Conflictoflaws

Over the last few years, litigation in European courts against gross human rights violations and widespread environmental disasters has intensified. Recent case law shows that victims domiciled in third States often attempt to sue the local subsidiary and/or its parent company in Europe, which corresponds to the place where the latter is seated. In light of this, national courts of the EU have been asked to determine whether the parent company located in a Member State may serve as an ?anchor defendant? for claims against its subsidiary – sometimes with success, sometimes not:

For example, in Okpabi & Ors v Royal Dutch Shell Plc & Anor, the English High Court, Queen’s Bench Division, by its Technology and Construction Court, decided that it had no international jurisdiction to hear claims in tort against the Nigerian subsidiary (SPDC) of Royal Dutch Shell (RDC) in connection with environmental and health damages due to oil pollution in the context of the group’s oil production in Nigeria. To be more specific, Justice Fraser concluded that the Court lacked jurisdiction over the action, inasmuch as the European parent company did not owe a duty of care towards the claimants following the test established in Caparo Industries Plc v Dickman. Under the Caparo-test, a duty of care exists where the damage was foreseeable for the (anchor) defendant; imposing a duty of care on it must be fair, just, and reasonable; and finally, there is a certain proximity between the parent company and its subsidiary, which shows that the first exercises a sufficient control over the latter.

On 14 February 2018, the Court of Appeal validated the first instance Court’s reasoning by rejecting the claimants appeal (the judgment is available here). In a majority opinion (Justice Sales dissenting), the second instance Court confirmed that the victims’ claims had no prospect of success. Nevertheless, Justice Simon provided a different assessment of the proximity requirement: after analysing the corporate documents of the parent company, he observed that RDS had established standardised policies among the Shell group. According to the Court, however, this did not demonstrate that RDS actually exercised control over the subsidiary. At paragraph 89 of the judgment, Justice Simon states that it is “important to distinguish between a parent company which controls, or shares control of, the material operations on the one hand, and a parent company which issues mandatory policies and standards which are intended to apply throughout a group of companies (…). The issuing of mandatory policies plainly cannot mean that a parent has taken control of the operations of a subsidiary (…) such as to give rise to a duty of care”. Therefore, the Court of Appeal set a relatively high jurisdictional threshold that will be difficult for claimants to pass in the future.

Conversely, in Lungowe v Vedanta, a case that involved a claim against a parent company (Vedanta) seated in the UK and its foreign subsidiary for the pollution of the Kafue River in Zambia, as well as the adverse consequences of such an occurrence on the local population, the Court of Appeal concluded that there was a real issue to be tried against the parent company. Moreover, the Court considered that the subsidiary was a necessary and proper party to claim and that England and Wales was the proper place in which to bring the claims. Apparently, this case involved greater proximity between the parent company and its subsidiary compared to Okpabi. In particular, the fact that Vedanta hold 80% of its subsidiary’ shares played an important role. The same can be said as regards the degree of control of Vedanta’s board over the activities of the subsidiary (see the analysis of Sir Geoffrey Vos at paragraph 197 of the Okpabi appeal).

Unsatisfied with the current landscape, some States adopted –or are in the process of adopting– legislations that establish or reinforce the duty of care or vigilance of parent companies directly towards victims. In particular, France adopted the Duty of Vigilance Law in 2017, according to which parent companies of a certain size have a legal obligation to establish a vigilance plan (plan de vigilance) in order to prevent human rights violations. The failure to implement such a plan will incur the liability of parent companies for damages that a well-executed plan could have avoided. In Switzerland, a proposal of amendment of the Constitution was recently launched, the goal of which consists in reinforcing the protection of human rights by imposing a duty of due diligence on companies domiciled in Switzerland. Notably, the text establishes that the obligations designated by the proposed amendment will subsist even where conflict of law rules designate a different law than the Swiss one (overriding mandatory provision). Finally, some other States, such as Germany, propose voluntary measures through the adoption of a National Action Plan, as this was suggested by the EU in its CSR Strategy.

