Conflictoflaws

The University of Antwerp is seeking a PhD candidate for their research group “Personal Rights and Property Rights”. Although you might not guess so at first sight, Private International Law is part of this research group, which focuses on private law and its international aspects.

Candidates should submit a research proposal, which should fit into the research of the group (see https://www.uantwerpen.be/en/research-groups/personal-rights-and-property-rights/). The deadline is 30 september 2018.

The successful candidate will be funded for a four-year period, from 1 February 2019 to 31 January 2021.

For more information and the application procedure, see https://www.uantwerpen.be/en/jobs/vacancies/ap/2018bapfrechex262/

A talaq divorce is rarely knocking at the door of Greek courts. A court in Thessaloniki dismissed an application for the recognition of an Egyptian talaq, invoking the public policy clause, despite the fact that the application was filed by the wife. You can find more information about the case, and check my brief comment here.

What puzzles me though is whether there are more jurisdictions sharing the same view. Personally I don’t feel at ease with this ruling for a number of reasons. But prior to that, a couple of clarifications:

1. This case bears no resemblance to the Sahyouni saga. The spouses have no double nationality: The husband is an Egyptian, the wife a Greek national.
2. There was no back and forth in their lives: they got married in Cairo, and lived there until the talaq was notarized. Following that, the spouse moved to Greece, and filed the application at the place of her new residence.
3. Unlike Egypt, Greece is not a signatory of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.
4. There is no bilateral agreement between the two countries in the field.

I’m coming now to the reasons of my disagreement with the judgment’s outcome.

1. The result is not in line with the prevalent view in a number of European jurisdictions: From the research I was able to conduct, it is my understanding that Austria, Germany, France, Italy, Spain, the Netherlands, Norway, and Switzerland, do not see any public policy violation, when the wife takes the initiative to apply for recognition of the talaq.
2. The reasoning of the court is a verbatim reiteration of an Athens Court of Appeal judgement from the ‘90s. It reads as follows: Solely the recognition of such an act would cause profound disturbance to the Greek legal order, if its effects are to be extended and applied in Greece on the basis of the Egyptian applicable rules. What is actually missing is the reason why recognition will lead to profound disturbance, and to whom. Surely not to the spouse, otherwise she wouldn’t file an application to recognize the talaq.
3. It should be remembered that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination. Given the consent of the spouse, I do not see who is going to feel disturbed.
4. Recognition would not grant carte blanche for talaq divorces in Greece. As in other jurisdictions, Greece remains devoted to fundamental rights. What makes a difference here is the initiative of the spouse. In other words, the rule remains the same, i.e. no recognition, unless there’s consent by the wife. Consent need not be present at the time the talaq was uttered or notarized; it may be demonstrated at a later stage, either expressly or tacitly. I guess nobody would seriously argue that consent is missing in the case at hand.
5. Talking about consent, one shouldn’t exclude an ex ante tacit agreement of the spouses for financial reasons. It has been already reported that all remaining options for a spouse in countries where Sharia is predominant are much more complicated, time-consuming, cumbersome, and detrimental to the wife. Take khul for example: It is indeed a solution, but at what cost for the spouse…
6. Last but not least, what are the actual consequences of refusal for the spouse? She will remain in limbo for a while, until she manages to get a divorce decree in Greece. But it won’t be an easy task to accomplish, and it will come at a heavy price: New claim, translations in Arabic, service in Egypt (which means all the 1965 Hague Service Convention conditions need to be met; Egypt is very strict on the matter: no alternative methods allowed!); and a very careful preparation of the pleadings, so as to avoid a possible stay of proceedings, if the court requires additional information on Egyptian law (a legal information will most probably double the cost of litigation…).

For all the reasons aforementioned, I consider that the judgment is going to the wrong direction, and a shift in Greek case law is imperative, especially in light of the thousands of refugees from Arab countries who are now living in the country.

As I mentioned in the beginning, any information on the treatment of similar cases in your jurisdictions is most welcome.

Dear readers,

Conflictoflaws.net has been around for 12 years by now. It has developed into one of the most relevant platforms for the exchange of information and the discussion of topics relating to conflict of laws in a broad sense. And while the world has changed a lot during the past 12 years the look of conflictoflaws.net has basically remained the same. Today this is going to change:

We are happy to announce that www.conflictoflaws.net has received a (slightly) new design!

