Conflictoflaws

Written by Sophie Hunter, University of London (SOAS)

In light of the turmoil in the UK Parliament since the start of 2019, the only certain thing about Brexit is that everything is uncertain. The Law Society of England and Wales has warned that “if the UK’s relationship with the rest of the EU were to change as the result of significant renegotiations, or the UK choosing to give up its membership, the effects would be felt throughout the legal profession.”  As a result of Brexit, British firms and professionals will no longer be subject to European directives anymore. This foreshadows a great deal of complexity. Since British legal entities occupy a central place within the European legal market, stakes are high for both British and European lawyers. A quick overview of the challenges faced by English LLPs in France and the Paris Bar demonstrates a high level of complexity that, is not and, should be considered more carefully by politicians.

Currently, 1872 foreign lawyers from 92 different citizenships are registered at the Paris Bar, according to a report by Dominic Jensen, 181 are British citizens, out of which 72 are registered under their original professional titles pursuant to the European Directive 98/5/CE (70 solicitors and 2 barristers). From 61 foreign legal entities established in France, the majority are English limited liability partnerships (LLP) which employ 1,600 lawyers. Some American law firms rely on the LLP structure as a strategy to establish themselves within the European legal market. According to the European Directive 98/5/CE, foreign legal entities of one Member State can be registered at the Bar of another Member State. The consequences of Brexit will be radical. Because the UK will no longer be part of the EU, foreign legal entities subject to English Law and established in EU Member States will no longer be recognized by the Bar of the host state, and thus will no longer be entitled to do business within its jurisdictions. For the Paris Bar, stakes are high since no other European capital has experienced such an important implementation of British and American law firms.

With the deadline of Brexit looming closer, no one has raised the topic of foreign lawyers and the exercise of their right to practice in European jurisdictions, in spite of numerous calls from The Law Society of England and Wales. While the UK is advocating for mutual recognition of professional qualifications, the French Bar led by Florent Loyseu de Grandmaison has drafted a report outlining various ways to solve this problem. According to a new ordinance published in April 2018, a foreign legal consultant can register with the Paris Bar to practice international law and any other type of law he or she is registered for, with the exception of European law and the law of Member States. The main concern of LLPs will focus primarily on how to continue to practice in France with little disruptions. LLPs owned by English solicitors will need to establish French legal entities owned and managed according to French and European Law. Most likely, English LLPs established in France will benefit from a new legal structure called AARPI, which stands for French limited partnership and mirrors the structure of LLPs. However it is not fully implemented within French legislation yet.

In a tensed climate between the UK and the EU, the fate of foreign legal consultants and entities seem more than ever uncertain. The example of France demonstrates, first, a high degree of complexity in the legislation that prevents LLPs to easily transpose their structure into the jurisdiction post Brexit, and a lack of preparation from both LLPs and the host state to face the practical consequences of Brexit. The UK and EU Member States will need to show a great deal of flexibility to quickly adapt legislation to incorporate English LLPs within their jurisdictions. Therefore, the fear of The Law Society of England and Wales which has repeatedly warned the UK government of the consequences of a “no deal” seem justified. Regardless of whether Brexit is implemented or postponed on March 29, finding an appropriate answer to the dilemma faced by foreign legal professionals and LLPs across the continent should be a priority on the agenda.

On February 26, Budapest will see the kick off conference for an EU-sponsored cooperation of seven universities on the operation of EU private international law in Central Europe. The conference program and the registration link are available here.

On 22 March 2019 the Catholic University of Milan will host a seminar (in English) on The International Protection of Adults in the European Union – Improving the Operation of the Hague Convention of 13 January 2000 between Member States.

The event is part of the European Law Institute’s project on The protection of adults in international situations.

The aim of the project is to outline the text of the measures that the European Union could adopt in order to enhance, in cross-border situations, the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The project builds on the idea that the Hague Convention of 13 January 2000 on the international protection of adults, which is currently in force for twelve States (eleven of which are Member States of the Union), provides an excellent framework of cooperation in this area, but that its operation could be further improved regionally through Union’s legislation.

The main proposals prepared by the expert group in charge of the project will be illustrated and discussed in the seminar, in light of the latest developments in this area, including the Conclusions and recommendations adopted at the EC-HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults of 5-7 December 2018 in Brussels.

Speakers include academics, representatives of the Union’s institutions and the Permanent Bureau of the Hague Conference, notaries and government officials.

The agenda of the seminar is available here.

Attendance is free, but those wishing to take part in the seminar are invited to send an e-mail to pietro.franzina@unicatt.it by 10 March 2019 (early registration is recommended).

Posted on behalf of Jan Jakob Bornheim

The New Zealand Yearbook of International Law (Brill) is an annual, internationally refereed publication. The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in Volume 16 of the Yearbook (2018), which will be published in 2019.

Notes and commentaries should be between 3,000 to 7,000 words. Articles may be from 8,000 to 15,000 words.The Editors seek contributions on any current topic in public or private international law. The Editors particularly encourage submissions that are relevant to the Pacific, the Southern Ocean and Antarctica, and New Zealand.

Submissions will be considered on a rolling basis. However, the closing date for submissions for Volume 16 is 31 May 2019.

Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with fourth edition of the Australian Guide to Legal Citation. The Guide is available online at: http://law.unimelb.edu.au/mulr/aglc/about.

