacted. The general choice of law rule (Art. 22 par. 1 s. 2 EGBGB) calls for the national law of the adoptive parent. In the case of the adoption by one or both spouses of a heterosexual marriage the law applicable to the general effects of the marriage (Art. 14 EGBGB) is to be applied. This holds true for the joint adoption by both spouses or for the single (step parent) adoption by only one spouse. The new rule for same sex partners (Art. 22 par. 1 s. 3 EGBGB) follows the example of the rule for married couples, in that it calls for the application of the law that governs the general effects of the registered partnership, i.e. the law of the registering state (Art. 17b par. 1 EGBGB). However, the new rule for same sex partners limits itself to the case of the adoption by only one partner, leaving unregulated the choice of law question of a joint adoption by both partners. The single and only reason for this limitation is the ban on joint adoption by same sex partners in German internal adoption law, not taking into account, that the laws of other countries allow the joint adoption by same sex partners. As there is no valid reason for this limitation in regard to the choice of law question this same rule must be extended to cover the joint application for the adoption by both partners. The general choice of law rule would lead to a quite preposterous result as it would call for the joint application of the national laws of both partners, whereas in the case of the adoption by only one partner the law that governs the effects the same sex partnership would apply.
The new legislation also casts new light on the discussion of the ramifications of Art. 17b par. 4 EGBGB. This rule limits the effects of a same sex partnership that was registered in another country and therefore is governed by this other country’s laws. The legal effects cannot exceed the effects of a registered same sex partnership under German internal law. Under the previous law the majority opinion was that Art. 17b par. 4 EGBGB bans same sex partners from adopting jointly in Germany even if the joint adoption was legal under the applicable foreign adoption law. In granting the unrestricted step child adoption German law effectively allows partners to adopt a child jointly, just in two immediately consecutive proceedings. Therefore, there are no real differences left in regard to the legal effects of a registered partnership under a foreign law that allows the simultaneous joint adoption by same sex partners in one and only proceeding.

Christoph Thole, The differentiation between Brussels I and EIR in annex proceedings and the relation to art. 31 CMR
On the occasion of the ECJ ruling (4.9.2014 – C-157/13), the author discusses the precedence of special conventions (CMR) according to art. 71 (1) Brussels I-reg. and the question of the criteria necessary for the application of art. 3 EIR. With respect to art. 3 EIR, the ECJ rightly concludes that an action for the payment of a debt based on the provision of carriage services taken by the insolvency administrator of an insolvent undertaking in the course of insolvency proceedings is covered not by the EIR, but is a civil matter within the Brussels I-reg. However, once again, the Court has failed to further elaborate on the criteria necessary for the classification of an action as an insolvency-related action within the meaning of art. 3 EIR and art. 1 para. 2 lit. b Brussels I-reg.
With respect to art. 71 Brussels I-reg., it is a step forward that, in contrast to earlier verdicts, the ECJ itself decided upon the compatibility of the convention with the principles of EU law, instead of referring the matter to state courts. It would have been even more conclusive to rely on the wording of Art. 71 (1) Brussels I-reg. and omit the unwritten necessity of compatibility with EU Law entirely.

Burkhard Hess/Katharina Raffelsieper, Debtor protection within Regulation 1896/2006: Current gaps in European procedural law
Regulation 1896/2006 does not provide for effective debtor protection in cases when a European Order for Payment was not properly served on the debtor. As a result of the unilateral nature of the procedure for issuing the order, the order will be declared enforceable if the defendant does not challenge it within a period of 30 days. However, the service of the payment order shall safeguard the right to a defense. When the defendant has never been informed about the ongoing procedure, he should be able to easily contest the Order for Payment even after it has been declared enforceable. Yet, the text of the Regulation does not provide for a remedy in this situation. In a reference for a preliminary ruling, the Local Court Berlin-Wedding asked the European Court of Justice which remedy should apply. The referring court suggested an application by analogy of the review proceedings provided for in Article 20 of Regulation 1896/2006 in order to ensure an effective right to a defense. Regrettably, the CJEU did not endorse this solution. It declared national procedural law applicable in accordance with Article 26 of the Regulation. As a consequence, parties are sent to the fragmented remedies of national procedural laws. As the efficiency and uniform application of Regulation 1896/2006 is no longer guaranteed, the European lawmaker is called to remedy the insufficient situation. This article addresses the final decision of the Local Court which implemented the CJEU’s judgment.