As you will see, we have tried to keep the overall simple appearance of the blog while giving it a slightly more modern touch. As regards the structure, however, there is one major change. As of today, posts will come in two different categories: “views” and “news”. Under “views” posts with independent content (case notes, comments, etc.) will be displayed“. Posts under “news” will convey all sorts of information (relating to, for example, conference announcements, book releases, job vacancies, call for papers, etc.).

We hope that you will like the new design and find the new structure useful. Should you have any comments or experience problems please get in touch. Needless to say that the same holds true, if you wish to share “views” and “news”!

Best wishes and happy reading!

The editors

Issue 3 of the Journal of European Private Law (Zeitschrift für Europäisches Privatrecht) has just been released. It contains the following articles:

Robert Magnus: Der grenzüberschreitende Bezug als Anwendungsvoraussetzung im europäischen Zuständigkeits- und Kollisionsrecht

Under Article 81 (1) TFEU, the EU competence for judicial cooperation in civil matters requires ‘cross-border implications’. The questions when and how such implications can be assumed and whether or not reliable principles can be established in this context, are the subject of this article.

Pedro del Olmo: Obligations, Contracts and ‘Performance by Third Persons’: A case of False Friends in the PECL and the DCFR

What the civil law tradition calls “payment by a third party” is based on the simple idea that almost anyone can fulfil the obligation of another and by doing so free the debtor from her duty. The new approaches adopted in the DCFR regarding performance by a third party are unclear and contradictory. This paper demonstrates that many difficulties in this area can be avoided if the distinction between actual performance by a third party and “accord and satisfactions” (datio in solutum) by a third party is maintained.

Susanne Zwirlein: „Mortuus redhibetur“ permansit

“Mortuus redhibetur” is not only a legal rule handed down in the Digest, but also a legal shorthand for the question of how the destruction of a defective object of sale through no fault of the buyer affects the right to termination and the consequences of its exercise. This article examines this question in a comparative historical way reviewing the solutions in Roman, English and German law and the respective channels of reception.

Ádám Fuglinszky: The Conceivable Ways and Means of the Further Harmonization of European Product Liability Law – Mandatory Direct Claim against the Producer for Repair or Replacement?

This article examines the advantages and disadvantages of mandatory direct remedies for repair or replacement against manufacturers. It then compares models regulating such claims employed by Member States and outlines a basis for future European harmonization.

Lorenzo Bertino: Marriage and family: Civil Unions in Italy

The Italian legislature recently introduced a legal framework for the regulation of homosexual partnerships, the content and constitutional significance of which is outlined in this article. It is argued that this “Civil Union” is significantly different from marriage.

The aim of this two-day conference is to bring together representatives of Small States, government officials, academics and NGOs, as well as lawyers who are involved in dispute resolution in or for Small States (defined as those states with a population of 1.5 million or less). Conference participants will explore how (international) environmental dispute resolution can be used to combat climate change or environmental degradation and will discuss how Small States can obtain reparation for suffered environmental and/or climate change damage.

Many Small States are small island states. Climate change presents unique challenges to those states in particular. The difficulties that all countries face in effectively coping with the impact of climate change or environmental issues are exacerbated in Small (island) States because of their geographical area, isolation and exposure.

The conference is free of charge. Registration and programme can be found here.

In England, almost all married Muslim women have had a nikah, a religious celebration. By contrast, more than half of them have not also gone through a separate civil ceremony, as required under UK law. The often unwelcome consequence is that, under UK law, they are not validly married and therefore insufficiently protected under UK law: they cannot claim maintenance, and they cannot get a divorce as long as the marriage is viewed, in the eyes of the law, as a nullity.

The government has tried for some time to remedy this, under suspicious gazes from conservative Muslims on the one hand, secularists on the other. A 2014 report (the ‘Aurat report’), which  demonstrated, by example of 50 cases, the hardships that could follow from the fact that nikahs are not recognized, found attention in the government party. An independent review into the application of sharia law in England and law, instigated by Theresa May (then the Home Secretary) in 2016 and published earlier this year, recommended to ensure that all Islamic marriages would also be registered; it also recommended campaigns for increased awareness.

