Conflictoflaws

Readers of this blog might be interested in Roxana Banu, “A Relational Feminist Approach to Conflict of Laws” (2017) 24 Mich. J. Gender & L. 1.  It can be accessed through SSRN at this location.

The specific context is transnational surrogacy arrangements, but much of the article goes beyond that to other areas of the field more generally.  The article engages with work by several other scholars who write about theories or philosophies of private international law.

The Abstract is below.

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Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Regional Court Korneuburg has opened a main insolvency proceeding – not a secondary insolvency proceeding that the German provisional administrator has applied for – on the assets of NIKI Luftfahrt GmbH in Austria (see here). Therefore, it obviously shares the view of the Regional Court of Berlin that NIKI’s COMI is located in Austria and not Germany.

However, it will be possible to lodge an appeal (“Rekurs”) against the Regional Court’s decision within the next 14 days.

As the German Federal Court of Justice still has to decide about the appeal against the ruling of the Regional Court of Berlin, we now see a main (preliminary) insolvency proceeding in Germany and one in Austria. It is not entirely clear under the EIR how to deal with such a positive conflict of jurisdiction. Depending on the decision of the German Federal Court it might just dissolve (if it locates NIKI’s COMI in Austria as well). Otherwise it should be – from my point of view – solved by cooperation and coordination in the spirit of Art. 42 EIR between the German and Austrian courts.

Interestingly the Regional Court Korneuburg has stated that since the decision of the Regional Court of Berlin no main insolvency proceeding is upheld in Germany. However, the Regional Court of Berlin has stated that, due to the fact that it has admitted an appeal (“Rechtsbeschwerde”) to the German Federal Court against its ruling, it has no legal force yet (see here).

Following the entry into force of the new Insolvency Regulation across the European Union in June 2017, the MPI Luxembourg has released a book guiding practitioners and national lawmakers through the implementation of the new rules. The title corresponds to volume 10 of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law collection (320 pp., ISBN 978-3-8487-4448-0).

The book is the result of a 2-year research project, co-funded by the European Commission under the Specific Programme “Civil Justice” and co-led by the MPI Luxembourg together with the Universities of Vienna and Milano. The project aimed to evaluate the changes that were brought to the European Insolvency Regulation in order to keep pace with the substantial developments in domestic law.

Beyond providing an overview of these changes and expected problems that lay ahead, the book puts forth a series of guidelines and recommendations to facilitate the application and interpretation of the new Regulation. It covers the three primary advancements of the Regulation:

(1) pre-insolvency proceedings that discourage liquidation in favour of rescue and restructuring;

(2) procedural instruments which facilitate the administration of complex cross-border insolvencies and, thus, reduce the opening of inefficient parallel insolvency proceedings via the strengthening of procedural cooperation;

(3) a procedural mechanism designed to reinforce coordination of corporate group insolvencies.

The book bridges the gap between academia and practice. Judges and practitioners, including representatives of the German Ministry of Justice, were invited to actively contribute to the discussions and enhanced the academic dialogue. Some of their inputs are published as well in the Annex to the book.

The table of contents can be found here.

 

Approaches to Procedural Law. The Pluralism of Methods, edited by Professors Loïc Cadiet, Burkhard Hess and Marta Requejo Isidro (552 pp., ISBN 978-3-8487-4309-4) corresponds to volume 9 of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law collection.

As explained in the foreword the book is the final outcome of the second edition of the MPI-IAPL Post-doctoral Summer School in procedural law, which took place at the Max Planck Institute premises in July 2016. Guiding thread of the book are two complementary reflections: On the one hand, modern procedural law is characterized by its openness to comparative and international perspectives. On the other hand, the aperture of procedural science requires a new approach of research, which has to be based on a comparative methodology. In this context, particular attention was paid to recent trends characterizing the field: Europeanization and harmonization, marking the evolution towards a new, cross-border dimension of Procedural Law; and the growing importance of transnational legal relations in all spheres of civil and commercial which obliges to face the new challenges of procedural law across national borders.