Peter Huber, Investor Protection: Lugano Convention and questions of international insolvency law
The article discusses a recent decision of the German Bundesgerichtshof which primarily deals with matters of international jurisdiction in tort claims under Article 5 No. 3 of the Lugano Convention. In doing so, the author also analyses to what extent the decision is in line with the more recent judgment of the ECJ in Kolassa v Barclays Bank. A second issue of the decision is how provisions of foreign insolvency law which modify a creditor’s claim against a (not insolvent) co-debtor of the insolvent party should be characterised under domestic German private international law.

Christoph Thole, Porsche versus Hedgefonds: The requirements for lis pendens under Art. 32 reg. 1215/2012 (Art. 30 reg. 44/2001)
Porsche SE, which is currently trying to fend off several actions for damages connected to the failed takeover of Volkswagen, has reached a partial success before the OLG Stuttgart. The OLG has ruled that the negative declaratory action against an institutional investor in Germany takes precedence over the action for performance filed in London. The proceedings clearly demonstrate how fiercely disputes concerning the place of jurisdiction in capital market law are fought. Specifically, the court needed to judge upon the necessary requirements for lodging the claim with the court under Art. 30 of the Brussels I-reg. (Art. 32 Reg. No. 1215/2012). The decision as well as most of the reasoning is convincing.

Peter Mankowski, Lack of reciprocity for the recognition and enforcement of judgments between Liechtenstein and Germany
Liechtenstein fashions a system of recognition and enforcement of foreign judgments with a strict and formal requirement of reciprocity in the Austrian tradition. In particular, judgments from Germany are not recognised in Liechtenstein. The retaliative price Liechtenstein has to pay is that judgments from Liechtenstein are not recognised in Germany, either, for lack of reciprocity. Methodologically, German courts are idealiter required to research whether reciprocity is guaranteed in a foreign country in relation to Germany. The popular lists in the leading German commentaries should only serve as a starting point.

Lars Klöhn/Philip Schwarz, The residual company’s applicable law
The “theory of the residual company (Restgesellschaft)” deals with legal problems that may arise in the context of winding-up companies doing business in at least two countries. In Germany, the theory applies in particular to English private companies limited by shares (“Limited”) with assets in Germany. If a Limited is dissolved in its home country, the residual company will come into existence and be considered as the owner of the company’s “German” assets. The discussion in the literature as well as recent case law by Higher Regional Courts (Oberlandesgerichte) has focused on the question which law applies to the residual company. This paper analyzes the newest judgement on this issue by the Higher Regional Court of Hamm, which states that German law applies. The authors agree with this result while pointing out that this conclusion will be reached regardless of whether one follows the theory of domicile (Sitztheorie) or the theory of establishment (Gründungstheorie). Furthermore, German law applies irrespective of whether the company is still doing business or has already entered into liquidation.

Piotr Machnikowski/Martin Margonski, Rechtskrafterstreckung auf Vorfragen im internationalen Zuständigkeitsrecht: Anerkennung von punitive damages- und actual damages-Urteilen in Polen
The case note concerns the judgment of the Polish Supreme Court of October 11, 2013 on the enforceability of US-American punitive damages and judgments on actual damages in Poland. The enforceability has been rejected in case of punitive damages which, as a rule, are contrary to Polish public policy as such. Polish civil law is governed by the principles of compensation and restitution of the damage. The damage should be repaired to the condition that would have existed had the wrong not occurred. The injured party may not be enriched as a result of the damages awarded. The compensation law in Poland does recognize some exceptions to that rule which allow to grant compensation not closely based on the value of the restored damage. Such exceptions are, however, justified under the constitutional proportionality principle. Punitive damages do not meet such requirements to the extend they peruse penal objectives. They are permissible only to the extent they perform a compensatory function and are linked to the damage suffered. In case of actual damages, such conflict with the Polish public order does not occur by nature of the legal instrument. Yet, the said proportionality principle may lead to only a partial enforceability of a US-American actual damages judgment. The crucial factor here is how closely the factual setting of the case is connected to Poland. The judgment in question addresses the general problem of partial enforceability of foreign judgments, which has been found possible in case of divisible obligations. Despite some critique on detailed aspects of the findings, the case note positively appraises the judgment.

Bernhard König, Austrian money judgments which do not finally determine the amount of payment
Judgments given in a Member State which are enforceable in that State are enforceable in other Member States. Difficulties could arise if a money judgment was given in a Member State which does not require a final determination of the amount of the payment in the judgment itself and has to be enforced in a Member State which national law requires the final determination of the amount of payment already in the judgment. This paper offers a glimpse to the question if and to what extent other Member States will have to deal with Austrian judgments which have not finally determined the amount of the payment.

