Conflictoflaws

The latest issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabel Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:

Armin Steinbach, Investor-Staat-Schiedsverfahren und Verfassungsrecht (Investor-State Dispute Settlement and Constitutional Law)

Investment treaties allow foreign investors to claim damages against states before tribunals of investor-state dispute settlement (ISDS). More frequently, such dispute settlement procedures tend to replace proceedings before national courts. This has given rise to the heated debate surrounding the ongoing negotiation about the free trade agreements between the European Union and the United States of America. This article identifies and discusses the constitutional law implications of such tribunals. The composition of the tribunals of private persons, the lack of a legal ground for public policy reasons to override investors’ rights, the dynamic development of the adjudication based on vague legal terms and the lack of publicity and transparency in the proceedings – all this raises questions from the perspective of democratic principle and rule of law. Based on democratic principle doctrine, this article classifies rulings of tribunals as acts of public authority and highlights the lack of material and personal legitimacy and examines whether a state monopoly of adjudication can be derived from the separation of powers principle. It discusses the publicity and control of ISDS tribunals as an obligation enshrined in the democratic principles and highlights the missing legal reviewability of ISDS rulings compared to tribunals established under German administrative law. Finally, the article explores possible compensatory instruments addressing the identified deficits based on an application of investments treaties in line with constitutional law principles.

Reinhard Zimmermann, Das Ehegattenerbrecht in historisch-vergleichender Perspektive (The Intestate Succession Rights of the Deceased’s Spouse in Historical and Comparative Perspective)

The coordination of the position of the surviving spouse with that of the deceased’s (blood-) relatives is one of central problems faced by the intestate succession systems of the Western world. While the succession of the relatives essentially follows one of three different systems (the “French” system, the three-line system, and the parentelic system) which have remained relatively stable, the position of the surviving spouse has, over the centuries, become ever more prominent. Roman law, at the time of Justinian, took account of the surviving spouse only in exceptional situations, medieval customary law often not at all. Today, on the other hand, she (much more often than he) has worked her way up, in most countries, to the position of main beneficiary under the rules of intestate succession, for small and medium-sized estates sometimes even to the position of exclusive beneficiary.

The present essay (based on the author’s Rudolf von Jhering lecture at the University of Gießen) traces this development. In doing so it attempts, in the spirit of Jhering, not to line up the laws in the various epochs of our legal history “like pearls on a pearl string” but to look at them as part of a development and to trace their interconnections. The same idea can also be applied to comparative law in view of the fact that the modern national legal systems do not coexist in isolation but in a “system of mutual contact and influence” and, as may be added, on the fertile soil of a common legal culture. Today we find a wide-spread desire to allow the surviving spouse to remain in her familiar environment and to continue to enjoy the standard of living she has become accustomed to. Legal systems still differ as to the way in which best to achieve this aim, i.e. as to the details of the surviving spouse’s intestate succession right. An important guideline for assessing the various solutions to be found in the national legal systems is what the average deceased typically regards as reasonable, as far as the distribution of his estate is concerned. This can sometimes be gauged from the way in which wills are commonly drafted, and it has indeed guided the reforms in a number of countries. In Germany, the so-called “Berlin will” is particularly popular. Nonetheless, it does not appear to offer a satisfactory cue for the regulation of the law of intestate succession. In spite of a certain degree of arbitrariness inherent in this way of proceeding, the surviving spouse will have to be given a share (e.g. one half ) of the estate. In addition, she should be granted the right to retain the right to continue to live in the family home.

Talia Einhorn, The Common Law Foundations of the Israeli Draft Civil Code – A Critical Review of a Paradigm-Shifting Endeavor

(no English abstract available)

Diegeo P. Fernández Arroyo, Main Characteristics of the New Private International Law of the Argentinian Republic

(no English abstract available)

The Permanent Bureau of the Hague Conference on Private International Law has just published two Practical Handbooks:
* Practical Handbook on the Operation of the Service Convention (4th edition);
* Practical Handbook on the Operation of the Evidence Convention (3rd edition).

Both publications are for sale in e-Book format on the Hague Conference website here.

Here is the announcement by the Permanent Bureau, as published in the news section of the Conference’s website:
“The new editions of these Handbooks bring together and synthesise the wealth of case law and commentary on the Convention on the one hand, as well as the work of the Special Commission and practice communicated by Contracting States on the other. Furthermore, in recent years, new issues have arisen with respect to the operation of the Conventions, many of which are the result of unprecedented technological developments. Thus, these new editions also include comprehensive research and analysis relating to the use of information technology in the operation of the Conventions, an area that continues to evolve.