The book gathers the contributions of young post-doc whose research focus on European and comparative procedural law, as well as on relevant dispute mechanisms for civil controversies, and those of the Professors who shared with them the summer-school experience.

You can access the table of contents here.

It is my pleasure to announce in this and the following entries the publication of three new volumes of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, starting with volume 8, edited by Professors B. Hess and X. Kramer.

From common rules to best practices in European Civil Procedure

 

2017, 486 p., ISBN 978-3-8487-4219-6

Click here to access the table of contents

Abstract:

What road should procedural innovation take? Twenty years after the adoption of the extended competence in the area of judicial cooperation under the Amsterdam Treaty, numerous instruments on European civil procedure have been developed and enacted by the EU legislature, and applied by national courts. There is no doubt that these instruments have built a genuine Judicial Area where citizens and businesses can rely on operating justice systems and functioning cross-border cooperation. While it remains important to study these legislative instruments and, where necessary, to establish new instruments, civil procedure in the EU has entered a new era in which the development of common standards and best practices in the Member States and at the EU level are of the essence.

The theme of the present book is inspired by the shift in focus from the establishment of new legislation with common rules to a focus on the actual implementation, application, and operationalization of the rules on cooperation in civil justice. While the discussion of common rules continues to be important and has regained importance as a result of the “common minimum standards” initiative of the European Parliament, some papers in this book also focus on how to move beyond common rules and towards best practices. These “best practices” in applying European instruments, implementing new pathways to civil justice – including eJustice, alternative dispute resolution (ADR) and collective redress — and the operationalizing of judicial cooperation, for instance through the European Consumer Centres and the European Judicial Network, give body to the principles of mutual trust and judicial cooperation. These can in turn feed the further development of the European civil procedure framework from the bottom up.

Part I is a general part dedicated to common standards of EU civil procedure, focusing on the harmonization of civil procedure and judicial cooperation in general. The central questions of this part concern whether there is a need for common standards of EU civil procedure, how to identify them, and whether we need harmonization to achieve harmonious cooperation.

The chapters included in Part II of the book are organized around the question as to whether and how innovative mechanisms for dispute resolution can enhance cooperation in the field of civil justice. E-Justice has been one of the spearheads of the European Commission to improve access to justice, with the establishment of the e-justice portal as the main achievement.

Part III is dedicated to alternative dispute resolution. Encouraging and improving Alternative Dispute Resolution (ADR) mechanisms, in particular for consumers, is another focal point in EU policy to simplify access to justice in recent years, and has resulted in the Directive on Consumer ADR48 and the Regulation on Consumer Online Dispute Resolution (ODR) along with the establishment of the ODR platform.

Part IV includes a number of short chapters on best practices in the EU to operationalize judicial operation and to improve mutual trust.

With contributions from more than 20 experts from practice and academia this remarkable conference volume offers valuable blueprints for a reinvigorated judicial cooperation.

In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Spanish airline Vueling Airlines S.A is still intending to acquire large parts of the NIKI business. Vueling is part of the European aviation group IAG, which also includes British Airways, Iberia, Aer Lingus and LEVEL. The provisional insolvency administrator of NIKI Luftfahrt GmbH, therefore, will continue to drive the sales process. Vueling has provided interim financing of up to € 16.5 million to finance the NIKI business until the closing of the purchase agreement. This funding is only sufficient for a few weeks.

Meanwhile, NIKI has lodged an appeal with the Federal Court against the ruling by the Regional Court of Berlin. Due to the legal complaint of the NIKI management against the decision, it does not have legal force yet. The preliminary insolvency proceeding in Germany therefore continues.

NIKI is expected to apply for the opening of secondary insolvency proceedings in Austria by the end of the week, as well. According to the provisional insolvency administrator of NIKI this procedure is an important step to ensure the orderly processing of NIKI in Austria. In addition, the purchase agreement for the NIKI business should now be secured at short notice via this Austrian secondary process.