Miguel Gómez Jene/Chris Thomale, Arbitrator liability in International Arbitration
Recent decisions by Spanish courts raise questions upon the conditions as well as the extent of arbitrator liability. Authors suggest a distinction between qualified adjucative and simple managerial tasks: It is only when acting as a quasi-adjudicative agent that arbitrators should be essentially exempt from personal liability. Conversely, as far as an arbitrator’s conduct of an arbitration procedure is concerned, he should assume general tort liability for negligence.

Jürgen Samtleben, The New Panamanian Code of Private International Law – A Kaleidoscope of Conflict of Laws
Panama is known as an important banking center and as the registered office of many internationally active corporations. Therefore, international relations between private subjects need specific regulation. Up to now, the private international law of Panama found its basis in individual provisions of the Civil Code, the Family Code and some special laws. These provisions were replaced by Law 7 of 2014, which contains in 184 articles a comprehensive regulation of nearly all conflict-of-law topics. The following article gives an overview of the new Law. As a result, it must be stated that the Law contains many flaws, due to insufficient coordination between the different parts and a lack of careful editing of the individual articles. In Panama, as well, the law has been criticized and there is a call for its thorough reform.

Asian Conflict of Laws: East and South East Asia, a cura di Alejandro Carballo Leyda, Wolters Kluwer, 2015, pp. 336,  ISBN: 9789041147561, Euro 160.

[Dal sito dell’editore] An essential resource for both practitioners and academics, Asian Conflict of Laws: East and South East Asia, provides a comprehensive overview of the various approaches to private international law among the crucially important trade jurisdictions of East and South East Asia. Gain expert guidance from local specialists who deliver thorough commentary and analysis on fourteen jurisdictions of the People’s Republic of China, Hong Kong, Indonesia, Japan, the Republic of Korea, Macau, Malaysia, Mongolia, The Philippines, Singapore, Taiwan, Thailand, Timor-Leste, and Vietnam. With a lack of legal harmonization between these countries, this useful book will be an essential resource for both practitioners and academics operating in this region. The authors describe, in a clear and logically structured way, practice and procedure regarding: codification of private international law and relevance of case law; jurisdiction of local courts in foreign-related cases (including choice of court and arbitration clauses); applicable law; international civil procedure; recognition and enforcement of foreign (judicial and arbitral) decisions.

L’indice del volume è reperibile qui. Ulteriori informazioni sono disponibili a questo indirizzo.

Paul Beaumont, Professor of European Union and Private International Law and Director of the Centre for Private International Law, University of Aberdeen (Scotland/UK), and Jayne Holliday, Research Assistant and Secretary of this Centre, have published an insightful and carefully researched new working paper on “Recent Developments on the Meaning of ‘Habitual Residence’ in Alleged Child Abduction Cases” in the series of the Aberdeen Centre for PIL (Working Paper No. 2015/3, the full content is available here). The highly recommended article is based on an overview of the recent developments within European and International Family Law that was presented by Professor Beaumont at the conference on “Private International Law in the Jurisprudence of European Courts – Family at Focus” held in Osijek, Croatia, June 2014. Drawing from that presentation, the working paper focuses on the recent developments on the meaning of habitual residence in child abduction cases from the UK Supreme Court and the Court of Justice of the European Union (CJEU). In particular, the authors analyze the move by the UK Supreme Court towards a more uniform definition of habitual residence in line with the jurisprudence of the CJEU under the Brussels IIbis Regulation.

The authors summarize their findings as follows:

“Over the past 30 years the concept of habitual residence of the child in the UK has developed from one which put weight on parental intention to a mixed model, which takes a more child centric and fact based approach. By following the jurisprudence of the CJEU, the UK Supreme Court has made a genuine and conscious attempt to provide a uniform interpretation of the 1980 Abduction Convention. This will hopefully have the effect of creating a more uniform approach to the definition of habitual residence amongst all Contracting States to the Hague Abduction Convention. […] If enough weight is given to parental intention of the custodial parent(s) of newborns then physical presence is not required to establish habitual residence. This is an easier solution to arrive at if the myth that habitual residence is a pure question of fact is abandoned. Whilst a mixed question of fact and law is the best way to analyse the ‘habitual residence’ of the young child, it is not appropriate to introduce into the equation a suggestion that somehow habitual residence cannot change when the custodial parent lawfully removes a child to another country just because that decision was still subject to appeal in that country even though the appeal did not suspend the custodial parent’s right to take the child out of the country lawfully. Such an appeal should not prevent the loss of the child’s habitual residence in the country where the appeal is made and should not impact on the ‘stability’ of the child’s residence in the new jurisdiction to prevent habitual residence being established there within a few months of the residence beginning.”