Before their official release, both Handbooks were formally approved by the Council on General Affairs and Policy, the highest organ of the Hague Conference on Private International Law. This of course only increases the authoritative value of these Handbooks as a secondary source of information on the operation of these important Conventions.
For more information, please see the Service and Evidence Sections of the Hague Conference website.”

Objective
This seminar will provide participants with a detailed understanding of the most recent jurisprudence of the European Court of Human Rights (ECtHR) related to family law matters.

The spotlight is centred on Article 8 (respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) and Article 12 (right to marry). The case law of the ECtHR concentrates not only on the legal implications but also on social, emotional and biological factors.

Key topics
Notion of family life – current definition and interpretation by the ECtHR
International child abduction
Balancing children’s rights, parents’ rights and public order
Surrogacy parenthood
Home births and assistance rights
Abortion
Same-sex relationships and trans individuals’ gender recognition

Who should attend?
Lawyers specialised in family law, human rights lawyers, judges dealing with family law matters, ministry officials, representatives of NGOs and child’s rights organisations.

See the full programme here.

It has already been mentioned on this blog that the European Commission is funding an international research project on “European Private International Law – Legal Application in Reality” (EUPILLAR). The project, which is led by Prof. Paul Beaumont and Dr. Katarina Trimmings from the University of Aberdeen (UK), will last for two years and involves six research partners from the Universities of Freiburg (Germany), Antwerp (Belgium), Wroclaw (Poland), Leeds (UK), Milan (Italy) and Complutense (Madrid, Spain), examining the case law and legal practice on the main EU private international law instruments in the Court of Justice of the European Union and in the participating Member States. The key objectives of the project are to consider whether the selected Member States’ courts and the CJEU can appropriately deal with the relevant cross-border issues arising in the European Union context and to propose ways to improve the effectiveness of the European PIL framework.

After a practitioners‘ workshop has already been conducted in Freiburg last year, the German branch of the project (Prof. Jan von Hein) is now organizing an academic conference which focuses on the experience gathered in German court practice so far. The conference will take place on 14-15 April 2016 in Freiburg and features high-level academics dealing with pervasive issues such as European and domestic court organization, the methods of evaluating PIL instruments and the application of foreign law in practice. Moreover, court practice on PIL instruments such as Rome I and II, Brussels I(bis) and II(bis) will be analyzed and discussed. The conference language is German and the proceedings will be published in the „Zeitschrift für Vergleichende Rechtswissenschaft“. Participation is free of charge, but requires a prior registration. For the full programme and further details, see here. For registration, please click here.

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

H.-P. Mansel/K. Thorn/R. Wagner, European conflict of laws 2015: Reappraisal
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2014 until November 2015. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

K. Kroll-Ludwigs, Conflict between the Hague Protocol on the law applicable to maintenance obligations (2007) and the Hague Maintenance Convention (1973): lex posterior derogat legi priori?
On 18.6.2011, the European Union set into force the Hague Protocol on the law applicable to maintenance obligations of 23 November 2007 and established common rules for the entire European Union aiming to determine unanimously the applicable law where debtor and creditor are in different countries. The Protocol replaced the Hague Convention of 2 October 1973 on the Law applicable to maintenance obligations. Due to its universal application, its rules apply even if the applicable law is the law of a non-Contracting State. However, note that non-EU-States, as Turkey, Switzerland, Japan and Albania are not bound by the Protocol. As well as Germany they are Contracting States of the Hague Maintenance Convention. From the German perspective, in relation to these States the question raises whether the rules of the Hague Maintenance Convention still apply. Taking into account that the Protocol – unlike the Hague Maintenance Convention – enables the parties to choose the applicable law, determining the relevant legal instrument is of great practical importance.