Such steps do not help where the wedding already took place and has not been registered. A new decision by the High Court brings partial relief. Nasreen Akhter (who is a solicitor and thus certainly not an uneducated woman ignorant of the law) asked to be divorced from her husband of twenty years, Mohammed Shabaz Khan. Khan’s defense was that the marriage, which had been celebrated as a nikah in west London, existed only under Islamic, not under UK law, and therefore divorce under UK law was not possible. Indeed, up until now, the nikah had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid. However, drawing at length on Human Rights Law, it declared the marriage void under sec 11 of the Matrimonial Causes Act 1973 and granted the wife a decree of nullity. This has important consequences: Unlike a non-marriage, a void marriage allows a petitioner to obtain financial remedies.

The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision relies on the specific facts; certainty before the law will still be reache donly through registration of the marriage.

The decision is here.

The Law Department of the University of Verona (Italy), in cooperation with the Ph.D. School of Law and Economics and the European Documentation Centre, welcomes submission to the #TILT Young Academics Colloquium, to be held on 23-24 May 2019. It is the first meeting involving early career scholars on trending international and EU law topics to be organised in the unique location of the city of Verona.

The Colloquium falls within the activities of the research project “Trending International Law Topics – #TILT”, supervised by Maria Caterina Baruffi (Full Professor of International Law, University of Verona), which is aimed at deepening the investigation and fostering scientific discussion on trending topics in international and EU law, including also their impact on domestic legal systems. A series of seminars featuring prominent foreign academics and other events have already been organised so far, focusing for example on the relationships between the EU and national legal orders, migration, the EU Regulations in family law matters, the free movement of persons and the protection of fundamental rights.

In this context, the Colloquium represents a further activity dedicated to open issues in international and EU law, but specifically addressed to Ph.D. students and young researchers of any nationality and affiliation, who will be the leading speakers at this event. First, they are expected to present the results of their research, and then, to engage in the debate with the invited international experts acting as chairpersons and discussants.

The Call for Papers “What’s #Trending in International and EU Law” has been issued to select the papers that will be included in the Colloquium’s program. It is directed at advanced Ph.D. students (or within three years of its completion), post-doc research fellows and academics at early stages of their career, who are encouraged to submit proposals (in English) concerning public international law, private and procedural international law, or EU law, including also comparative perspectives, as well as issues related to law and economics.

Interested applicants are invited to submit:

• a proposed title,
• an abstract in English of max. 8000 characters (including spaces),
• 3 keywords,
• a CV

through the Call for Papers Application Form.

The deadline for submission is 15 October 2018 and applicants will be informed of the outcomes by 15 December 2018.

Detailed information about the Call for Papers are available here.

Any inquiry about the #TILT Young Academics Colloquium or the Call for Papers can be directed at this e-mail: trendingtopics.univr@gmail.com.

Dear LSGL members,

We are pleased to announce that there will be a winter academic conference on the topic of Global Social Justice, hosted by the Department of Law, Juridicum, at the Stockholm University, Sweden, on Tuesday, 19 February in conjunction with the Dean’s meeting planned for 18 February, 2019. We ask that you send the attached call for papers to any senior and/or junior researchers at your institutions who may be interested in participating on a panel within the topic. Potential themes include:

• The globalization of discrimination protections (e.g., labour/employment discrimination; gender-based discrimination including issues relating to the #MeToo movement)
• Equality in global trade – the roles of the WTO and other international actors
• Environmental law as a guarantor of global social justice
• Corporate social responsibility – An avenue to greater global justice?
• The potential role of digital technology in promoting global social justice

We anticipate having four panels each with three speakers and a moderator, thus accepting 12 papers. The LSGL will pay for two hotel nights for each one of the 12 speakers.
Paper proposals of 300 to 500 words should be submitted no later than 6 October 2018 together with a brief CV. Decisions will be announced by 1 November 2018 and the papers should be ready for circulation no later than 1 February 2019. Please send any inquiries and paper proposals to presidency@lawschoolsgloballeague.com.

Gustavo Moser has authored a new book on choice of law in cross-border sales. He has kindly provided the following summary:

The choice of a governing contract law is a paramount contractual decision. This is because the governing contract law will dictate a contract’s life from beginning to end, thereby attaching legal and economic consequences to each step taken in the course of a contractual relationship. Yet, this choice is seldom subject to an ex anteevaluation by the parties being rather often defer to an ex postverification. Would this be a contracting parties’ behaviour verified in cross-border contracts? If so, what would be the underlying cause(s) of this pattern of conduct?