Matthias Weller is Professor for Civil Law, Civil Procedure and Private International Law at the EBS University for Economics and Law Wiesbaden and Director of the Research Center for Transnational Commercial Dispute Resolution (www.ebs.edu/tcdr) of the EBS Law School.

Mutual trust amongst the Member States of the European Union in other legal systems is a prerequisite for the expansion of the free movement of judgments and judicial titles within the European Judicial Area. To justify such mutual trust amongst the European Member States requires, inter alia, the definition of common minimum standards in the various judicial systems.

A joint project between the law faculties of the University of Regensburg (Prof. Dr. Christoph Althammer) and the EBS Law School in Wiesbaden (Prof. Dr. Matthias Weller, Mag.rer.publ.) has set itself the goal to search for and explore further such minimum standards in the judicial systems within the European Judicial Area. After the first conference in Wiesbaden in 2014 (see conference report earlier on this blog here), where the discussion has been initiated from a broader perspective, the project will be continued with the upcoming two-days-conference in Regensburg (conference language: German) that is dedicated to a central issue within this field: European minimum standards for judicial bodies.

The focus will be on three main requirements (independence, efficiency, specialization) which will be presented by experts from both academia and legal practice. These topics will be complemented by a legal comparative analysis with regard to the French, Greek and Italian legal system before the discussion will conclude with a final synthesis.

We would like to cordially invite you to join the discussion! For registration and the conference flyer see here.

On 23 June 2015, the European Parliament and the Council of the European Union reached a compromise concerning the amendment of Regulation N0 861/2007, establishing the European Small Claims Procedure.

The text of the amending Regulation, as contemplated by the compromise, may be found here. The actual legislative measure will be formally adopted in the coming months.

Under the reformed Regulation, the European Small Claims Procedure will apply to “civil and commercial matters in cross-border cases … where the value of a claim does not exceed EUR 5000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements”. The current ceiling is 2000.

In five years’ time the Commission shall present a report on the operation of the Regulation, including an evaluation as to whether a further increase of the threshold above. On the same occasion, the Commission will look into the possibility of extending the scope of the European Small Claims Procedure so as to “facilitate access to justice for employees in cross-border employment disputes with their employer, in particular to claims for remuneration”.

The amended Regulation, though less innovative than the Commission had originally proposed, will have an impact on a number of practical issues raised by the application of the existing rules, including issues relating to the court fees charged to claimants (fees will have to be proportional to the value of the claim, but there will be no fixed cap) and the payment of such fees (Member States will be under an obligation to accept electronic payments).

Videoconferencing and, more generally, the use of remote communications technology, will be encouraged, although the Member States will not be under a legal duty to make the relevant equipment available to courts and litigants.

It has not yet been mentioned on this blog that Volumes 10 and 11 of the Munich Commentary on the German Civil Code (Münchener Kommentar zum Bürgerlichen Gesetzbuch), are now available in their sixth edition (2015). A standard German language treatise on both German and European private international law the new edition contains a detailed article-by article analysis of the Rome I, II and III Regulations (by Abbo Junker, Munich; Dieter Martiny, Hamburg/Frankfurt an der Oder); Ulrich Spellenberg, Bayreuth; Peter Winkler von Mohrenfels, Rostock), the Hague Protocol on Maintenance (Kurt Siehr, Hamburg/Zurich), the European Succession Regulation (Anatol Dutta, Regensburg), and the Hague Conventions on the Protection of Children and Adults (by Kurt Siehr, Hamburg/Zurich; Volker Lipp, Göttingen).

The sixth edition is the first edition that has been edited by our co-editor Jan von Hein (Freiburg/Germany). Jan is the successor to Hans-Jürgen Sonnenberger (Munich) and has contributed to the commentary himself with a completely new section on the general principles of European and German private international law.

Further information is available on the publisher’s website.

In Goldman Sachs v Novao Banco SA, the High Court first of all had to consider the scope of the Brussels I Regulation on the issue of ‘civil and commercial’.  This issue came up following the restructuring of a Portuguese Bank and the role of the Portuguese Central Bank, under its statutory powers, in the transfer of liabilities to a Bridge Bank, ‘Novo Banco’. [For the facts of the case see the judgment itself and see also Christopher Bates’ review, which first alerted me to the case. Mr Bates also reviews the issue of mutual recognition under the Bank Recovery Directive].