Submissions should be provided in English, using MS Word-compatible word processing software, and delivered by email to the General Editor at janjakob.bornheim@canterbury.ac.nz.

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint a Research Assistant (Wissenschaftliche/r Mitarbeiter/in) with knowledge of French, Italian, Dutch, or Spanish. It is a part-time position with 19.92 hours per week (50%), which allows for the completion of a PhD thesis. Provided that the legal conditions are met, the remuneration will be based on pay group 13 TV-L. The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and are given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are welcome. They will be given preferential consideration if they are suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents by 20 March 2019 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

The Dutch Journal on Private International Law (Nederlands Internationaal Privaatrecht) publishes papers in Dutch and in English.

Here are the abstracts of the last two issues of 2018.

Issue 2018.3

Ian Sumner, ‘Editorial: Groundbreaking decision or a tiny tremor? The Court of Justice decision in Coman’, p. 1-3.

The third issue of 2018 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the recognition of legal parentage established abroad, the recent decision rendered by the Supreme Court of the Netherlands on recognition and enforcement of annulled arbitral awards (NLMK), the main private international law aspects of the new Geo-blocking Regulation (especially with regard to cross-border consumer contracts), the most glaring contradictions and ambiguities in jurisprudence on the free movement of companies in the EU and the decision of the Court of Justice of the European Union in Bolagsupplysningen about the internet, freedom of speech and the protection of privacy.

Susan Rutten, ‘Erkenning van in het buitenland gevestigde afstamming’, p. 4-24.

This contribution discusses current case law on the recognition of legal parentage established abroad. The issues that are involved concern the descent from polygamous marriages, descent from invalid, void or non-existing marriages, and the recognition of children abroad by married men. With the judgment of the Dutch Supreme Court of 19 May 2017 (ECLI:NL:HR:2017:942; NJ 2017/435) on the descent of children born from polygamous marriages in mind, it will be examined which interests judges consider to be essential when assessing and deciding the foreign parentage, and whether or not the foreign parentage can be recognized as legal parentage in the Netherlands. Th e conclusion of the article is that the principles involved in the judicial decisions, in particular the principles of family life and public policy, do not seem to be always consistently relied upon by the Supreme Court.

D.G.J. Althoff, ‘Internationale arbitrage en IPR: toepassing van erkenningsvoorwaarden uit het Nederlandse commune IPR bij erkenning en tenuitvoerlegging van vernietigde buitenlandse arbitrale vonnissen onder het Verdrag van New York 1958’, p. 25-43.

This article discusses the recent decision rendered by the Supreme Court of the Netherlands on recognition and enforcement of annulled arbitral awards (NLMK). The court ruled that the wording ‘may be refused’ in Article V(1) preamble of the New York Convention (NYC) grants the court a certain margin of discretion to recognise a foreign arbitral award and grant enforcement even if in the specific case one or more of the grounds for refusal set out in Article V(1) NYC apply. Only under special circumstances does Article V(1)(e) NYC not prevent the court from using the margin of discretion to recognise or grant enforcement of annulled foreign arbitral awards. The special circumstance focused on in this article is the one that arises if the foreign judgment that annuls the award is not eligible for recognition in the Netherlands on the basis that one or more conditions for the recognition of foreign judgments under Dutch private international law are not fulfilled. The article commences with a short description of the New York Convention and Article V(1)(e) NYC. After analysing the Yukos Capital/Rosneft-decision and the NLMK-decision within the broader discussion on recognition and enforcement of annulled arbitral awards under the New York Convention, a comparison of both decisions is made. Further, the article discusses the application of the conditions for the recognition of foreign judgments under Dutch private international law in recognition and enforcement procedures of annulled foreign arbitral awards.

María Campo Comba, ‘The new Geo-blocking Regulation: general overview and private international law aspects’, p. 44-57.

This contribution will focus on the main private international law aspects of the new Geo-blocking Regulation, especially with regard to cross-border consumer contracts. The Geo-blocking Regulation has recently entered into force in the EU with the objective of preventing unjustified discrimination regarding online sales. The new Regulation is of special interest from a private international law point of view because of the possible impact on the interpretation of the EU rules on jurisdiction and applicable law concerning cross-border consumer contracts. The present contribution will analyse whether the obligations imposed by the Geo-blocking Regulation might affect the concept of ‘directed activities’ laid down in the Brussels I bis Regulation and Rome I Regulation and interpreted by the ECJ.

Aleksandrs Fillers, ‘Contradictions and ambiguities in ECJ case-law on free movement of companies’, p. 58-72.

The present article looks at some of the most glaring contradictions and ambiguities in jurisprudence on the free movement of companies in the EU. The first major case on free movement of companies was rendered by the ECJ in 1988. After this, the Court rendered a few landmark cases that step by step reshaped the freedom granted to companies in the internal market. In 2017, the ECJ rendered the Polbud case, thereby granting companies more freedom than ever before to choose the legal system they consider best for reincorporation. The road towards greater corporate mobility has been rocky and not always transparent. The ECJ does not expressly overrule its previous cases, but rather creates new distinctions and constantly re-interprets its older jurisprudence. As a result, the judgments are often not only ambiguous and mutually contradictory but even self-contradictory. The author makes an attempt at identifying these contradictions and ambiguities and analyses their causes and their relevance within the current jurisprudence.