Despite its acknowledged theoretical importance, it is often suggested that negotiators might dedicate less attention than they should to the particulars of the choice of law clause. Instead, negotiators tend to opt for law that may be convenient for business, or be the result of previous experiences, including, for example, following in a partner’s footsteps, or a successful deal in the past, without further deliberation. Parties may thus simply attribute a “tag” to this experience and evaluate it according to the outcomes achieved in these previous experiences. However, these evaluations may not always be accurate and can be clouded by emotion. Are there rational and non-rational elements involved in this choice? How can we ascertain these elements?

In light of this apparent discrepancy between theory and practice, we decided to investigate further how traders actually choose the law for their deals. We also wanted to find out the reasons for these decisions and the foundations on which these decisions are based. We therefore mapped out and delved into studies and surveys conducted in the past to appreciate the empirical efforts that had been undertaken so far.

Despite their unquestionable importance, scarce information is available in these studies on how this decision is taken, and the main factors informing choice of governing contract law. The alternatives available to improving and optimising this choice are likewise unexplored.

Additionally, the connection and role of law, economics and psychology in decision-making processes is often underexplored and possibly underestimated. Unfortunately, in a dynamic, globalized and complex world of contracts, interdisciplinary approaches are rarely studied. Therefore, there does not seem to be any answer to these practical questions:

• Are contracting parties maximizers of their welfare?
• Are they, generally speaking, self-interested players who seek to reach efficient results?
• Does it depend on the context and external stimuli?
• Do emotions play any role in the choice?
• Can these emotions cloud or enlighten the judgment of these choices? If so, to what extent?
• How can we avoid, control or minimize the effects of these emotional factors?
• How can parties seek to influence and improve choice of governing contract law?

This is how the Global Empirical Survey on Choice of Law (for the purposes of this summary, the Global Empirical Survey) was conceived in 2014. The survey was essentially designed to investigate parties’ concerns regarding choice of law, reveal how and what factors determine the way contracting parties choose the law to govern their agreements, and to assess whether neutral legal frameworks were welcome in addressing these concerns.

The first chapter of the book sets out evidence on the choice of law and include a focus on how negotiators typically approach the subject and what are the main drives and triggers of this decision. We further investigate whether contracting parties are aware of the vast legal market options available and whether they actually enjoy their benefits. The first part also unveil the results of the Global Empirical Survey, which shown a rather clearer picture of the imperfections produced by cognitive limitations while choosing a governing contract law. In the second and third chapters, we map out some of the market distortions and imperfections to which negotiators are (consciously or not) routinely exposed. We also reveal the common psychological triggers that influence decision-making processes and how to identify and better control them to a party’s best advantage. We further shed light on the idiosyncratic contract design and the mechanisms to manage this properly in an international context, all in an attempt to identify and use the appropriate tools to make better decisions and obtain more efficient outcomes.

Readers will subsequently be invited to consider the major market distortions and failures to which contracting parties are routinely exposed.  We demonstrate that, with the increase of market activities and complexity of deals worldwide, parties need to be equipped with the most efficient tools to maximize gains from cross-border contracts, thereby avoiding risks and costly mistakes. With this purpose in mind, we analyse choice of law studies undertaken and offer alternatives to be used in practice, which seek to overcome recurrent complaints, uncertainties and fears when it comes to choosing governing contract law, including potential interplays and intersections with jurisdictional choices. We also attempt to verify the effectiveness of these solutions in light of the evidence presented.

The final chapter of the book concentrates on alternatives to escape “arm-wrestling”, “home turf”, deadlock situations and other tactical scenarios in cross-border contracts. We present and compare alternatives which can be used in international contract settings and then test the effectiveness of the solutions they can provide, taking into account both the legal and economic aspects and contracting parties’ real-life concerns and preferences collected in the earlier chapters. Readers are invited to find out the answers to the following questions: what really matters to contracting parties when drafting choice-of-law clauses? Are there key provisions, “backbones”, legal standards or frameworks that are indeed indispensable? Do contracting parties consider legal and economic choices at all? With this in mind, we aim to offer to legal practitioners tools that enable them to excel and effectively optimise, at a rather even level between parties, the exchange of goods worldwide.