Hamblen J (soon to move to the Court of Appeal) in my view justifiably rejected Novo Banco’s arguments that the claim was not civil and commercial, given the statutory intervention of the Central Bank. With reference to the traditional line-up of CJEU precedent (see most recently Fahnenbrock, absent from the High court’s judgment; and Sapir, which does feature heavily) he held that the nature of the claim, in spite of the factual intervention of the Central Bank, is one in debt, which is a claim based on private law rights conferred by the relevant Facility Agreement and a civil and commercial matter. A novation of the Facility Agreement would not change the nature of that claim; nor does a statutory transfer.

Having decided that the claim falls under the Regulation, the High Court subsequently had to decide whether Novo Banco was subject to the choice of court, in favour of the English court, part of the Facilities Agreement. As this is a transfer of claims and not a contractual chain, Refcomp does not apply (Hamblen J did not refer to it). The matter needs to be decided by the lex causae, here the lex contractus: English law. Upon consideration of the various arguments, the High Court held that the choice of court clause had so been transferred together with the original claims.

Finally, the Court rejected a stay on ‘case management’ grounds (see Jong and Plaza for earlier applications).

The case shows how some of the core considerations of Brussels I can create a lot of argument, indeed.

Geert.

 

Mark Edwin Burge, Associate Professor of Law, Texas A&M University School of Law, has published a highly interesting article on the relationship between party autonomy and legal culture, providing new insights on the success (or failure) of legal transplants in choice of law: “Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code”, 6 William & Mary Business Law Review 357 (2015).

The abstract reads as follows:

“The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This Article contends that this political failure within the simultaneous overall success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that ‘no one is above the law’ and the related ideal of maintaining ‘a government of laws, and not of men.’ Proposed section 1-301 transgressed those ideals by taking something labeled as ‘law’ and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory.”

The full article is available here.

The Court of Pécs, in Hungary, has recently submitted several questions to the ECJ concerning the interpretation of Regulation No 593/2008 on the law applicable to contractual obligations and Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, respectively the Rome I and Brussels I Regulations (case C-222/15, Hőszig Kft. v Alstom Power Thermal Services).

The requests concerning the Rome I Regulation relate to the fact that the contract that forms the basis of the main proceedings features a choice of law clause to which one of the parties did not consent.

The relevant provision, here, as indicated in Article 3(5) of the Rome I Regulation, is Article 10.

Article 10(1) provides that “the existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this regulation if the contract or term were valid”. However, under Article 10(2), “a party, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1”.

The first question raised by the referring court concerns the meaning of the expression “if it appears from the circumstances”. In particular, the court seeks to determine whether the assessment contemplated by Article 10(2) “must cover the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”. Furthermore, referring to the case where the relevant circumstances actually demonstrate that consent to the law applicable pursuant to paragraph 1 would not be a reasonable effect of the behavior of the party, the request seeks to determine whether the validity of the contractual clause at hand must then be determined “pursuant to the law of the country of habitual residence of the party who made the reference”.

Secondly, the Hungarian court wonders whether the court has discretion in evaluating if, under the circumstances that must be taken into account, consent to the law applicable pursuant to Article 10(1) was not a reasonable effect of the party’s behaviour.

The third question posed by the court is whether, once a party makes reference to the law of the country in which he has his habitual residence in order to establish that he did not consent, the court must consider this law in the sense that, by virtue of it, and because of the circumstances mentioned, “the consent of that party to the law chosen in the contract was not reasonable conduct”. If this is the case, the court also asks whether the examination of the circumstances carried out in order to determine if there are reasonable grounds to believe that consent was not given “covers the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”.

Finally, the court raises a question concerning Article 23(1) of the Brussels I Regulation, now corresponding to Article 25(1) of Regulation No 1215/2012 (Brussels Ia). Under this provision, the parties may agree to confer jurisdiction on a court of a Member State to settle any disputes between them, as long as these concern a particular legal relationship. Jurisdiction shall lie with the chosen court unless the agreement is null and void as to its substantive validity under the law of the Member State of the designated court. The choice of court agreement must meet the formal requirements set forth in the same provision.

In this connection, the request is meant to clarify whether the designation of the court must be specific or, if it is sufficient that the wish or intention of the parties can be deduced unequivocally from the wording, since Recital 14 of the Brussels I Regulation (now Recital 19 of the Brussels Ia Regulation) provides that party autonomy should be respected, subject to the exclusive grounds of jurisdiction, and to the limits stated in the field of protected contracts, where only limited autonomy is allowed.