Jan-Jaap Kuipers, ‘Nieuwe ronde, nieuwe kansen? Een nieuw arrest van het HvJEU over het internet, vrijheid van meningsuiting en bescherming van de persoonlijke levenssfeer: HvJEU 17 oktober 2017, zaak C-194/16 (Bolagsupplysningen)’, p. 73-80.

The decision of the Court of Justice of the European Union in e-Date Advertising has provoked widespread criticism in academic literature. In Bolagsupplysningen, the CJEU has taken the opportunity to confirm its earlier decision. The CJEU also clarified the right of a victim to bring proceedings before the court of its centre of interest. The CJEU however found that a person alleging that his personality rights have been infringed by the publication of incorrect information about him on the internet and the failure to remove comments relating to him cannot bring an action for rectification of that information and removal of those comments before the courts of the individual Member States in which the information published on the internet is or was accessible. Although the CJEU does not go back on its earlier case-law, the concerns raised in legal writings appear to have been taken seriously.

Issue 2018.4

Paulien van der Grinten, ‘2018: A year of anniversaries in private international law, p. 1-4.

C.A. de Visser, ‘The EU conflict of laws rules on the law governing the effects of an assignment against third parties: some fundamental problems of the Proposal’, p. 5-18.

The EU’s Proposal for conflict of laws rules on the law governing the effects of an assignment against third parties aims to provide predictability for parties involved in an assignment. This contribution concludes that, unfortunately, the Proposal’s suggested conflict of laws rule, based on which the law of the assignor’s habitual residence governs the third-party effects, does not provide that predictability. It also concludes that there are some other fundamental problems with the Proposal and the assumptions underlying it. Most importantly, it questions whether the Proposal’s suggestion that priority between competing assignments is determined by the assignment that is valid and effective first in time has a proper legal basis. It also analyses what law governs the effects of an assignment against third parties (other than the debtor of the assigned claim) and concludes that this is the law governing the assigned claim.

Aleksandrs Fillers, ‘The curious evolution of ECJ’s case-law on personal names: beyond the recognition of decisions, p. 19-33.

Free movement of EU citizens has significant influence on the law of personal names in Europe. Since the ruling in the Grunkin-Paul case, the non-recognition of personal names obtained in another Member State, under certain circumstances, may be qualified as an impediment to free movement of EU citizens. The Grunkin-Paul case seemed to operate within the paradigm of recognition of decisions. The author of the article argues that the said paradigm is not a precise conceptualization of the ECJ’s method. This is shown by two later rulings in the Sayn-Wittgenstein and Runevi?-Vardyn cases. The Court’s reasoning in the Sayn-Wittgenstein case shows that the recognition method used by the ECJ may expand to recognition of situations that do not validly exist in any legal order at the moment when recognition is requested. Pursuant to the Runevi?-Vardyn case, non-recognition of the spelling of the personal name may not be an impediment to free movement of EU citizens. The said cases show that the pillar of the Court’s methodology is the so-called ‘serious inconvenience’ test. The test determines the extent to which free movement of EU citizens requires recognition of personal names. Since the ruling in the Grunkin-Paul case, the test has evolved. In the Grunkin-Paul case it functioned within the paradigm of recognition of foreign decisions. Currently, it may be used to restrict that form of recognition or to expand recognition beyond that of foreign decisions.

Georgia Antonopoulou, ‘Defining international disputes – Reflections on the Netherlands Commercial Court proposal’, p. 34-49.

The last decade has seen the rise of international commercial courts also known as international business courts in Europe. Apart from the use of English as court language and the adoption of distinct procedural rules, the emerging courts share the aim to solely handle international disputes. Hence, the internationality of the dispute sets the jurisdictional scope of the international commercial courts and draws the line between these and the rest of the domestic courts. This article focuses on the upcoming Netherlands Commercial Court (NCC) and discusses the provisions defining the international character of a dispute under the respective proposal. First, the NCC internationality criteria are compared to the respective criteria under the Brussels Ibis Regulation and the Hague Convention on Choice of Court Agreements. Subsequently, this article zooms in on two internationality criteria, namely the application of foreign law and the use of a foreign language in the contract. In a comparative way, the suitability of these criteria to effectively encompass disputes with an international aspect is explored. This article concludes highlighting the need for narrow internationality criteria that are aligned with the criteria used under the Brussels Ibis Regulation and the Hague Convention on Choice of Court Agreements so as to safeguard the foreseeability of the NCC’s jurisdiction and square its professed aim to solely handle international disputes.

M.H. ten Wolde, ‘Oberle. De juiste balans tussen de belangen van nalatenschapsgerechtigden en het belang van rechtszekerheid? Hof van Justitie EU 21 juni 2018, C-20/17, NIPR 2018, 295 (Oberle)’, p. 50-58.

In ECJ Case C-20/17 (Oberle) of 21 June 2018 the central question is whether international jurisdiction in respect of the issuing of national certificates of succession regarding cross-border succession cases is governed by the jurisdiction rules of Succession Regulation No. 650/2012. The ECJ answered this question in the affirmative. Its argumentation for this decision is however very weak. At the same time the decision has a huge impact on the cross-border practice of winding up estates. A swift settlement of a cross-border estate by using both a national and a European certificate of succession from different participating Member States is no longer possible. The ECJ wrongly gives priority to legal certainty over the interests of those entitled to the estate of the deceased.