It remains to be seen how the German Federal Court deals with the question of the rebuttal of the assumption that NIKI’s COMI is located in Austria (the place of its registered office). It is even possible that the ECJ has to deal with this question for a second time after the Eurofood IFSC (Case C-341/04) case. As we will probably see a secondary proceeding commenced in Austria (NIKI seems to be one of the rare cases where the insolvency administrator of the main proceeding finds the commencement of a secondary proceeding useful for the success of the administration) we might even witness the application of some of the new rules of the EIR on the cooperation and coordination of main and secondary proceedings.

Symeon Symeonides has posted on SSRN his 31st annual survey of American choice-of-law cases. The survey covers appellate cases decided by American state and federal courts during 2017. It can be found here https://ssrn.com/abstract=3093709  The table of contents is reproduced below.

Symeonides has also posted his annual Private International Law Bibliography for 2017. It can be found here https://ssrn.com/abstract=3094215.

 

31st Choice-of-Law Survey Table of Contents

 

Introduction

Part I. Jurisdiction

1. The Supreme Court Speaks (Again)
2. Foreign Sovereign Immunity
3. The Terrorism Exception
4. The Noncommercial Tort Exception
5. The Expropriation Exception
6. Jurisdiction Over Non-Recognized States
7. The Fukushima Nuclear Accident
8. The Political Question Doctrine

Part II. Extraterritoriality (or Non) of Federal Law

1. Fifth Amendment
2. Alien Tort Statute and Human Trafficking
3. Civil Rico and Domestic Injuries

Part III. Choice of Law

1. Torts
2. Georgia’s Peculiar Lex Loci Rule
3. Intrafamily Immunities and Families in Transit
4. Vicarious Liability
5. Distribution of Wrongful Death Proceeds
6. Hospital Liens
7. Medical Malpractice and State Immunity
8. Federal Tort Claims Act and United States Immunity
9. Defamation
10. Extraterritoriality (or Non) of State Statutes
11. Cross-Border Telephone Calls
12. State Civil RICO
13. Other Statutes
14. Air Travel, a “Needlestick,” and the Montreal Convention
15. Products Liability
16. Introduction
17. Cases Applying the Pro-Defendant Law of a Plaintiff-Affiliated State
18. Other Cases Applying a Pro-Defendant Law
19. Cases Applying a Pro-Plaintiff Law
20. Contracts
21. Choice-of-Law Clauses and Jury Waivers
22. Choice-of-Law Clauses and Trusts
23. Choice-of-Law Clauses and Old-Style Ordre Public
24. Separability(?) of Choice-of-Law Clauses
25. Scope of the Choice-of-Law Clause
26. Choice-of-Law and Forum-Selection Clauses
27. Choice-of-Law Clauses and Arbitration Clauses
28. Insurance Contracts
29. Choice-of-Law Methodology
30. Vacillation in Wyoming
31. The Methodological Table
32. Statutes of Limitation
33. New Jersey’s New Switch
34. Summary of State Practices
35. Choice-of-Law Clauses and Statutes of Limitations
36. Recovering Nazi-Looted Artwork
37. Marriage and Divorce
38. Marital Property

Part IV. Foreign Judgments and Awards

1. Sister-State Judgments
2. Land in another State
3. Due Process
4. Statutes of Limitations
5. Foreign-Country Judgments
6. Paternity and Public Policy
7. Child Custody and Human Rights
8. Child Support
9. Procedural Due Process
10. Service of Process
11. Jurisdiction in the State of Origin
12. Judgment “Contrary” to Arbitration Agreement
13. Statute of Limitations
14. Foreign Arbitration Awards

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Regional Court of Berlin has, on the basis of the immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts. In its decision, the regional court has dealt with the definition of international jurisdiction, which is based on the debtor’s centre of main interests (‘COMI’). According to the provisions of the European Insolvency Regulation, that is the place where the debtor usually conducts the administration of its interests and that is ascertainable by third parties.