In particular, having regard to this recital, the court asks whether “a clause conferring jurisdiction, included in the standard contract terms of one of the parties”, under which they stipulate that their disputes concerning validity, performance or termination of the order “are to be subject to the exclusive and final jurisdiction of the courts of a specific Member State”, namely, the court of Paris, could be considered “sufficiently precise, given that the wish or intention of the parties in relation to the designated Member State can be deduced unequivocally from its wording”.

Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. (Harvard), Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, has published a revised and updated version of the widely read and well-received lectures given by the author during the 2012 summer courses of the Hague Academy of International Law (on the first edition, see the post by Gilles Cuniberti here). This superbly written and well-researched book is a must-read for anyone interested in the paradigm shifts that private international law has undergone in recent decades. The abstract provided by the publisher reads as follows:

“This book endeavours to interpret the development of private international law in light of social change. Since the end of World War II the socio-economic reality of international relations has been characterised by a progressive move from closed to open societies. The dominant feature of our time is the opening of borders for individuals, goods, services, capital and data. It is reflected in the growing importance of ex ante planning – as compared with ex post adjudication – of cross-border relations between individuals and companies. What has ensued is a shift in the forces that shape international relations from states to private actors. The book focuses on various forms of private ordering for economic and societal relations, and its increasing significance, while also analysing the role of the remaining regulatory powers of the states involved. These changes stand out more distinctly by virtue of the comparative treatment of the law and the long-term perspective employed by the author.”

Further information is available on the publisher’s website here.

The Society of Trust and Estate Practitioners (STEP), in cooperation with the Swiss Association of Trust Companies (commonly abbreviated as SATC, not to be confused with an American TV sitcom), is organising an international conference in Lausanne (Switzerland) on recent experience and current trends under the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985. The event will take place on 3 November 2015; the conference language will be English.

According to the flyer, the conference “will consider how in thirty years since the conclusion of the Hague Trust Convention the trust has become more widely accepted and trust service providers have greater opportunities, in many countries, including Switzerland. The speakers will demonstrate how the trust is playing a full and positive role in the world of wealth management and fiduciary services in Switzerland, as well as cover recent international trust law developments and jurisprudence. The ambitious program features distinguished speakers from the judiciary, academia, the Swiss government, regulatory and the financial services world and promises to be an extraordinary conference.”

The full programme and details on registration are available here.

On 18 August 2015, the German Federal Supreme Court referred the following questions relating to the interpretation of Article 5 No. 1 of the Brussels I Regulation to the CJEU (my translation):

1. Must Art. 5 No. 1 lit. a) of the Brussels I Regulation be interpreted as covering a claim for compensation under Art. 7 of the EU Air Passenger Regulation against an airline that is not the contracting partner of the passenger but operates the flight by way of a codeshare agreement with the passenger’s contracting partner?

2. If Art. 5 No. 1 Brussels I Regulation applies: In case of a flight connection consisting of several flights without any meaningful stay at the connecting airports, is the place of departure of the first flight the place of performance within the meaning of Art. 5 No. 1 lit. b) Brussels I Regulation, if the flights are operated by different airlines by way of a codeshare agreement and if the claim for compensation is directed against the airline that operates the – severely delayed – second flight?

The facts of the underlying case are straightforward: The claimant booked a flight with Air France from Stuttgart to Helsinki via Paris. The flight from Paris to Helsinki was operated by Finnair by way of a codeshare agreement with Air France. The flight from Paris to Helsinki was delayed by three hours and twenty minutes. Therefore, the claimant sought compensation from Finnair under the EU Air Passenger Rights Regulation – and brought an action against Finnair in Stuttgart. The Court of First Instance (Amtsgericht) and the Regional Court (Landgericht) both rejected the claim for lack of jurisdiction. The Federal Supreme Court (Bundesgerichtshof), in contrast, wasn’t so sure, and, therefore, referred the above questions to the CJEU.

The press release of the Federal Supreme Court is available here (in German).

On 17 August 2015 the European Succession Regulation has entered into force. It provides for uniform rules on the applicable law as well as recognition and enforcement of decisions in matters of succession. It also creates a European Certificate of Succession that enables person to prove his or her status and rights as heir or his or her powers as administrator of the estate or executor of the will without further formalities.

More information is available on the European Commission’s website.

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).

The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

By Polina Pavlova, research fellow at the MPI Luxembourg.