F.M. Wilke, The subsequent completion of German judgments to be enforced abroad
Under certain conditions, a German court can pass a judgment without a statement of facts and even without reasons. This can lead to problems abroad if the decision is to be recognized and enforced there. This is why the implementing statute concerning recognition and enforcement (AVAG) contains provisions that cover the subsequent completion of such decisions in light of certain international conventions and, so far, the Brussels regime. After the reform of the German Code of Civil Procedure (ZPO) in light of the Brussels I Recast, however, the scope of application of the AVAG does not extend to the Brussels I Regulation anymore. At first sight, this may seem plausible because of the abolition of exequatur. Yet it might be necessary for a court of an EU member state to examine the facts of a case and/or the reasons behind a decision in order to determine if its recognition/enforcement should be refused (Articles 45, 46 Brussels I Recast). This short article analyses for which cases the legal basis for subsequent completion seems to have vanished and how to deal with them. Essentially, the solutions de lege lata are to bypass the scope of application of the AVAG or to proceed by analogy. In a potential future reform, the respective AVAG provisions simply should be integrated into the ZPO.

S. Kröll, The law applicable to the subjective reach of the arbitration agreement
Defining the parties to an arbitration agreement, in particular whether nonsignatories are bound by the agreement, is one of the pervasive problems in international arbitration. It generally involves a number of conflict of laws questions some of which have been addressed by the German Supreme Court in its decision of 8 May 2014. A party’s reliance on the „group of companies doctrine“ does not relieve the courts from a detailed analysis of the various relationships involved. In most cases, it is the law governing the arbitration agreement which also determines who are the true parties to the arbitration agreement.

M. Weller, No effect of foreign mandatory provisions on arbitration agreements under German law according to § 1030 ZPO
The material scope of arbitration agreements, in particular with regard to tort claims, is a constant point of controversy before state courts. The note on the judgment by the Upper Regional Court Munich identifies opposing trends in German and European case law. The judgment also decides on the (lack of) influence of foreign mandatory provisions, arbitrability according to foreign law and the foreign ordre public on arbitration agreements, subject to German law.

C. Althammer/J. Wolber, Cross-border enforcement of coercive fine orders in Europe and limitation on enforcement
The European Court of Justice ruled in the case of Realchemie Nederland BV./. Bayer CropScience AG that decisions ordering a coercive fine fall within the scope of the Brussels I Regulation. This ruling made the German Federal Court of Justice decide upon the effects of a limitation on the crossborder enforcement of such an order. The judgment of the German Federal Court of Justice reveals a traditional understanding of the international law of enforcement and provokes the question if this approach is still appropriate for cross-border enforcement in Europe, especially as the recast of the Brussels I Regulation abolished the exequatur proceeding. The article examines the effects of obstacles resulting from national law of enforcement on the conditions of cross-border enforceability under the Brussels I and Ia Regulation. In this way the article leads into an issue that has so far not been discussed to a sufficient extent: the relationship between the cross-border enforceability of judgments and the national laws of enforcement.

P. Mankowski, Inhibitions against arrest of ships abroad inside or outside an insolvency context?
Sometimes seemingly technical cases at first instance open up a plethora of questions touching upon basics and fundamentals of international procedural law. Whether a court can inhibit parties from pursuing enforcement or arresting ships abroad in- or outside an insolvency context is precisely such a case. It touches upon the permissibility of measures against enforcement abroad and upon the universality approach in modern international insolvency law. Furthermore, it is inexplicably linked with the question to which extent (registered) ships are to be treated like real estate.

D. Otto, Internationale Zuständigkeit indischer Gerichte bei Markenverletzungen
In its decision of 15.10.2014, the Delhi High Court had to resolve whether it had competence in the international sense for a lawsuit by a U.S.-based claimant without a presence in India against an Indian-based defendant, who had his business in a different state. Under Indian civil procedure rules, a court has jurisdiction in the international sense against a defendant residing within the jurisdiction of the court. As per such rule, claimant would have to litigate before the Bombay High Court, not the Delhi High Court. The Claimant invoked a new legal provision that gives jurisdiction in disputes involving copy right or trademark violations in India also to a court at the place where the claimant carries on business. Claimant argued that it did “carry on business” within the jurisdiction of the Delhi court because its website could be accessed in Delhi. The court accepted that. This Article questions such decision as previous jurisprudence by Indian courts required that an “essential” part of claimant’s business is carried out in India; access to a website alone was deemed insufficient.

F. Heindler, Austrian Supreme Court on Remuneration of Heir Locators
The Austrian Surpreme Court in Civil Matters (Oberster Gerichtshof) has changed its jurisdiction on claims by commercial heir locators. Under Austrian law, according to the Oberster Gerichtshof, commercial heir locators are still entitled to reimbursement for expenses in negotiorum gestio. However, the amount of remuneration is no longer calculated in relation to the heir’s inheritance right.

This post has been written by Ilaria Aquironi.