For further thoughts see Matthias Weller / Alexia Pato, “Local Parents as ‘Anchor Defendants’ in European Courts for Claims against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends” forthcoming in Uniform Law Review 2018, Issue 2, preprint available at SSRN.

Dr. Philipp M. Reuß (University of Munich) is organizing a serialized online symposium on the private international law of parentage and filiation. The conferences will be held in German and feature a list of highly distinguished experts. The first event will take place on 19 April 2018, at 2 p.m. (local time). For the programme and further information on registration, please click here.

Today, the European Council has published a document of guidelines with a view to the opening of negotiations on the overall understanding of the framework for the future relationship EU-UK. In our field of interest those are the relevant ones

10. The future partnership should include ambitious provisions on movement of natural persons, based on full reciprocity and non-discrimination among Member States, and related areas such as coordination of social security and recognition of professional qualifications. In this context, options for judicial cooperation in matrimonial, parental responsibility and other related matters could be explored, taking into account that the UK will be a third country outside Schengen and that such cooperation would require strong safeguards to ensure full respect of fundamental rights.

Judicial cooperation in civil matters is not mentioned.

Guidelines 7 and 15 refer to the CJEU:

7. The European Council further reiterates that the Union will preserve its autonomy as regards its decision-making, which excludes participation of the United Kingdom as a third-country in the Union Institutions and participation in the decision-making of the Union bodies, offices and agencies. The role of the Court of Justice of the European Union will also be fully respected.

15. Designing the overall governance of the future relationship will require to take into account:

iii) the requirements of the autonomy of the EU legal order, including the role of the Court of Justice of the European Union, notably as developed in the jurisprudence.

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

From 13 to 15 March 2018, Members of the HCCH gathered in The Hague for the meeting of the Council on General Affairs and Policy. The Council was attended by 171 participants, representing 63 Members, one REIO and observers from four IGOs / eight NGOs.

The Council reviewed the work of the Organisation carried out during the previous year and charted the course for future work.

It recognised the very good progress made on the Judgments Project and mandated the Permanent Bureau to continue preparations for a Fourth and final Special Commission meeting in May 2018. The Council asked the Permanent Bureau to make arrangements for the preparation of a Diplomatic Session in mid-2019.

The Council also welcomed the work of the Experts’ Group on Parentage / Surrogacy and instructed the Permanent Bureau to convene two more meetings of this group. The Experts’ Group will report to Council at its 2019 Meeting.

The Council invited the Members to provide the Permanent Bureau with comments and a list of additional issues to be addressed in the finalised Report on the Tourists and visitors Project. Following a meeting of an Experts’ Group, the finalised Report of the Consultant and the Experts’ Group’s Conclusions and Recommendations will be submitted to the Members before the end of 2018, for consideration by the Council at its 2019 Meeting.

The Draft Practical Guide to Family Agreements under the Hague Conventions will be submitted to the Council at its meeting in 2019.

Furthermore, the Council mandated its Chair to advise the Netherlands Standing Government Committee on Private International Law that it recommends the reappointment of the Secretary General for a further term of five years.

The full Conclusions & Recommendations are available in English and French.

For further information, see https://www.hcch.net/en/governance/council-on-general-affairs.

Please note that the meetings above-mentioned are open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

It is not quite orthodox to follow on oneself’s post, but I decided to make it as a short answer to some emails I got since yesterday. I do not know why Article 63 has not been agreed upon, although if I had to bet I would say: too complicated a provision. There is much too much in there, in a much too synthetic form; per se this does not necessarily lead to a bad outcome , but here… it looks like, rather. Just an example: Article 63 refers sometimes to provisions, some other to Chapters, and some to complete Regulations. Does it mean that “provisions regarding jurisdiction” are just the grounds for jurisdiction, without the lis pendens rules (for instance), although they are in the same Chapter of Brussels I bis?