The court has founded its decisions on the following arguments:
Since the debtor is based in Austria, it is assumed that the centre of their interests is also there (see Art. 3 II EIR recast). If this presumption is to be rebutted, high demands must be made to ensure legal certainty. According to the case-law of the European Court of Justice, objective and, for a third party, recognizable circumstances that would prove that the place of the head office is not located at the registered office are necessary.
The various factors should be considered in their entirety. In the present case, it can not be established with sufficient certainty on the basis of the arguments put forward by the debtor, on the one hand, and the complainant on the other hand, that the COMI is indeed located in Germany. Rather, no uniform picture is recognizable that could justify refuting the presumption.
The place from which the essential business activities of the debtor are controlled, namely Berlin, is not a solely decisive criterion. The fact that Air Berlin had been practically NIKI’s only customer, and thus the sales were particularly generated in Germany, was not automatically decisive, as well.
Then again, the fact that the debtor maintains offices in Vienna, in which amongst other things NIKI’s financial accounting is conducted, argues for a COMI in Austria. Likewise, the competent supervisory authority is located in Vienna and the debtor has an Austrian operating license and the airworthiness of the aircraft is monitored from there. In addition, approximately 80% of the employment contracts concluded by the debtor are subject to Austrian employment law.
Finally, the debtor’s own behaviour also indicates that it assumes its COMI in Austria. It had not informed the creditors and the public that it had relocated its COMI to Germany. Furthermore, in an insolvency proceeding opened at the request of a creditor before the Korneuburg Regional Court (file reference 35 Se 323 / 17k) in Austria, the debtor did not raise the objection that there was no international competence in Austria.

This should be the first case of application of the ‘new’ Art. 4 I EIR recast, that regulates the examination of international jurisdiction. It is very likely not the last, as the case shows that the COMI-concept is still controversial. It waits to be seen if the case will even be referred to the German Federal Court of Justice (the Regional Court has admitted the appeal to the German Federal Court of Justice, that may be lodged within a period of one month).

The press release of the Regional Court of Berlin can be found here.

A compendium of country reports on the law on the recognition and enforcement of foreign judgments in ASEAN, Australia, China, India, Japan and South Korea has been published by the Asian Business Law Institute, a research institute based in Singapore. The list of contributors are as follows:

1. Professor Elizabeth Aguiling-Pangalangan of the University of the Philippines;
2. Dr Andrew Bell, SC of Eleven Wentworth Chambers, Australia;
3. Dr Bich Du Ngoc of Ho Chi Minh City Open University;
4. Mr Youdy Bun of Bun & Associates, Cambodia;
5. Xaynari Chanthala and Mr. Kongphanh Santivong of LS Horizon (Lao) Limited;
6. Associate Professor Adeline Chong of Singapore Management University;
7. Professor Choong Yeow Choy of the University of Malaya;
8. Professor Guo Yujun of Wuhan University, China;
9. Professor Toshiyuki Kono of Kyushu University;
10. Mr Minn Naing Oo of Allen & Gledhill (Myanmar) Co Ltd;
11. Dr Colin Ong, QC of Dr Colin Ong Legal Services, Brunei;
12. Dr Yu Un Oppusunggu of the University of Indonesia;
13. Mr Narinder Singh of the Indian Society of International Law;
14. Dr Poomintr Sooksripaisarnkit of the University of Tasmania; and
15. Professor Suk Kwang Hyun of Seoul National University.

You can download the compendium at: http://abli.asia/PROJECTS/Foreign-Judgments-Project.

Further information may be found in the publisher’s blurb:

Out Now: Recognition and Enforcement of Foreign Judgments in Asia

The Asian Business Law Institute’s (ABLI)* first publication in its ABLI Legal Convergence Series has been released, a compendium of country reports entitled “Recognition & Enforcement of Foreign Judgments in Asia”.  This new publication has been edited by Associate Professor Adeline Chong of the School of Law, Singapore Management University, who is leading ABLI’s Foreign Judgments Project.