The Asser Institute in The Hague (the Netherlands) is looking for a Researcher in Private International Law (full time – 38 hours per week).

The successful candidate is expected to start preferably from 1 November 2018 and will be conducting research on the Brussels I bis Regulation as part of a DG JUST research project, among other things. He or she will strengthen the research capacity of the Asser Institute in the area of private international law, working within its Research Strand on adequate dispute settlement, and in the context of the Institute’s Strategic Research Agenda.

Applications must be submitted before 7 September 2018.

Remuneration depends on the actual level of education, experience and knowledge with a maximum of € 4,852.-  gross per month based on a full time equivalent (38 hours). Secondary benefits at Dutch universities are attractive and include 8% holiday allowance and an 8.3% year-end allowance.

Applicants are expected to be fluent in Dutch (preferably native) and English. In addition, applicants should have earned a PhD in private international law and have post-doctoral research experience, among other things.

Further information is available here.

In 2017, the French Cour de Cassation has promoted  a series of seven conferences on the application of foreign law, in partnership with the Société de législation comparée.

Theses conferences have just been published by the SLC.

Prefaced by Mr. Dominique Hascher, Judge at the Cour de cassation and President of the Société de législation comparée, the book contains the following contributions :

Jean-Pierre Ancel, L’office du juge dans la recherche du contenu du droit étranger (The judge’s role in establishing the content of foreign law)

Jean-Baptiste Racine, L’application par les juridictions françaises du droit uniforme et des conventions internationales (The application of uniform law and international conventions)

François Mélin, La coopération internationale dans la recherche du droit étranger : les méthodes classiques (International cooperation in researching the content of foreign law : traditional methods )

Florence Hermite, La coopération internationale dans la recherche du droit étranger : le renouvellement des méthodes (International cooperation in researching the content of foreign law : renewal of methods)

Sabine Corneloup, L’application facultative de la loi étrangère dans les situations de disponibilité du droit et l’application uniforme des règles de conflit d’origine européenne (Optional application of foreign law in situations of availability of law and the uniform application of rules of conflict of European origin)

Gustavo Cerqueira, La hiérarchie étrangère des normes devant le juge français (The foreign hierarchy of norms before the French judge)

Alice Meier-Bourdeau, Le contrôle par la Cour de cassation de l’application du droit étranger (The Cour de cassation’s control in applying foreign law)

Sara Godechot-Patris, L’exception d’équivalence entre la loi française et la loi étrangère (The exception of equivalence between the French law and the foreign law)

The book can be ordered here.

The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of 5 funded PhD positions at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural law.

The IMPRS-SDR was established in 2009 to bring together academics and seasoned practitioners with excellent PhD candidates in international dispute settlement to examine and compare international dispute resolution from a legal and interdisciplinary perspective. It is a collaborative effort of several prestigious research institutions in Germany and Luxembourg, namely, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, Heidelberg University, the University of Luxembourg, the Max Planck Foundation for International Peace and the Rule of Law gGmbH, and the Max Planck Institute for Comparative Public Law and International Law.

In addition to providing a stimulating research environment, the IMPRS-SDR strives to furnish PhD candidates with theoretical and practical insights into the many facets of international dispute resolution.

Selected PhD candidates will receive full-time research contracts of initially two years, with a possible extension. They are embedded in one of the Departments and its activities while also participating in activities organized by the IMPRS-SDR.

For further information on the admission criteria and the application process, as well as to submit your application, please visit: https://www.mpi.lu/imprs-sdr/call-for-applications/2018/ . Closing date for applications is 31 August 2018.

Former Secretary General of the Hague Conference on Private International Law (HCCH), Hans van Loon, has just published a very interesting article on “Principles and building blocks for a global legal framework for transnational civil litigation in environmental matters” in the Uniform Law Review, Vol. 23, Issue 2, June 2018, pp. 298–318.  An abstract is available at https://doi.org/10.1093/ulr/uny020.

He suggests a number of basic structural components – building blocks – for a global legal framework for transnational civil litigation in environmental matters such as: jurisdiction, applicable law, recognition and enforcement, and judicial and administrative communication and co-operation (pp. 316-318).