J.A. Pontier, ‘Boekbespreking: Kirsten Henckel, Cross-Border Transfers of Undertakings – A European Perspective; Iris A. Haanappel-van der Burg, Grensoverschrijdende overgang van onderneming vanuit rechtsvergelijkend en conflictenrechtelijk perspectief’, p. 59-68.

 

The latest issue of the Zeitschrift für Europäisches Privatrecht has just been released. It  contains the following articles (plus an interesting editorial by Heike Schweizer on the platforms as “private regulators”):

Francisco Garcimartín: The EU Regime on Securitisation: coordination between the regulatory framework and the conflict of law rules

This article analyses the relationship between the EU Securitisation Regulation and the Commisions’s Proposal on the law applicable to the third-party effects of assignment of claims. The former is an instrument of regulatory law, the application of which requires certain private-law conditions; in particular with regard to proprietary and insolvency law. In a cross-border context, the future Regulation on assignment of claims will fill a relevant gap in EU law and therefore together the Securitisation Regulation may contribute to restarting a sound securitisation market in the EU.

Leonhard Hübner: Die Drittwirkungen der Abtretung im IPR

With regard to the third-party effects of the assignment, there is a high degree of legal uncertainty in European conflict of laws. After a long struggle, the EU Commission therefore published a corresponding draft regulation in March 2018. The article examines whether the draft regulation establishes the necessary legal certainty and thus contributes to the further development of European conflict of laws.

Jan Böhle: Die Abwahl zwingenden Rechts vor staatlichen Gerichten in Inlandsfällen

According to Art. EWG_VO_593_2008 Artikel 3(3) of the Rome I Regulation parties cannot circumvent the application of mandatory rules by means of a choice of law in so-called domestic situations. However, it remains largely unclear whether the connection between a domestic contract and an international contract as well as the use of international standard documentation by the parties are sufficient to establish an international element to the situation. This article will answer these questions in the affirmative.

Christian Kohler, Sibylle Seyr and Jean-Christophe Puffer-Mariette: Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahr 2017

A number of decisions of the Court of Justice and the General Court of the European Union given in 2017 are again of particular interest for private law. Two judgments of the Grand Chamber of the ECJ address the issue whether the prohibition to wear an Islamic headscarf at the workplace amounts to a discrimination based on religion or belief. Further rulings concern discriminations based on grounds of age or sex. In a seminal judgment on the freedom of establishment the ECJ completed its case law on the cross-border transfer of the registered office of a company. Also included are judgments of the ECJ in the field of consumer contracts, product liability, harmonised labour law, the rights of passengers in the event of cancellation or delay of flights, and the protection of personal data. As in previous years, cases on the law of trademarks and on intellectual property provide another focus.

Christian Twigg-Flesner: Consolidation rather than Codification – or just Complication? – The UK’s Consumer Rights Act 2015

The Consumer Rights Act 2015 was adopted to simplify and consolidate legislation on consumer contracts. The Act only consolidates rules on conformity and associated remedies for goods, as well new rules on services and digital content, and the regulation of unfair terms. Beyond this, the Act contains provisions on consumer matters such as enforcement powers, collective actions under Competition Law, and letting agents and secondary ticketing platforms. Overall, the Act lacks a clear focus.

Written by Stephan Walter, Research Fellow at the Institute for German and International Civil Procedure Law, University of Bonn, Germany

Claims brought by creditors of Greek state bonds against Greece in connection with the 2012 haircut do not fall under the substantive scope of the Brussels Ibis Regulation because they stem from the exercise of public authority. Hence, they cannot be regarded as civil and commercial matters in the sense of Article 1(1) Brussels Ibis Regulation. This is the essence of the CJEU’s Kuhn judgment (of 15 November 2018, Case C-308/17, ECLI:EU:C:2018:911), which was already discussed on this blog.

In said blog post, it was rightly pointed out that the judgment could be nothing but a Pyrrhic victory for Greece. Not least the – now possible – application of national (sometimes exorbitant) jurisdictional rules was considered to have the potential to backfire. This was, however, only the case, if Greece was not granted immunity in the first place. In short: the fallout of the CJEU’s judgment was hardly predictable.

A recent decision rendered by the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH) introduces some clarity – at least with regard to litigation in Austria. The decision (of 22 January 2019, docket no. 10 Ob 103/18x) concerned the case that gave rise to the preliminary reference.

In a first step, the OGH held that Greece does indeed enjoy immunity from the Austrian jurisdiction. This is a major change of case law. Unlike the German Federal Court of Justice (Bundesgerichtshof, BGH), the OGH repeatedly held the opposite (most recently six days after (!) the CJEU’s Kuhn judgment in a decision of 21 November 2018, docket no. 6 Ob 164/18p). While, in principle, there is nothing wrong with changing the case law, it is somewhat astonishing that the OGH did this in a very superficial fashion (one sentence). In fact, the court merely backed up its claim with a reference to the CJEU’s Kuhn judgment, although this judgment was not concerned with the question of immunity but solely the substantive scope of the Brussels Ibis Regulation. Because of the severe consequences of the OGH’s new approach, it is incomprehensible that the OGH did not discuss why the CJEU’s holding applies to the issue of state immunity as well.