The compendium is the output of the first part of ABLI’s project to promote the convergence of the law on the recognition and enforcement of foreign judgments in Asia.

The compendium consists of 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be fulfilled for a foreign judgment to be enforced in these jurisdictions.

This is the first time such a study is made covering the laws of the ten ASEAN countries and the major Asian economies of Australia, China, India, Japan and South Korea. The reports are written by legal academics and practitioners from the 15 countries covered by the project and the compendium is freely available on ABLI’s website at: http://abli.asia/PROJECTS/Foreign-Judgments-Project.

The compendium will also act as a springboard for the next phase of ABLI’s Foreign Judgments Project which will consider whether sufficient areas of commonality exist for convergence in this area of the law and how convergence may best be achieved. The convergence of the foreign judgment rules in Asia is essential as Asia moves rapidly towards a borderless trading environment, as the greater portability of judgments within Asia will facilitate cross-border transactions by lowering transaction costs and associated legal friction among jurisdictions.

* The Asian Business Law Institute was launched in January 2016. It is a permanent institute based in Singapore that initiates, conducts and facilitates research with a view to providing practical guidance in the field of Asian legal development and promoting the convergence of Asian business laws. Its mission is to remove unnecessary or undesirable differences between Asian legal systems that pose obstacles to free and seamless trade. ABLI’s long-term strategic direction in accordance with its aims is set by its Board of Governors chaired by The Honourable the Chief Justice Sundaresh Menon of the Supreme Court of Singapore. The Board comprises representatives from Australia, China, India and Singapore and other internationally renowned legal experts.

The most recent issue of the International and Comparative Law Quarterly (ICLQ) features two articles relating to private international law:

Louise Merrett, The Future Enforcement of Asymmetric Jurisdiction Agreements, ICLQ 67 (2018), pp. 37-71:

Asymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.

Giesela Rühl, Judicial Cooperation in Civil and Commercial Matters after Brexit: Which Way Forward? ICLQ 67 (2018), pp. 99-128:

Judicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’. However, for the many UK and EU citizens, families and businesses who work, live, travel and do business abroad, the current European framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance. The article, therefore, explores how that framework might look like after Brexit and discusses the merits and demerits of the various ways forward.

Full texts are available via Cambridge Core.

 

A quick reminder regarding the third International Association of Procedural Law (IAPL) – Max Planck Institute Luxembourg Summer-School, which will take place in Luxembourg from the 1st to the 4th of July 2018, on the topic of “Privatizing Dispute Resolution and its Limits”.

The School is mainly addressed to post-doc students at the beginning of their academic career; however PhD candidates may be admitted in case their dissertation is already at an advanced stage, and provided the applicant shows a degree of academic maturity guaranteeing that his/her attendance to the school will be fruitful both for him/her and the School itself.

The selection process entails a two-stage process, based on the written materials submitted by the applicants. A pre-selection is made within the MPI among the applications correctly completed and received in due time on the basis of the candidate’s CV, his/her topic of research and his/her explanation of it (interest, methodological approach, novelty). The final decision lies with the MPI and the IAPL Presidium.

Applicants are requested to apply via the website platform set up to this effect. The application form therein provided for must be filled in with the following information:

An application form therein provided for must be filled up and the following documents upload:

• A short curriculum vitae indicating the nationality of the candidate, age and home institution; PhD topic, date and place of submission, degree awarded, members of the jury/commission; recent publications; grants and awards; stays abroad; current position
• A short description of the project of research to be discussed at the School (no more than 1000 words)
• A letter of recommendation from a renowned Law Professor or Practitioner

Up to 20 places will be available for applicants having procedural law and/or dispute resolution mechanisms as their main field of academic interest. All nationalities are welcome to apply. A good level of English, both orally and in writing, is nevertheless of the essence.

Please follow this link for the online application. Deadline: January 29, 2018.