One may also wonder why a separate rule on the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period in civil and commercial matters (Regulation 1215/2912) and maintenance (Regulation 4/2009): does the reference to “provisions regarding jurisdiction” not cover them already? Indeed, it may just be a reminder for the sake of clarity; but taken literally it could lead to some weird conclusions, such as the Brussels I Regulation taken preference over the 2005 Hague Convention “in the United Kingdom, as well as in the Member States in situations involving the United Kingdom”, whatever these may be. Of course I do not believe this is correct.

At any rate, for me the most complicated issue lies with the Draft Withdrawal Agreement provisions regarding time. As I already explained yesterday, according to Article 168 “Parts Two and Three, with the exception of Articles 17a, 30(1), 40, and 92(1), as well as Title I of Part Six and Articles 162, 163 and 164, shall apply as from the end of the transition period”, fixed for December 31st, 2020 (Article 121). In the meantime, ex Article 122, Union Law applies, in its entirety (for no exception is made affecting Title VI of Part Three). What are the consequences? Following an email exchange with Prof. Heredia, Universidad Autónoma de Madrid, let’s imagine the case of independent territorial insolvency proceedings – Article 3.2 Regulation 2015/848: if opened before December 31st, 2020, they shall be subject to the Insolvency Regulation. If main proceedings are opened before that date as well, the territorial independent proceedings shall become secondary insolvency proceedings – Article 3.4 Insolvency Regulation. If the main proceedings happen to be opened on January 2nd, 2021, they shall not – Article 63.4 c) combined with Article 168 Draft Withdrawal Agreement (I am still discussing Articles 122 and 168 with Prof. Heredia).

Another not so easy task is to explain Article 63.1 in the light of Articles 122 and 168. The assessment of jurisdiction for a contractual claim filed before the end of the transition period will be made according to Union Law, if jurisdiction is contested or examined ex officio before December 31st, 2020; and according  to the provisions regarding jurisdiction of Regulation 1215/2012 (or the applicable one, depending on the subject matter, see Article 63.1 b, c, d) Draft Withdrawal Agreement, if it -the assessment- happens later. Here my question would be, what situations does the author of the Draft have in mind? Does Article 63.1 set up a kind of perpetuatio iurisdictionis rule, so as to ensure that the same rules will apply when jurisdiction is contested at the first instance before the end of the transition period, and on appeal afterwards (or even only afterwards, where it is possible)? Or is it a rule to be applied at the stage of recognition and enforcement where the application therefor is presented after the end of the transition period (but wouldn’t this fall under the scope of Article 63.3)?

That is all for now – was not a short answer, after all, and certainly it is not the end of it.

As we have already announced on this blog, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop on Friday, 13 April 2018, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). An updated flyer with further information has just been released here. The project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen) and Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, namely Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. Knut Messer (judge at the Central German Court for European Orders for Payment, Berlin), Dr. Bartosz Sujecki (Amsterdam), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Participation is free of charge, but requires a registration.

Today, the European Union and the United Kingdom have reached an agreement on the transition period for Brexit: from March 29 of next year, date of disconnection, until December 31, 2020. The news are of course available in the press, and the Draft Withdrawal Agreement of 19 March 2018 has already been published… coloured: In green, the text is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks. In yellow, the text is agreed on the policy objective but drafting changes or clarifications are still required. In white, the text corresponds to text proposed by the Union on which discussions are ongoing as no agreement has yet been found. For ongoing judicial cooperation in civil and commercial matters (Title VI of Part III, to be applied from December 31, 2020: see Art. 168), this actually means that subject to “technical legal revisions”, the following has been accepted:

• Art. 62: The EU and the UK are in accordance as to the application by the latter (no need to mention the MS for obvious reasons) of the Rome I and Rome II regulations to contracts concluded before the end of the transition period, and in respect of events giving rise to damage, and which occurred before the end of the transition period.
• Art. 64: There is also agreement as to the handling of ongoing cooperation procedures, whereby requests for service abroad, the taking of evidence and in the frame of the European Judicial Network are meant.
• Art. 65: There is agreement as well as to the way Council Directive 2003/8/EC (legal aid), Directive 2008/52/EC on certain aspects of mediation in civil and commercial matter, and Council Directive 2004/80/EC (relating to compensation to crime victims) will apply after the transition period.