July, 21st 2015 has marked another important step in the private enforcement of competition law in Europe. Only two months after the long awaited preliminary ruling in the case CDC Hydrogen Peroxide (C-352/13) was delivered on May, 21st, the Amsterdam Court of Appeal seems to be the first one to apply the new ECJ case law on jurisdiction in cartel damage cases. Its judgment (accessible here in Dutch and German) dealt with compensation claims against members of the sodium chlorate cartel and applied the recently established ECJ principles even before the referring court itself (the Dortmund District Court) could render a judgment on its jurisdiction.

Background of the case is the bundled enforcement of the claims of damaged customers in the aftermath of the Decision of the EU Commission from June, 11th 2008 fining a number of undertakings for their participation in a sodium chlorate cartel operating EEA wide. Following this decision, Cartel Damage Claims, a special purpose vehicle based in Brussels, started buying off claims of the cartel victims and filed a suit against several cartel members before the District Court of Amsterdam. The latter accepted jurisdiction with a judgment from June, 4th 2014: a judgment which was subject to scrutiny and eventually confirmed by the Amsterdam Court of Appeal.

The application in the appeal proceedings questioned the jurisdiction of the Dutch courts over a cartel member seated in Finland. The Amsterdam judges confirmed the decision of the lower court according to which, since one of the co-defendants in the first instance proceedings was seated in the Netherlands, jurisdiction can be based on ex-Article 6 (1) of the Brussels I Regulation. Transposing the reasoning of the ECJ in CDC Hydrogen Peroxide – issued in a parallel scenario – to the proceedings at hand, the Court of Appeal considered the EU jurisdictional rule on joint defendants applicable. The close connection between the claims in the sense of ex-Article 6 (1) and in particular the same situation of fact and law – a requirement well established in ECJ case law – was deemed fulfilled: Following CDC Hydrogen Peroxide, the national appellate court decided that the commitment of a continuous competition law infringement sanctioned by the Commission’s Decision was sufficient to create an identical factual and legal background of the cartel damage claims. In addition, the court clarified that a company which has been held responsible for the cartel by the Commission can serve as an anchor defendant for the purposes of ex-Article 6 (1) even where the latter is a parent company of a cartel member and has not directly participated in the infringement.

Finally, the Amsterdam Court of Appeal (upholding the first instance decision) confirmed that the standard jurisdiction and arbitration clauses contained in the supply agreements between the cartel members and their customers do not apply to cartel damage claims. As far as the evoked jurisdiction agreements were concerned, the appellate court applied the reasoning of the ECJ in CDC Hydrogen Peroxide relating to the interpretation ex-Article 23 (para 70 f.). The disputes were qualified as deriving from a competition law infringement previously unknown to the customers and not from the multiple contractual relationships between suppliers and customers as such. They could thus not be covered by the standard wording of a jurisdiction clause regulating the contractual relation of the parties. Regarding the arbitration agreements, the court saw no reason to deviate from the aforementioned interpretation.

The appeal of the Finish cartel member was thus dismissed.

It is interesting to note that in this judgment the national Court of Appeal merely confirms what the Amsterdam District Court had already decided in 2014, long before the ECJ rendered its CDC Hydrogen Peroxide ruling. Even though the lower court did not await the judgment of the ECJ, its result seems to fall completely in line with the now EU-wide binding principles formulated by the Luxembourg judges. This demonstrates that the ECJ case law now simply prescribes what private enforcement friendly jurisdictions were doing anyway.

What is perhaps more intriguing, is to observe where the national court went even one step further than the ECJ in completely transposing the considerations on the material scope of the choice-of-court clauses to the other type of dispute resolution clauses at issue, i.e. the arbitration agreements. This was motivated by the sole consideration that there are no reasons to judge differently in this regard. While this might be a welcome interpretation, the issue of the applicability and interpretation of arbitration clauses was left untouched by the ECJ ruling (see para 58, particularly evident in comparison to the Advocate General’s opinion in the CDC Hydrogen Peroxide proceedings which dealt extensively with the issue, see there at para 118 ff.). Nevertheless, the equal treatment of the two types of (standard) dispute resolution clauses as regarding their scope seems to be common before Member State courts. This feature might prove to broaden the actual effect of the CDC Hydrogen Peroxide case law beyond its explicit scope (see e.g. the judgment of the District Court of Helsinki from of the July, 4th 2013, also concerning the Hydrogen Peroxide cartel). It remains to be seen how other jurisdictions will see the application of arbitration clauses in cartel damage cases.