Ironically, the OGH declared itself – by virtue of section 42(3) of the Austrian Law on Jurisdiction (Jurisdiktionsnorm, JN) in conjunction with section 528(2) no. 2 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) – bound by the finding of the court of previous instance that Greece did not enjoy immunity because the court of second instance upheld said finding.

Consequently, the OGH examined if Austrian courts had international jurisdiction based on the Austrian autonomous rules on jurisdiction. According to section 99 JN, jurisdiction can be established by the presence of assets in Austria (comparable to section 23 German Code of Civil Procedure). However, the OGH declined jurisdiction based on section 99 JN because the claimant had not relied upon this head of jurisdiction during the court proceedings. Therefore, the OGH found that Austrian courts had no international jurisdiction and dismissed the claim. This reasoning is hardly convincing. It is true that Austrian courts are – in principle – bound by the statement of the claimant when they examine their jurisdiction (see section 41(2) JN) and that the claimant did not rely upon section 99 JN. However, up until now, the OGH always applied the Brussels Ibis Regulation to claims in connection with the haircut. The court never – not even in the preliminary reference – questioned the applicability of the Regulation. Hence, one is inclined to ask: why should a claimant rely on the autonomous rules on jurisdiction if it is standing case law that they do not apply? Why did the OGH not remit the matter to the lower instance court, giving the claimant at least the chance to rely on section 99 JN (or Austrian autonomous rules on jurisdiction in general)? Is this not a prime example of a denial of justice? Be that as it may, the court’s one-sentence (!) reasoning leaves at least a bitter taste.

What’s the bottom line? Thanks to the Kuhn judgment, Greece now enjoys immunity from Austrian jurisdiction regarding claims in connection with the 2012 haircut. Consequently, Austria’s (exorbitant) section 99 JN is out of the equation. Therefore, the OGH has turned Greece’s Pyrrhic victory in the CJEU’s Kuhn judgment into a clear victory. While the OGH’s reasoning is far from bulletproof, the door to the Austrian courts has closed.

The decision (in German) can be accessed here.

by Klaus Peter Berger, Cologne University

The Center for Transnational Law (CENTRAL) at Cologne University Faculty of Law has recently revised and updated TransLex, its free knowledge- and codification-platform on transnational commercial law, the New Lex Mercatoria.

The introductory text now contains a thorough and critical analysis of the historic Lex Mercatoria, including its doubtful existence during the Middle Ages with links to numerous historic documents of those times, https://www.trans-lex.org/the-lex-mercatoria-and-the-translex-principles_ID8.

New comparative law materials have been added to the TransLex-Principles, a collection of over 130 principles and rules of the New Lex Mercatoria, https://www.trans-lex.org/principles/of-transnational-law-(lex-mercatoria).

New documents have been added to the online archive of rare historic documents on alternative dispute resolution from the Bible and Koran to modern times, https://www.trans-lex.org/materials/of-transnational-law-(lex-mercatoria)#list_69.

The bibliograhy now contains over 1.000 entries, making it the largest online bibliography on transnational commercial law, https://www.trans-lex.org/biblio/of-transnational-law-(lex-mercatoria).

Global Private International Law is a new casebook, published by Edward Elgar and edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira, and Diego P. Fernandez Arroyo.

The publisher provided the following summary:

“Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora”.

Contributors include: F. Antunes Madeira da Silva, S. Archer, C. Avasilencei, G.A. Bermann, R. Bismuth, L. Bíziková, S. Bollée, J. Bomhoff, S. Brachotte, A. Brandão de Oliveira, H. Buxbaum, L. Carballo Piñeiro, C. Chalas, D. Coester-Waltjen, G. Cordero-Moss, S. Corneloup, F. Costa Morosini, G. Cuniberti, J. d’Aspremont, J. Daskal, S. Dezalay, R. Fentiman, D.P. Fernández Arroyo, T. Ferrando, S. Fulli-Lemaire, U. Grusic, H. Harata, L. Hennebel, J. Heymann, P. Kinsch, H. Kupelyants, K. Langenbucher, F. Latty, O. Le Meur, G. Lewkowicz, F. Licari, F. Marchadier, T. Marzal, R. Michaels, A. Mills, H. Muir Watt, N. Najjar, V.H. Pinto Ido, E. Pataut, D. Restrepo-Amariles, D. Rosenblum, C. Salomão Filho, M. Sanchez-Badin, P. Schiff Berman, J. Sgard, D. Sindres, E. Supiot, C. Thomale, K. Trilha, H. van Loon, J. Verhellen, M. Weidemaier, M. Wells-Greco

The table of content is available here.

More information is available here.

The Experts’ Group on Parentage / Surrogacy of the Hague Conference on Private International Law (HCCH) has answered in the affirmative.

At its fifth meeting earlier this year, the Experts’ Group agreed that it would be feasible to develop both:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements (abbreviated as “ISA”).

As announced on the HCCH website, the Experts’ Group will recommend to the governance body of the HCCH (i.e. Council on General Affairs and Policy) during its meeting in March 2019 that “work continue with a view to preparing proposals for inclusion in future instruments relating to the recognition of judicial decisions.” The Council will have the last word.