Conversely, no agreement has been found regarding Art. 63, i.e., how to deal with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities (but whatever is agreed will also be valid in respect of the provisions of Regulation (EU) No 1215/2012 as applicable by virtue of the agreement between the European Community and the Kingdom of Denmark, see Art. 65.2, in green).

In the light of this it may  be not really worth to start the analysis of the Title as a whole: Art. 63 happens to be the less clear provision. Some puzzling expressions such as “as well as in the Member States in situations involving the United Kingdom” are common to approved texts, but may change in the course of the technical legal revision. So, let’s wait and see.

NoA: Another relevant provision agreed upon – in green-  is Art. 124, Specific arrangements relating to the Union’s external action. Title X of Part III, on pending cases and new cases before the CJEU, remains in white.

And: On the Draft of February 28, 2018 see P. Franzina’s entry here. The Draft was transmitted to the Council (Article 50) and the Brexit Steering Group of the European Parliament; the resulting text was sent to the UK  and made public on March 15.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:

Wie kann der Zugang zu ausländischem Recht in Zivilverfahren verbessert werden?
Michael Stürner

ZVglRWiss 117 (2018) 1-23

[How can we improve the access to foreign law in civil proceedings?]

In civil disputes quite frequently foreign law applies. Under German law, both the process of establishment and the application of foreign law rules lie within the responsibility of the court. However, there is only little solid knowledge about the practical problems in the process of establishing the content of foreign law. The existing legal instruments to establish foreign law are partly deficient. Above all there is a lack of readily available information channels. On an empirical basis the present paper identifies possible solutions.

__________

Welches Internationale Privatrecht wollen wir im 21. Jahrhundert?
Federico F. Garau Sobrino

ZVglRWiss 117 (2018) 24-49

[What kind of Private International Law do we want in the 21st century?]

A substantial part of the current European and conventional Private International Law [PIL] rules based on EU law or International treaties is characterized by abstruse wording, what is caused by a controversial, far-from-reality legislative technique. Many of these rules are unintelligible to the average legal mind. We are confronted with highly specialized PIL norms, created by and for specialists, but alien to everyday life and inaccessible to law practitioners, who often do not understand them nor know how to apply them. Private International Law does no longer address the needs of society; the question whether it provides a solution to legal cross-border problems, or whether it has become “the problem” itself, is a legitimate one.

___________

Das internationale Datenprivatrecht: Baustein des Wirtschaftskollisionsrechts des 21. Jahrhunderts
–Das IPR der Haftung für Verstöße gegen die EU-Datenschutzgrundverordnung–
Jan D. Lüttringhaus

ZVglRWiss 117 (2018) 50-82

[Private International Law of Data Protection: A Crucial Building Block of International Business Law in the 21st Century]

“Data is just like crude [oil]. It’s valuable, but if unrefined it cannot really be used”. As of May 18, 2018, the General Data Protection Regulation (EU) 2016/679 (GDPR) provides a European framework that regulates the refining of data as the “new oil”. In the digital age, data may not only be transferred across borders in a split second but, more often than not, data processing already takes place abroad. Against this backdrop, the GDPR reaches far beyond the borders of the EU Member States. This extraterritorial dimension raises a multitude of questions relating to both international data protection law and private international law. Conflict-of-law issues equally arise in intra-EU cases: For example, illegal data processing gives rise to a claim for damages under the GDPR. At the same time, the Regulation does not contain any rules on, for instance, fault, the calculation of damages or the limitation period. Thus, despite the autonomous nature of the claim under the GDPR, the applicable national law must still be determined in cross-border scenarios.

Moreover, standard contract terms may also lie in the focus of both conflict of laws and data protection law, e.g., when determining whether data processing is necessary for the performance of a contract or whether the data subjects’ pre-formulated consent is valid. Generally speaking, various preliminary questions may arise in the areas of conflict of laws and international administrative law given that the GDPR provides only an incomplete framework that often relies on and has to be complemented by national law.