The mentioned proceedings are only instances of a much broader landscape of private enforcement of cartel damage claims in the EU conducted to a great extent by special vehicles such as CDC. It seems that the Dutch jurisprudence might be, once again, setting an example on how international jurisdiction in competition law damage cases is to be dealt with by member state courts.

 

 

 

This post has been written by Ester di Napoli.

On 16 July 2015, the European Court of Justice (ECJ) rendered its judgment in the case of A v. B (C-184/14), clarifying the interpretation of Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).

More specifically, the ruling regarded the interpretation of Article 3 of the Regulation. This provides, inter alia, that jurisdiction in matters of maintenance lies with “(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”, or with “(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”.

The dispute in the main proceedings concerned the legal separation of two Italians and the custody of their children. These proceedings had been brought by A (the husband) against B (the wife) before the District Court of Milan.

The Court of Milan asserted its jurisdiction in respect of legal separation relying on Article 3(1)(b) of Regulation No 2201/2003 (Brussels IIa), but held that, pursuant to Article 8(1) of that Regulation, it lacked jurisdiction over parental responsibility, as the children were, at the material time, habitually resident in the UK. The Court of Milan further held that, according to Article 3(c) and (d) of the Maintenance Regulation, it had jurisdiction to decide on the issue of maintenance for the benefit of the wife, but not to decide on maintenance for the benefit of the children, since the latter request was not ancillary to proceedings over personal status, but to proceedings concerning parental responsibility.

The case eventually reached the Italian Supreme Court, which decided to request the ECJ for a preliminary ruling. The Supreme Court asked whether, in circumstances such as those described above, a maintenance request pertaining to the child may be ruled on both by the court that has jurisdiction over legal separation or divorce, as a matter ancillary to the proceedings concerning the status of a person, within the meaning of Article 3(c) of that Regulation, and by the court that has jurisdiction to entertain the proceedings concerning parental responsibility, as a matter ancillary to those proceedings, within the meaning of Article 3(d) of that Regulation; or whether a decision on a similar matter can only be taken by the latter court.

Put otherwise, the issue was whether the heads of jurisdiction set out in Article 3(c) and (d) of the Maintenance Regulation must be understood to be mutually exclusive, or whether the conjunction “or” in the provision implies that the courts that have jurisdiction over legal separation and parental responsibility may be both validly seised of an application relating to maintenance in respect of children.

In its judgment, the ECJ begins by observing that the scope of the concept of “ancillary matter” cannot be left to the discretion of the courts of each Member State according to their national law. The meaning of this expression should rather be determined by reference to the wording of the relevant provisions, their context and goals.

The wording of Article 3(c) and (d) indicates that a distinction should be made between proceedings concerning the status of a person and proceedings concerning parental responsibility. In the face of this wording, it cannot be unequivocally established “whether the alternative nature of those criteria means that the applications relating to child maintenance are ancillary only to one set of proceedings concerning parental responsibility, or whether those applications may be deemed ancillary also to proceedings concerning the status of a person”.

As regards the context of the pertinent provisions, the ECJ notes that the above distinction echoes the distinction made by the Brussels IIa Regulation between disputes concerning divorce, legal separation and marriage annulment, on the one hand, and disputes regarding the attribution, exercise, delegation, and restriction or termination of parental responsibility, on the other. The ECJ further notes in this connection, based on Recital 12 of the preamble of the latter Regulation, that the rules on jurisdiction relating to parental responsibility underlie a concern for the best interests of the child, and adds that “an application relating to maintenance in respect of minor children is … intrinsically linked to proceedings concerning matters of parental responsibility”.

The ECJ concludes that “it is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3(c) and (d) of Regulation No 4/2009, the best interest of the child”, and that the implementation of such Regulation “must occur in accordance to Article 24(2) of the Charter of Fundamental Rights of the European Union”, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Finally, as regards the goals of the provisions at stake, the Court considers that the main objective of the Maintenance Regulation is to ensure, in this field, the proper administration of justice within the EU. This implies that the court to which jurisdiction is conferred to decide on parental responsibility should be the court that finds itself “in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either jointly or sole) ordered, (ii) access rights and the duration of those rights and (iii) other factual elements relating to the exercise of parental responsibility brought before it”.

In light of the above, the ECJ concludes that, when the court of a Member State is seised of proceedings concerning legal separation or divorce between the parents of a minor child, and the court of another Member State is seised of proceedings involving matters of parental responsibility over the same child, Article 3(c) and (d) of Regulation No 4/2009 must be interpreted as meaning that “an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, with the meaning of Article 3(d) of that Regulation”.