In my opinion, there are many reasons for drafting two separate instruments, which may range from legal to political as these are very sensitive topics. One that particularly struck me relates to the indirect grounds of jurisdiction when considering the recognition of such decisions:

“Most Experts concluded that the indirect grounds previously identified in the context of general legal parentage would not work in ISA cases, and instead supported the State of birth of the child as the primary connecting factor in an ISA case as this would provide certainty and predictability. A qualifier to that connecting factor (such as the habitual residence of the person giving birth to the child) might be necessary to guarantee sufficient proximity, as well as to prevent and combat trafficking of persons and law evasion.” See also para 25 of the Report.

Please note that these instruments would deal with the recognition and not with the enforcement of foreign judicial decisions given the nature of decisions on legal parentage. See in contrast my previous post on the HCCH draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

The HCCH news item is available here.

The full report is available here.

Thanks to Daniel Chan for this post.

The Oral Rounds of the Pax Moot 2019 has been definitively set at May 24th and May 25th, the detailed schedule can be found on the website (www.paxmoot.com). As a further clarification, the deadline for registration has been extended to March 31st due to organizational requirements for some participating universities. However, we encourage teams to register as early as possible for the benefit of the competition.

We are also happy to announce that our partner JUDGTRUST have been very generous to provide financial assistance to 8 participating teams this year. This program will cover the travel and lodging costs, but teams will still have to pay 200 Euros per team of registration fees. All teams are eligible to apply for this program however the final decision is reserved for JUDGTRUST. For teams who wish to apply, please send an email indicating briefly your situation to info@paxmoot.com.

Updated Rule and Procedures have also been uploaded on the website, if there are any further clarifications required, please don’t hesitate to contact us. We look forward to welcoming you in the Hague!

Sincerely,

PAX Moot Team

Professor Dr Peter Mankowski is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work at the Chair for Civil Law, Comparative Law and International Private and Procedural Law, University of Hamburg, Germany, on a part-time basis (50%) as of 1 June 2019.

The successful candidate holds a first law degree (ideally the First German State Examination) and is interested in civil law and international private and procedural law. A very good command of German and English is expected; additional language skills are an advantage.

The fellow will be given the opportunity to conduct his/her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. Responsibilities include research and teaching (with as independent teaching obligation of 2,25 hours per week during term time).

If you are interested in this position, please send your application (cover letter; CV; and relevant documents and certificates, notably university transcripts and a copy of law degree) to

Universität Hamburg
Fakultät für Rechtswissenschaft
Seminar für Internationales Privat- und Prozessrecht
Prof. Dr. Peter Mankowski
Rothenbaumchaussee 33
20148 Hamburg

by 27 March, 2019.

Further information can be found here.

On October 10-13 2019, the Mouvement Jeune Notariat will host a conference on the notarial practice of International Law (the official title reads « L’International : Le guide pratique ») which will take place in Lisbon.

The conference will deal with the international aspects of the notarial practice of estate planning which includes conflict of laws in matter of matrimonial property regime, succession, divorce, and trusts to the extend of the practice of international tax law in such matters.

The programme and registration form (both in French) can be accessed here and here. Further information is available here.

Almost a year ago, the European Court of Human Rights issued a very interesting judgment on the interpretation of Article 8 ECHR, involving a couple (husband Greek, spouse Romanian) living with their two children in the city of Ioannina, Greece. The case found no coverage in Greece (and elsewhere), probably because it was not translated in English. Crucial questions related to the operation of the 1980 Hague Child Abduction Convention and the Brussels II bis Regulation were elaborated by the Court, which ruled that Greek authorities did not violate Article 8 ECHR.

Case M.K. v. Greece (application no. 51312/16), available in French

A comment on the judgment in English has been posted by Sara Lembrechts – Researcher at University of Antwerp & Policy Advisor at Children’s Rights Knowledge Centre (KeKi), Belgium.

 

Prof. Dr. Dr. h.c. Burkhard Hess and Ms. Martina Mantovani (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) recently posted a new paper in the MPILux Research Paper Series, titled Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation.

The paper will appear in F. Ferrari & D. Fernandez Arroyo (eds.), The Continuing Relevance of Private International Law and Its Challenges (Elgar, 2019).

Here is an overview provided by the authors.

“The paper analyses the legal framework governing the exercise of civil jurisdiction over claims brought before European courts by victims of mass torts committed outside the jurisdiction of European States.

The first part of the paper focuses on the private international law doctrine of the forum of necessity, often used by foreign plaintiffs as a “last resort” for accessing a European forum. Ejected from the final version of the Brussels Ibis Regulation and thus arguably unavailable in cases involving EU-domiciled defendants, this doctrine has recently been subjected, in domestic case law, to formalistic interpretations which further curtail its applicability vis-à-vis non-EU domiciled defendants. The Comilog saga in France and the Naït Liman case in Switzerland are prime examples of this approach.

Having taken stock of the Naït Liman judgment of the Grand Chamber of the European Court of Human Rights, which leaves an extremely narrow scope for reviewing said formalistic interpretations under article 6 ECHR, the second part of the paper assesses alternative procedural strategies that foreign plaintiffs may implement in order to bring their case in Europe.