The very recent ECJ Schrems-case illustrates that data protection litigation is often international by nature. In light of this, the GDPR also contains rules on jurisdiction which have to be reconciled with the Brussels Ibis Regulation. Finally, as the GDPR paves the way for national instruments on collective redress in data protection cases, the international dimension of these actions must equally be examined.

A new book co-edited by Prof. F.J. Zamora Cabot and M.C. Marullo has just been published in the field of human rights and business by the Italian publisher house Editoriale Scientifica, as part of the collection  “La ricerca del diritto nella comunità internazionale”. The diversity of the approaches of the contributions – constitutional law, International Public Law, investment arbitration, Procedural Law, Private International Law-, makes it worth for specialists in the different areas.  The index and Foreword can be looked up here.

A saga that has kept Malaysians engaged for years has finally founds its conclusion. A woman, named (rather improbably, at least for European observers) Indira Gandhi, was fighting with her ex husband over custody. The ex-husband had converted to Islam and had extended the conversion to their three children, with the consequence that the Syariah courts gave him sole custody. What followed was a whole series of court decisions by civil courts on the one hand and Syariah courts on the other, focusing mainly on the jurisdictional question which set of courts gets to decide matters of religious status and which law—Islamic law or civil law—determines the question. The Malaysian Federal Court now quashed the conversion as regards the children, thereby claiming, at least for children, a priority of the Constitution and the jurisdiction of civil courts.

Although the case is mostly discussed in the context of religious freedom and (civil) judicial review, it also raises core issues of conflict of laws. Malaysia is a country with an interpersonal legal system, which leaves jurisdiction over certain matters of Islamic law to the Syariah courts. Indira Gandhi’s ex-husband here used this system, effectively, for a form of forum shopping: converting to Islam enabled him, ostentatiously, to opt into a system more favorable to his own situation. The background, from the perspective of conflict of laws, is that the decisive connecting factor, namely a person’s religion, is open to manipulation in a way in which other connecting factors are not. According to Article 121 of the Federal Constitution, the civil courts have no jurisdiction over matters of the Syariah Courts. On the other hand, Art. 12(4) of the Constitution provides that a minor’s religion is determined by his parent or guardian, a provision the Syariah Courts neglected here. Letting the Constitution trump leads to a desirable result in this case, but it does not, by itself, resolve the underlying conflict-of-laws issues. Here, as in comparable situations, the doctrinal problem appears to lie first in the issue of unilateral determination of personal status and second in a conflation of issues of jurisdiction and applicable law.

The case is Indira Gandhi v. Pengarah Jabatan Agama Islam Perak u.a., [2018] 1 LNS 86 (Federal Court of Malaysia); it is available here. A short summary is here,  another one, including a useful timeline of events, is here. For a very helpful analysis of the case and its background and implications by Jaclyn L. Neo, focusing especially on questions of jurisdiction and judicial review, see here.  A longer discussion by Dian A.H. Shah focuses also on two other cases and more broadly on the issues of religious freedom: Dian A.H. Shah, Religion, conversions, and custody: battles in the Malaysian appellate courts, in  Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Andrew Harding/Dian A.H. Shah eds., 2018). The affair is also discussed in Yvonne Tew‘s article ‘Stealth Theocracy,’ which is forthcoming with the Virginia Journal of International Law.

Cuadernos de Derecho Transnacional, vol. 10, nr. 1, has just been released. Cuadernos publishes research papers on private international law, uniform law and comparative private law twice a year (March and October). The journal accepts manuscripts in all main European languages (to submit a paper click here).

The complete number as well as each single contribution can be accessed and downloaded  for free.

On 11 May 2018 the Department of Italian and Supranational Public Law of the University of Milan will host a conference  on Punitive Damages and European Private International Law: State of the Art and Future Developments, in cooperation with the Interest Group on Private International law of the Italian Society of International Law and with the Rivista di diritto internazionale privato e processuale.

The conference takes inspiration from a recent revirement of the Italian Corte di Cassazione (Cass., S.U., 5 July 2017, No 16601) and aims at analysing the private international issues involved by the recognition of  punitive damages within European legal orders.