This volume (2017, 295 pp., € 79.00, ISBN 978-3-8487-3736-9) is a collection of edited papers (all in English) presented on the occasion of the 6th Seoul-Freiburg Law Faculties Symposium held in Freiburg (Germany) in June 2016. Since its inception in 1996, the cooperation and academic exchange between the Law Faculties of the Seoul National University (SNU) and the Albert-Ludwigs-Universität Freiburg has flourished and contributed substantially to the mutual understanding of legal thought and research in the two legal cultures and jurisdictions, keeping alive the old and precious tradition of maintaining a close relationship between Korean and German law. Like previous symposia, the 2016 Symposium on the „Relationship between Legislature and Judiciary“ was devoted to a rather broad and abstract subject which is of fundamental relevance for both countries, covering constitutional law, legal theory, private law (including private international law), criminal law, commercial law, and administrative law. The symposium was supported by the Thyssen Foundation (Cologne).

The volume is edited by Jan von Hein, Hanno Merkt, Sonja Meier, Alexander Bruns, Yuanshi Bu, Silja Vöneky, Michael Pawlik, and Eiji Takahashi. It contains contributions by Un Jong Pak, Matthias Jestaedt, Ralf Poscher, Hong Sik Cho, Kye Joung Lee, Frank Schäfer, Jinsu Yune, Jan von Hein, Sank Won Lee, Ok-Rial Song, Boris Paal, Maximilian Haedicke, Seongwook Heo, and Dongjin Lee.
Further information is available on the publisher’s website here.

By virtue of Article 42 Law 4509/2017, a new provision has been added to the Code of Civil Procedure, bearing the title of the EU Regulation. Article 738 A CCP features 6 paragraphs, which are (partially) fulfilling the duty of the Hellenic Republic under Article 50 EAPO. In brief the provision states the following:

• 1: The competent courts to issue a EAPO are the Justice of the Peace for those disputes falling under its subject matter jurisdiction, and the One Member 1st Instance Court  for the remaining disputes. It is noteworthy that the provision does not refer to the court, but to its respective judge, which implies that no oral hearing is needed.
• 2: The application is dismissed, if

1. it does not fulfil the requirements stipulated in the Regulation, or if
2. the applicant does not state the information provided by Article 8 EAPO, or if
3. (s)he does not proceed to the requested amendments or corrections of the application within the time limit set by the Judge.

Notice of dismissal may take place by an e-mail sent to the account of the lawyer who filed the application. E-signature and acknowledgment of receipt are pre-requisites for this form of service.

The applicant may lodge an appeal within 30 days following notification. The hearing follows the rule established under Article 11 EAPO. The competent courts are the ones established under the CCP.

• 3: The debtor enjoys the rights and remedies provided by Articles 33-38 EAPO. Without prejudice to the provisions of the EU Regulation, the special chapter on garnishment proceedings (Articles 712 & 982 et seq. CCP) is to be applied.
• 4: If the EAPO has been issued prior to the initiation of proceedings to the substance of the matter, the latter shall be initiated within 30 days following service to the third-party.

If the applicant failed to do so, the EAPO shall be revoked ipso iure, unless the applicant has served a payment order within the above term.

• 5: Upon finality of the judgment issued on the main proceedings or the payment order mentioned under § 4, the successful EAPO applicant acquires full rights to the claim.
• 6: The liability of the creditor is governed by Article 13 Paras 1 & 2 EAPO. Article 703 CCP (damages against the creditor caused by enforcement against the debtor) is applied analogously.

Some additional remarks related to the Explanatory Report would provide a better insight to the foreign reader.

1. There is an explicit reference to the German and Austrian model.
2. The placement of the provision (i.e. within the 5th Book of the CCP, on Interim Measures) clarifies the nature of the EAPO as an interim measure, despite its visible connotations to an order, which is regulated in the 4th chapter of the 4th Book, on Special Proceedings. Nevertheless, the explanatory report acknowledges resemblance of the EAPO to a payment order.
3. There is no need to provide information on the authority competent to enforce the EAPO, given that the sole person entrusted with execution in Greece is the bailiff.