Of particular note is the reference to Article 5(1)(j) of the Hague Draft Convention on the Judgments Project, which provides that a judgment is eligible for recognition and enforcement if one of the following requirements is met –

(j) the judgment ruled on a non-contractual obligation arising from death, physical injury, damage to or loss of tangible property, and the act or omission directly causing such harm occurred in the State of origin, irrespective of where that harm occurred.

The author notes the possible challenges that may arise when the harmful event occurred elsewhere (neither in the defendant’s home – Art. 5(1)(a) of the Draft Convention  – , nor in the State of Origin where the act or omission directly causing such harm occurred, see p. 315) and makes recommendations. For more information on this provision and its narrow scope, please refer to the Preliminary Explanatory Report of the Judgments Convention  (paragraph 162bis, pp. 34-35).

The last issue of the Revue critique de droit international privé will shortly be released. It contains several casenotes and an article, authored by Campbell McLachlan who is Professor of Law at Victoria University of Wellington (“Entre le conflit de lois, le droit international public et l’application internationale du droit public : le droit des relations externes des Etats »).

The abstract reads as follows:

The relationships between States and individuals of foreign nationality from the perspective of their constitutional rights and freedoms raise a series of issues that all States must resolve and that sit at the interface of the constitutional order of each of them and the intertional legal system through which they are connected. Today, this interface has progressively become porous, raising legal problems in increasing numbers and with increased frequency. The various responses generated thereby exercise a powerful influence over the legal imaginary, including on the ways in which a legal system represents its own relationship with the rest of the world. The thesis developed here is that such responses belong to a third discipline, in between the two traditional, public and private, branches of international law. This discipline can be called «  the law of external relations », borrowing a term from one of the Restatements of the United States but little used in Europe. In what follows, the possible conceptions of this disciplinary field will be explored, along with its relationship to private international law.

A full table of contents is available here.

By Frédéric Breger, Legal Officer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

The Permanent Bureau of the HCCH has just released Volume XXII of the Judges’ Newsletter (Summer-Fall 2018) with a Special Focus on “The Child’s Voice – 15 Years Later”.

This “Anniversary” Volume was published in co-operation with Professor Marilyn Freeman (University of Westminster, London, England) and Associate Professor Nicola Taylor (University of Otago, Dunedin, New Zealand) in the context of their British Academy research grant on the objection of the child under Article 13(2) of the 1980 Child Abduction Convention. It gathers contributions from 25 authors (academics, lawyers, judges, mediators, psychologists…) and covering approximately 15 jurisdictions on the topic of the “objection of the child” exception. The objective of this publication is to share good practices on how to hear children in the context of a child abduction case; it further outlines examples of guidelines and normative work developed across jurisdictions in relation to the voice of the child.

A French version of this Volume will be available in October 2018. All previous volumes of the Judges’ Newsletter are available here.

The Accelerated Route to Fellowship Program is a designed for senior practitioners in the field of dispute resolution procedures. Fellowship is the highest grade of Institute membership and allows the use of the designation FCIArb.The program focuses on applicable laws and procedures for the conduct of efficient arbitration hearings in complex international cases. Satisfactory assessment of performance in role play exercises will permit the candidate to take the award writing examination for qualification as a Fellow of the Chartered Institute of Arbitrators, which will be administered as part of the program.

Registration and other details are available here.

July 19, 6pm – 8pm

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

Lord Reed, Comparative Law in the Supreme Court of the United Kingdom

Peter Mankowski, Über den Standort des Internationalen Zivilprozessrechts -Zwischen Internationalem Privatrecht und Zivilprozessrecht (International Procedural Law: Between Choice of Law and Procedural Law):

International procedural law is the link and the intermediary between choice of law and procedural law. Over the last decades it has developed into a fully grown sub-discipline of its own and of equal rank as choice of law. In fact, for practical purposes it has become even more important than choice of law. International procedural law benefits from its position in the middle and enjoys the best from its two neighbouring worlds of choice of law and procedural law.