Speakers and discussants include:

• Giulio Ponzanelli (Università cattolica del Sacro Cuore)
• Lotte Meurkens (Maastricht University)
• Pietro Franzina (University of Ferrara)
• Chiara Tuo (University of Genova)
• Amélie Skierka (Wilmer Hale LLP)
• Antonio Leandro (University of Bari)
• Astrid Stadler (Universität Konstanz)
• Olivera Boskovic (Université Paris Descartes)
• Alex Mills (University College London)
• Giacomo Biagioni (University of Cagliari)
• Cedric Vanleenhove (Ghent University)
• Wolfgang Wurmnest (Universität Augsburg)
• Ornella Feraci (University of Siena)

The complete programme is available here.

Admission is free. Participants are kindly asked to register by 4 May 2018 here.

For information please contact conference.pil.milan@gmail.com.

A brief update on our previous post regarding the approval of the establishment of the Netherlands Commercial Court by the House of Representatives (Tweede Kamer). The bill is now scheduled for rubber-stamping by the Senate (Eerste Kamer) on 27 March 2018. This makes the kick-off date of 1 July 2018 realistic.

We believe that this court will strengthen international commercial complex litigation in the Netherlands, and it offers business litigants an alternative to arbitration and high quality commercial courts in other countries. See also (for Dutch readers) Eddy Bauw and Xandra Kramer, ‘Commercial Court’ is uitkomst voor complexe internationale handelszaken, Het Financieele Dagblad, 11 October 2017.

More news will follow soon.

Our previous post:

(PhD candidate, postdoc researcher and PI ERC project Building EU Civil Justice)

Following up on our previous post, asking which international commercial court would be established next, the adoption of the proposal for the Netherlands Commercial Court by the House of Representatives (Tweede Kamer) today answers the question. It will still have to pass the Senate (Eerste Kamer), but this should only be a matter of time. The Netherlands Commercial Court (NCC) is expected to open its doors on 1 July 2018 or shortly after.

The NCC is a specialized court established to meet the growing need for efficient dispute resolution in cross-border civil and commercial cases. This court is established as a special chamber of the Amsterdam District Court and of the Amsterdam Court of Appeal. Key features are that proceedings will take place in the English language, and before a panel of judges selected for their wide expertise in international commercial litigation and their English language skills.

To accommodate the demand for efficient court proceedings in these cases a special set of rules of procedure has been developed. The draft Rules of Procedure NCC can be consulted here in English and in Dutch. It goes without saying that the court is equipped with the necessary court technology.

The Netherlands prides itself on having one of the most efficient court systems in the world, as is also indicated in the Rule of Law Index – in the 2017-2018 Report it was ranked first in Civil Justice, and 5th in overall performance. The establishment of the NCC should also be understood from this perspective. According to the website of the Dutch judiciary, the NCC distinguishes itself by its pragmatic approach and active case management, allowing it to handle complex cases within short timeframes, and on the basis of fixed fees.

As noted by Marta Requejo in an earlier post, the European Commission has published on 12 March 2018 a proposal for a regulation on the law applicable to the third-party effects of assignments of claims.

On 4 April 2018, a seminar (in English) will take place at the Department of Law of the University of Ferrara under the title Voluntary Assignment and Contractual Subrogation under EU Private International Law. The Commission proposal will, of course, be one of the key topics of the seminar.

Speakers include Martin Gebauer (University of Tübingen), Antonio Leandro (University of Bari), Alina Ontanu (Erasmus University Rotterdam) and Riccardo Manfrini (lawyer in Treviso).

Further information may be found here.

On March 12, 2018, the Commission has proposed new rules to clarify according to which law such disputes are resolved: as a general rule, the law of the country where creditors have their habitual residence would apply, regardless of which Member State’s courts or authorities examine the case.

Click here to access the proposal, COM(2018) 96 final.

SaveComp is a project co-funded by the European Union whose goal is to collect and exchange best practices in the field of insolvency and pre-insolvency cross-border proceedings.