A first course of action may consist in suing a non-EU domiciled defendant (usually a subsidiary) before the courts of domicile of a EU domiciled co-defendant (often the parent company). Hardly innovative, this procedural strategy is recurrent in recent case law of both civil law and common law courts, and allows therefore for a comparative assessment of the approach adopted by national courts in dealing with such cases. Particular attention is given to the sometimes-difficult coexistence between the hard-and-fast logic of the Brussels Ibis Regulation, applicable vis-à-vis the anchor defendant, and the domestic tests applied for asserting jurisdiction over the non-domiciled co-defendant, as well as to the ever-present objections of forum non conveniens and of “abuse of rights”.

A second course of action may consist in suing, as a single defendant, either a EU domiciled contractual party of the main perpetrator of the abuse (as it happened in the Kik case in Germany or in the Song Mao case in the UK), or a major player on the international market (e.g. the RWE case in Germany). In these cases, where the Brussels Ibis Regulation and its hard-and-fast logic may deploy their full potential, the jurisdiction of the seised court is undisputable in principle and never disputed in practice.

Against this backdrop, the paper concludes that, where the Brussels Ibis Regulation is triggered, establishing jurisdiction and accessing a forum is quite an easy and straightforward endeavor. Nevertheless, the road to a judgment on the merits remains fraught with difficulty for victims of an extraterritorial harm.  Firstly, there are several other procedural hurdles, concerning for example the admissibility of the claim, which may derail a decision on the merits even after jurisdiction has been established. Secondly, the state of development of the applicable substantive law still constitutes a major obstacle to the plaintiff’s success. In common law countries, where the existence of a “good arguable case” shall be proven already at an earlier stage, in order to establish jurisdiction over the non-EU domiciled defendant, the strict substantive test to be applied for establishing a duty of supervision of the parent company, as well as its high evidentiary standard, have in most cases determined to the dismissal of the entire case without a comprehensive assessment in the merits, despite the undisputable existence of jurisdiction vis-à-vis the domiciled parent company. In civil law countries, the contents of the applicable substantive law, e.g. the statute of limitations, may finally determine an identical outcome at a later stage of the proceedings (as proven by the extremely recent dismissal of the case against Kik).”

In Agostinho da Silva Martins v Dekra Claims Services Portugal SA (C-149/18), between Mr Agostinho da Silva Martins, who suffered damages in a car accident, and the insurance company Dekra Claims Services Portugal SA, the CJEU was called to rule on two different issues of qualification: one related to the interpretation of Article 16 of the Rome II Regulation on overriding mandatory provisions and the other related to interpretation of Article 28 of Directive 2009/103 on protection of victim in case of a motor vehicle accident.

Regarding the overriding mandatory provisons under the Rome II Regulation, the CJEU refers to the definition in Article 9(1) of the Rome I Regulation and reasons that in order to qualify a national rule on statutory limitation period as an overriding mandatory the national court has to be satisfied that there exist “particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable”. The relevant part of the CJEU holding uses careful phrasing suggesting restrictive interpretation of overriding mandatory rules: a rule

cannot be considered to be an overriding mandatory provision, […] unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable.

Regarding the conflict of law nature of Article 28 of Directive 2009/103, which regulates the Member States’ obligation to provide measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected, the CJEU states that this is not the conflict-of-law provision and that, consequently, it does not take precedence over the Rome II Regulation under Article 27 of the latter.

Written by Prof. Maarit Jänterä-Jareborg, Uppsala University, Sweden

On 1 January 2019, new restrictions came into force in Sweden’s private international law legislation in respect of marriages validly concluded abroad. The revised rules are found in the Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship, Chapter 1 § 8a, as amended by SFS 2018:1973. The content of the new legislation is, briefly, the following: no marriage shall be recognised in Sweden if the spouses or either one of them was under the age of 18 years at the time of the marriage. By way of exception, this rule may be set aside once both parties are above 18 years of age, if there are exceptional reasons to recognise the marriage. 

The law reform is in line with a recent European trend, carried out in e.g., Germany, Denmark and Norway, to protect children from marrying and, one could claim, to ‘spare’ people who married as a child (or with a child) from their marriage.[1] The requirement of 18 years of age has been introduced not only as the minimum marriage age for concluding a marriage in the State’s own territory, i.e., as a kind of an internationally mandatory rule, but also as a condition for the recognition of a foreign marriage.

The new Swedish legislation constitutes perhaps the most extreme example on how to combat the phenomenon of child marriages. The marriage’s invalidity in Sweden does not require a connecting factor to Sweden at the time of the marriage, or that the spouses are underage upon arrival to Sweden. Theoretically, the spouses may arrive to Sweden decades after marrying, and find out that their marriage is not recognised in Sweden. The later majority of the persons involved does not repair this original defect. The only solution, if both (still) wish to be married to each other, will be to (re)marry!

It remains to be seen whether the position taken in the Government Bill, claiming that the new law conforms with EU primary law and the ECHR, is proportionate and within Sweden’s margin of appreciation, will be shared by the CJEU and the ECtHR. Swedish Parliament, in any case, shared this view and did not consider that EU citizens’ free movement within the EU required exempting underage spouses from the rule of non-recognition. The new law applies to marriages concluded as of 1 January 2019. It does not affect the legal validity of marriages concluded before that date.