The initiative taken by the MoJ is more than welcome. However, a follow-up is imperative, given that Article 738 A CCP does not provide all necessary information listed under Article 50 EAPO.

This report is provided by Dr. Wenliang Zhang, who is currently a lecturer in the Law Scool of Renmin U, China (PRC).

Against the lasting global efforts to address the issue of recognition and enforcement of civil and commercial judgments (“REJ”), some scholars from Mainland China, Japan and South Korea echoed from a regional level, and convened for a seminar on “Recognition and Enforcement of Judgments between China, Japan and South Korea in the New Era”. The seminar was held in School of Law of Renmin University of China on December 19, 2017 and the participants were involved in discussing in depth the status quo and the ways out in relation to the enduring REJ dilemma between the three jurisdictions, especially that between China and Japan.

Unfortunately, despite the immense volume of civil and commercial interactions, China and Japan have been stuck in the REJ deadlock ever since China first refused to recognize Japanese judgments in the infamous 1994 case Gomi Akira. After this misfortune, both Chinese and Japanese courts have waged rounds of repeated refusals or revenges, forming a vicious circle in the guise of the so-called reciprocity. The Sino-Japanese REJ stalemate is considered to be illustrative of the most formidable blockades lying on the way to free movement of judgments. Between China and South Korea, the REJ future is promising. Although China refused to recognize, at least in one case, Korean judgments for lack of reciprocity, Korean courts have nevertheless recognized Chinese courts on a reciprocity basis. The positive move by Korean courts may well pave the way for Chinese courts to recognize Korean judgments in the future.

For smooth REJ, understanding must be ensured between the three jurisdictions and mutual trust should also be established. In light of China’s recent positive movement in applying reciprocity, there may exist a way out for the REJ deadlock if the other two jurisdictions could well join the trend. The papers presented for the seminar will appear in a special 2018 issue of Frontiers of Law in China:

1. Yuko Nishitani, Coordination of Legal Systems by Recognition of Judgments ? Rethinking Reciprocity in Sino-Japanese Relationships
2. Kwang Hyun Suk, Recognition and Enforcement of Foreign Judgments among China, Japan and South Korea: Korean Law Perspective
3. Qisheng He, Wuhan University Law School Topic: Judgment Reciprocity among China, Japan and South Korea: Some Thinking for Future Cooperation
4. Wenliang Zhang, To break the Sino-Japanese Recognition Feud – Lessons Learnt As Yet
5. Lei Zhu, The Latest Development on the Principle of Reciprocity in the Recognition and Enforcement of Foreign Judgments in China
6. Yasuhiro Okuda, Unconstitutionality of Reciprocity Requirement for Recognition and Enforcement of Foreign Judgments in Japan.

The upcoming negotiations regarding the United Kingdom’s exit from the European Union are of great interest to politicians, economists, the public and academics. The withdrawal agreement will set the course for the economic relations between the EU and the UK, while taking into account that it might have a considerable impact on the binding strengths of the European integration.

In this context, the Mannheim Centre for Competition and Innovation (MaCCI), a joint research initiative of the Faculty of Law of Mannheim University and the ZEW (Centre for European Economic Research) together with the European Research Centre for Economic and Financial Governance (EURO-CEFG) of the Universities of Leiden, Delft and Rotterdam will host an interdisciplinary conference on 25/26 January 2018 in Mannheim to raise crucial questions and challenges with respect to the Brexit negotiations and discuss them from both the legal and economic perspective.

The conference will consist of three parts, the first one dealing with the bargaining positions of the EU and the UK. The second part will look into the future relations: which type of trade agreement could serve as a model and what are the respective requirements and economic consequences? Lastly, the third part will focus on specific sectoral issues regarding for instance the future embodiment of cross-border trade and financial services or ensuring the unity of law.