The project has now been concluded, and the final deliverables are available online.

These are a collection of more than 500 decisions regarding the EU Insolvency Regulation, available through the Unalex database, and a Final study, edited by Ilaria Queirolo (University of Genoa) and Stefano Dominelli (University of Milan), and authored by Stephan Biehl, Jan Brodec, Janeen Carruthers, José Juan Castelló Pastor, Rolef J. de Weijs, Tsvetelina Dimitrova, Carlos Esplugues Mota, Francisco Gómez Fonseca, Urs Peter Gruber, Boriana Musseva, Nikolay Natov, Vasil Pandov, Monika Pauknerová, Magdalena Pfeiffer, Dana Rone, Arthur Salomons, Dafina Sarbinova, Alexander Schley, Emil Tsanev, Teodora Tsenova, C.G. van der Plas and Aukje A.H. van Hoek.

The project, led by the University of Genoa, involved the Universities of Valencia, Amsterdam, Glasgow, Mainz, Prague and Valencia, the Turiba University in Riga, the Institute of Private International Law in Sofia and IPR Verlag.

Further to the splendid conference How European is European Private International Law? at Berlin on 2 and 3 March 2018, I would like to add some thoughts on an issue that was briefly raised by our fellow editor Pietro Franzina in his truly excellent conference presentation on “The relationship between EU and international Private International Law instruments”. Pietro rightly observed an “increased activity on the external side”, meaning primarily the EU’s PIL activities on the level of the Hague Conference.

At the same time, there seems to be still a blind spot for the EU’s Private International Law policy when it comes to the design of the EU’s Free Trade Agreements (FTAs). Although there is an increasingly large number of such agreements and although “trade is no longer just about trade” (DG Trade) but additionally about exchange or even export of values such as “sustainability”, human rights, labour and environmental standards and the rule of law, there seems to be no policy by DG Trade to include in its many FTAs a Chapter on judicial cooperation with the EU’s respective external trade partners.

To my knowledge there are only the following recent exceptions: The Association Agreements with Georgia and Moldova. Both Agreements entered into force on 1 July 2016.

Article 21 (Georgia) and Article 20 (Moldova) provide:

“Legal cooperation: 1. The Parties agree to develop judicial cooperation in civil and commercial matters as regards the negotiation, ratification and implementation of multilateral conventions on civil judicial cooperation and, in particular, the conventions of the Hague Conference on Private International Law in the field of international legal cooperation and litigation as well as the protection of children.”

Article 24 of the Association Agreement of 29 May 2014 with the Ukraine reads slightly differently:

“Legal cooperation: 1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.”

All other FTAs, even those currently under (re-) negotiation, do not take into account the need for the management of trust in the judicial cooperation of the trade partners in their deepened and integrated trade relations. Rather, foreign trade law and PIL seem to have remained separate worlds, although the business transactions that are to take place and increase within these trade relations obviously rely heavily on both areas of the law.

Some thoughts on why there is no integrated approach to foreign trade and PIL in the EU, why this is a deficiency that should be taken care of and how this could possibly be done are offered here (http://ssrn.com/abstract=3134324).

The Italian Ministry for Education, University, and Research (Ministero dell’Istruzione, dell’Università e della Ricerca, MIUR) has issued a public call for  24 researcher positions.

The call is open to scholars of all nationalities who have spent three years working at a non-Italian research center or university and have been awarded a PhD degree, or equivalent, after 31 October 2011 and by 31 October 2014.

The winner of the call will work as a Senior Researcher with an initial 3-year working contract (Ricercatore a tempo determinato, tipologia B) that leads to Associate Tenured Track Professorship subject to National Scientific Habilitation (Abilitazione Scientifica Nazionale, «ASN»).

The English translation of the Ministerial Decree is available at the following address: (http://cervelli.cineca.it/).

The deadline to submit the application is 28 March 2018, h. 24.00 (Italian local time).