Susanne Lilian Gössl, Anpassung im EU-Kollisionsrecht (Adaptation in EU Private International Law):

Adaptation or adjustment has to date received little general attention in EU private international law (EU PIL) despite this tool being of high importance in maintaining the coherence between the EU PIL system and national law. The Brussels Ia Regulation, the Succession Regulation and the Matrimonial/Registered Partnership Property Regimes Regulation explicitly provide for the tool of adaptation. Nevertheless, those provisions only deal with one certain category of that tool, what is termed transposition. In general, adaptation refers to the judge’s discretion to deliberately deviate from a rule in an exceptional case in which two different national laws apply in juxtaposition and the combined application could lead to a contradictory result intended by neither of the two national systems. Adaptation diminishes or eliminates those contradictions. The judge’s discretion to adapt national and EU rules implicates questions about the relationship between EU and Member State competence. The present analysis is the first to address this topic comprehensively. It develops a system to decrease contradictions between EU PIL and national law. As the EU PIL system is still only fragmentary, the analysis is twofold. First, the article analyses the necessity, requirements and means of adaptation in a case that is governed by two EU PIL rules. Second, the article analyses whether the outcome changes if the applicable law is determined by one EU PIL rule and one national PIL rule.

Alexander Hellgardt, Das Verbot der kollisionsrechtlichen Wahl nicht-staatlichen Rechts und das Unionsgrundrecht der Privatautonomie (Fundamental Right of Party Autonomy and the Prohibition Against the Choice of Non-State Law):

Choice of law is a cornerstone of European private international law. However, existing secondary law continues to restrict the choice to state law, excluding non-state law regimes like the Principles of European Contract Law, the UNIDROIT Principles of International Commercial Contracts or detailed standard-form contracts. This article tests the restriction against the principle of party autonomy, which is shown to be a European fundamental right. Party autonomy encompasses the right to choose nonstate law regimes in international cases. Any restriction on the choice of non-state law regimes, therefore, needs to be justified. Where private international law does not impose any restrictions on the choice of law, as is the case in the choice of contract law between commercial parties, there is no apparent justification for excluding the choice of non-state law regimes. Hence, European secondary law has to be interpreted in the light of the fundamental right of party autonomy. This allows commercial parties to choose non-state contract law regimes for their international transactions.

Harald Baum, Andreas M. Fleckner & Mihoko Sumida, Haftung für Pflicht-verletzungen von Börsen – Deutschland und Japan im Vergleich (Liability for Trading Irregularities at Stock Exchanges):

It appears from public records that no German stock exchange, exchange operator, or host state has ever been held liable by a court for trading irregularities at the exchange (such as clearly erroneous executions). The Tokyo Stock Exchange, in contrast, was ordered to pay damages of almost eleven billion yen (roughly 80 million euros) following the Mizuho case. This paper discusses how the issues raised by the Mizuho case would have been handled under German law and compares the results with the decisions of the courts in Japan.

The Faculty of Law at the University of Mannheim is looking for a research fellow (akademische Mitarbeiterin / akademischer Mitarbeiter) at the Chair for Private Law, International and European Business Law (Prof. Dr. Moritz Renner) on a part-time basis (50 %, E 13 TV-L) as of 1 September 2018 or later.

His/her tasks will include supporting the chairholder in research and teaching, especially in the areas of conflict of laws, company law, banking law, and foundations of law.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the supervision of the chairholder. The successful candidate holds a first law degree (Erste juristische Prüfung or equivalent) above average (at least “vollbefriedigend”). A very good command of German and English is required, further language skills will be an asset.

The position will be paid according to the salary scale E 13 TV-L. The contract period will be limited according to the Wissenschaftszeitvertragsgesetz.

The University of Mannheim aims at increasing the number of women in academia. Therefore, applications of qualified women are particularly welcome. Candidates with disabilities will be given preference in case of equal qualification.

If you are interested, please send your application (cover letter in German, CV, all relevant documents) by 31 July 2018 to: Professor Dr. Moritz Renner, Universität Mannheim, Lehrstuhl für Bürgerliches Recht, Internationales und Europäisches Wirtschaftsrecht, Schloss, D-68131 Mannheim, LS11@jura.uni-mannheim.de

The job advert in full detail is available here.

On 19-20 November 2018, the conference ‘Challenge Accepted! Exploring Pathways to Civil Justice in Europe’ will take place at the Erasmus School of Law in Rotterdam (under the ERC project Building EU Civil Justice). It will focus on how (1) the use of artificial intelligence in dispute resolution, (2) the privatisation of justice and the multiplication of alternative dispute resolution schemes, (3) the increased possibility of self-representation, and (4) court specialisation, in particular international commercial courts, influence the civil justice system. The panel descriptions are available here.

The full program with a great line-up of speakers and information on registration will follow soon.