Registration for this conference is possible here.

Find the detailed programme here.

 

By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.

The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.

The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).

Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).

The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).

It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).

Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).

However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).

Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).

 

 

 

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

Register your interest now at www.HCCH125.org, and receive all the latest information about the global conference “HCCH 125 — Ways Forward: Challenges and Opportunities in an Increasingly Connected World”.

This global conference gathers world-leading experts who will discuss the opportunities for, and challenges to, private international law. Through interactive “Davos Style” sessions, participants will not only hear from these experts, but can also participate actively in each session.

The key note speaker Prof Jürgen Basedow, emeritus at the Max Planck Institute for Comparative and International Private Law, will be joined by a stellar cast of confirmed moderators and speakers, including Sir Lawrence Collins, Lord Collins of Mapesbury; Professor Richard Fentiman; Professor Linda Silberman and many other distinguished authorities, hailing from practice, judiciary and government. The up-to-date list of all experts will be available soon on the website.

The event, which will be held in Hong Kong SAR, China, from 18 -20 April 2018, and is organised by the HCCH with the generous support of the Department of Justice of Hong Kong SAR, will give all participants the unique opportunity to hear from world-leading experts and contribute actively to a discussion of the future of private international law and the evolution of the Hague Conference on Private International Law, which celebrates its 125th Anniversary in 2018.

You can also keep up-to-date with the HCCH in its quasquicentennial year by following the Organisation’s dedicated Facebook (https://www.facebook.com/HCCH125/) and LinkedIn (https://www.linkedin.com/showcase/hcch-125/) pages.

As part of a research, financed by an Action Grant of the European Commission, on the amendments of the Brussels I-bis Regulation and the functioning in legal practice, questionnaire are available. The research is conducted by the Asser Institute (the Hague), Erasmus School of Law and the Leibniz Institute (Amsterdam). The researchers are extremely grateful if you could fill these out or forward these to others that might be interested.

The survey is available in Dutch, English, French and German.

 

 

 

Former Secretary General of the Hague Conference on Private International Law (HCCH), Hans van Loon, has just published an article on the HCCH and a Chinese translation of his inaugural lecture on the global horizon of private international law delivered at the 2015 Session of the Hague Academy:

– Hans van Loon, “At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work”, in Collected Courses of the Xiamen Academy of International Law, Vol. 11, pp. 1-65, (Chia-Jui Cheng, ed.), Brill/Nijhoff, 2017 (available via Brill).

Contents:

1. Role and Mission of the Hague Conference on Private International Law
2. Origin and Development of the Hague Conference
3. The impact of Contemporary Globalisation
4. Hague Conventions Promoting Global Trade, Investment and Finance
5. Hague Conventions Promoting Administrative and Judicial Cooperation
6. Hague Conventions Promoting Personal Security and Protecting Families in Cross Border Situations
7. Outlook – (Potential) Significance of the Hague Conference and Its work for the Asia-Pacific Region.

– Chinese translation (by Prof. Zhang Meirong and Prof. Wu Yong) of Hans van Loon’s Inaugural Lecture, “The Global Horizon of Private International Law” given at the 2015 Session of the Hague Academy of International Law, Recueil des Cours, Vol. 380, in Chinese Review of International Law 2017, vol. 6, pp. 2-52, vol. 6), for more information see http://www.guojifayanjiu.org/.

Excerpt of table of contents:

Chapter I. The development of private international law against the backdrop of the evolving nation-State

1. Origins and early development of private international law
2. Birth of the Hague Conference on private international law
3. Establishment of the Hague Conference as an international organization – early innovations
4. Globalization – its effects on the nation-State

Chapter II. The impact of globalization on the development of private international law

1. Rising profile, proliferation of sources, new approaches
2. Commerce and trade: party autonomy within limits
3. Families and children: direct transnational institutional co-operation and interaction with human rights

Chapter III. Global challenges for private international law on the horizon

1. People on the move
2. Environment and climate change

Some general conclusions