***

In the context of this call, the University of Milan, Department of International, Legal, Historical and Political Studies (http://eng.intgiurpol.unimi.it/ecm/home) wishes to express its interest to welcome outstanding researchers in the areas of Public and Private International Law, EU Law, Comparative Law who would like to apply.

For additional information please contact Dr. Stefano Dominelli (stefano.dominelli@unimi.it).

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford

Last weekend, more than a hundred scholars of private international law followed the invitation of Jürgen Basedow, Jan von Hein, Eva-Maria Kieninger, and Giesela Rühl to discuss the ‘Europeanness’ of European private international law. Despite the adverse weather conditions, only a small number of participants from the UK – whose presence was missed all the more dearly – were unable to make it to Berlin. Thus, the Goethe-Saal of the Max Planck Society’s Harnack House was packed, and so was the conference programme, which spanned over two full days.

It was kicked off by Andreas Stein (European Commission) and Johannes Christian Wichard (German Ministry of Justice), who underlined both the accomplishments of and the challenges for European private international law in their respective welcome addresses. The programme then proceeded from a closer look at the sources of European private international law (and their relationship with other international instruments and the domestic laws of the member states) to an analysis of its application in the courts of the member states (including the ascertainment of foreign law) to a discussion of the ‘Europeanness’ of academic discourse and legal education within the EU and outside of it (with a focus on the political dimension of EU private international law).

All presentations provided ample food for thought, as was evidenced by the lively discussions that followed each panel. They highlighted a number of interesting tendencies, such as the remaining ‘piecemeal character’ of the field, the ambiguities caused by an ever-increasing number of recitals in European instruments, the regrettable absence of private international law from the legal curriculum in many EU member states, and a certain convergence of academic styles, not least through the growing adoption of German-style commentaries and the emergence of English as the undisputed lingua franca of the field. One of the more contentious issues discussed was the possible creation of a general instrument of private international law (think: Rome 0 Regulation), or even a complete codification, with numerous participants pointing towards its potential for more coherence, clarity, and ‘teachability’ of European private international law – while others urged more caution.

The most prominent theme of the two days, though, seemed to be the observation that the emergence of a distinctly European scholarship of private international law should be both welcomed and fostered. The idea of creating an association that could provide an institutional framework for further dialogue between European scholars, practitioners, and other stakeholders in private international law was mentioned more than once – and received almost unanimous support during the round table discussion that concluded the conference. It was fitting, then, that the conference included the official launch of the Encyclopedia of Private International Law, many authors of which were present in Berlin. This truly Herculean project, just as the conference itself, is testimony to how fruitful such dialogue can be.

(This Call for paper is provided for by Jeanne Huang)

The issue of cross border protection of intellectual property (IP) was very important and explained the use of bilateral and multilateral treaties such as the Berne Convention and the Paris Convention. One of the fundamental principles underlying these treaties was territoriality and the national treatment principle. However, the advent of the 21st century brought
digitisation and globalisation, which have significantly impacted upon the territoriality protection. Finding the best way to protect IP within the context of globalisation and digitisation was the most fundamental question that the workshop sought to answer. We invite colleagues working on private international law and IP to submit expressions of interest to present at the workshop, which will be held at the Faculty of Law, University of New South Wales on Saturday, 18 August 2018, from 9:30 am -5:00 pm. The workshop is
designed to allow researchers working in the field of private international law and IP to deliver work-in-progress papers to their peers. We particularly welcome submissions to discuss and debate the draft International Law Association Guidelines of Intellectual Property and Private International Law, available at http://www.ip.mpg.de/fileadmin/IP/pdf3/ILA_Guidelines-6Oct2015.pdf.

We are keen to receive proposals that focus on private-international-law issues in cross-border IP disputes, such as:
• Jurisdiction,
• Applicable Law,
• Recognition and Enforcement of Judgments,
• Arbitration or
• Private international law issues in smart contracts, blockchain transactions and other digitalized transactions.

For paper proposals, speakers are to submit a title and 150-200 word abstract, along with a one-page CV for potential inclusion in the workshop. Please send your proposal to Jeanne.Huang@unsw.edu.au by 15 April 2018.