To understand the effects of the Swedish law reform, the following needs to be emphasised. One of the special characteristics of Swedish family procedure law is that is does not provide for decrees on marriage annulment or the invalidity of a marriage. Divorce and death are in Sweden the only ways of dissolving a marriage! This position has applied since 1 January 1974, when the right to immediate divorce became the tool to dissolve any marriage concluded in Sweden against a legal obstacle to the marriage, e.g., a spouse’s still existing marriage or duress to marry. A foreign marriage not recognised in Sweden is, however, invalid directly by force of Swedish private international law legislation. It follows that it cannot be dissolved by divorce – as it does not exist as a marriage in the eyes of Swedish law. It does not either produce any of the legal effects of marriage, such as the right to maintenance or property rights. It does not qualify as a marriage obstacle, with the result that both ‘spouses’ are free to marry each other or anyone else.

What, then, is the impact of the legislation’s exception enabling, in exceptional circumstances, to set aside the rule of non-recognition? This is an assessment which is aimed to take place ad hoc,usually in cases where the ‘marriage’s’ validity is of relevance as a preliminary issue, whereby each competent authority makes an independent evaluation. It is required that non-recognition must produce exceptional hardships for the parties (or their children). The solution is legally uncertain and unpredictable and has been subject to heavy criticism by Sweden’s leading jurists.

The 2019 law reform follows a series of reforms carried out in Sweden since 2004. According to the established main rule, a marriage validly concluded in the State of celebration or regarded as valid in States where the parties were habitually resident or nationals at the time of the marriage, is recognised in Sweden, Chapter 1 § 7 of the 1904 Act. Since a law reform carried out in 2004, an underage marriage is, nevertheless, invalid directly by force of law in Sweden, if either spouse had a connection to Sweden through habitual residence or nationality at the time of the marriage. (The 2019 law reform takes a step further, in this respect.) Recognition can, in addition, be refused with reference to the ordre publicexception of the 1904 Act, Chapter 7 § 4. The position taken in Swedish case law is that ordre publiccapturesanymarriage concluded before both parties were 15 years of age. Forced marriages do not qualify for recognition in Sweden, since the 2004 reform. The same applies to marriages by proxy, since 2014, but only on condition that either party to the marriage had a connection to Sweden through habitual residence of nationality at the time of the marriage.

The 2019 legislation differs in several respects from the proposals preceding it, for example the proposed innovation of focusing on the underage of a spouse at the time of either spouse’s arrival to Sweden.  A government-initiated inquiry is currently pending in Sweden, the intention being to introduce rules on non-recognition of polygamous marriages validly concluded abroad.

[1] See M. JÄNTERÄ-JAREBORG, ‘Non-recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 “Refugee Crisis”’, in: G. DOUGLAS, M. MURCH, V. STEPHENS (eds), International and National Perspectives on Child and Family Law, Essays in Honour of Nigel Lowe, Intersentia 2018, pp. 267-281.

Since Conflict of Laws became a subject section at the Society of Legal Scholars in 2017, it has been part of the Society’s annual conference. This year’s conference, which will be held in Preston, UK, from 3 September to 6 September (right before the Journal of Private International Law Conference in Munich), is no exception and the organiser’s of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers:

SLS Conflict of Laws Section: Call for Papers and Panels for 2019 SLS Annual Conference at the University of Central Lancashire, Preston

This is a call for papers and panels for the Conflict of Laws section of the 2019 SLS Annual Conference to be held at the University of Central Lancashire in Preston from Tuesday 3rd September – Friday 6th September.  This year’s theme is ‘Central Questions About Law’.

This marks the third year of the Conflict of Laws section, and we are hoping to build on the successful meetings in Dublin and London.

The Conflict of Laws section will meet in the first half of the conference on Tuesday 3rd and Wednesday 4th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside one session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.

If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts. We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

Please submit your paper abstract or panel details by 11:59pm UK time on Monday 18th March 2019.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1028/submission – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.

The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.

To be eligible for the Best Paper Prize:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11.59pm UK time on Monday 26th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 14th June in order to secure their place within the programme, though please do let us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose or deliver a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Lancashire.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford
Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)

Corruption continues to cast a shadow over investment law. When allegations of corruption arise in an investment dispute, the tribunal faces the difficult task of deciding whether (and how) to penalize the responsible party. It must assess the often-limited evidence and then craft an appropriate remedy. The legal and practical questions this raises remain highly contested. On Tuesday, February 19, 2019, the ILA American Branch Investment Law Committee and the Georgetown International Arbitration Society are hosting an evening conference to discuss these questions, bringing together academic and non-academic perspectives.

Panel 1: What is sufficient proof of corruption?
• Aloysius Llamzon, Senior Associate, King & Spalding
• Jason Yackee, Professor, University of Wisconsin
• Meriam Al-Rashid, Partner, Dentons

Panel 2: What is the right response when corruption is found?
• Lucinda Low, Partner, Steptoe
• Arif H. Ali, Partner, Dechert

Opening and closing:
• David L. Attanasio, Co-Chair, ILA American Branch Investment Law Committee; Associate, Dechert
• Malika Aggarwal, Georgetown International Arbitration Society

Location:
Dechert
1900 K Street, NW
Washington, DC 20006

When:
Tuesday, February 19, 2019, with registration from 4:45 pm and the program commencing at 5:00 pm.

Space is limited, so please RSVP as soon as possible here