On 15 April 2016 the Law Faculty of the University of Santiago del Compostela will host an international conference on Security Rights and the European Insolvency Regulation: from Conflicts of Laws towards Harmonization. The event is part of the Security Rights and the European Insolvency Regulation Project.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Univ. Autonoma of Madrid), Juana Pulgar Esquerra (Univ. Complutense of Madrid) and Anna Veneziano (Unidroit).

With a view to promote scientific debate on the topic, a call for papers has been issued. The organizers will consider papers addressing, in particular: (a) Security Rights, Set-Off, Transactional Avoidance and Conflict-of-Laws Issues; (b) Security Rights and Insolvency Law in National Legislation, in particular taking into account the New Approach to Business Failure and Insolvency as proposed by the 2014 European Commission Recommendation; (c) Harmonization Trends at an international level.

Submissions should be sent by 11 March 2016 either to Marta Carballo Fidalgo (marta.carballo@usc.es) or to Laura Carballo Piñeiro (laura.carballo@usc.es).

Further information about the project is available here. The call for papers can be downloaded here.

by Jonas Wäschle

Jonas Wäschle, LL.M. is a research fellow at the EBS Law School Research Center for Transnational Commercial Dispute Resolution at EBS University for Economics and Law in Wiesbaden (www.ebs.edu/tcdr).

The Research Center for Transnational Commercial Dispute Resolution at EBS Law School will host a lecture on cross border insolvency. Hon. Elizabeth Stong, judge since 2003 at the U.S. Bankruptcy Court, Eastern District of New York, Professor Dr Heinz Vallender, University of Cologne, former judge at the Insolvency Court of Cologne, and Jennifer Marshall, Partner in Allen & Overy London and General Editor of the Sweet & Maxwell loose-leaf on European cross-border insolvency, will talk to us on cross-border insolvencies.

The focus will be on the techniques to reconcile national principles with the challenges from international cases. Starting with a key note lecture by Stong on her experiences from a US perspective, her European counterparts will pick up the ball and present and compare European practice. The speakers will look at recent US and European cases and refer to guiding principles. This input will be measured against the principles of the UNCITRAL Model Law on Cross-Border Insolvency with its 2014 Guide to Enactment and Interpretation and the European Insolvency Regulation Recast of 2015. All attendees are invited to join the discussion chaired by Dr Oliver Waldburg, Partner in Allen & Overy.

The Lecture will be held on 18 February 2016 at 6.30 p.m. in Lecture Room “Sydney”. The program will be as follows:

Welcome and Introduction

Prof. Dr. Matthias Weller, Mag.rer.publ., EBS Law School, Wiesbaden

Keynote Lecture

Hon. Elizabeth Stong, U.S. Bankruptcy Court, E.D.N.Y.

Panel discussion

Chair: Dr. Oliver Waldburg, Allen & Overy Frankfurt

Hon. Elizabeth Stong, U.S. Bankruptcy Court, E.D.N.Y.

Prof. Dr. Heinz Vallender, University of Cologne

Jennifer Marshall, Allen & Overy London

Get-together at the Lounge of the EBS Law School

 The lecture will be held in co-operation with:

Allen & Overy | Harvard Law School Association of Germany e.V. | Deutsch-Amerikanische Juristen-Vereinigung e.V.

We would like to cordially invite you to join the lecture! Further questions and registrations may be addressed to claudia.mueller@ebs.edu.

By Verity Winship (University of Illinois College of Law).

In DIRECTV, Inc. v. Imburgia – decided on December 14, 2015 – the US Supreme Court enforced a no-class-action arbitration clause, shutting down a consumer class action.

The consumer contract at issue provided that “if the law of your state” did not allow waiver of class arbitration, the agreement to arbitrate as a whole was invalid. At the time DIRECTV drafted the contract, California law made class-arbitration waivers unenforceable. But the US Supreme Court later undid this in AT&T Mobility LLC v. Concepcion, which required California to enforce these waivers under US federal law – the Federal Arbitration Act (FAA).

Against this backdrop, the DIRECTV majority opinion navigates choice of law and the interplay between US state and federal law in a few discrete steps.

First, the parties could elect invalid California law as their choice of governing law.  “In principle,” Justice Breyer indicates, writing for the majority, parties “might choose to have portions of their contract governed by the law of Tibet, the law of pre-revolutionary Russia, or (as is relevant here) the law of California …  irrespective of that rule’s invalidation in Concepcion“.

Second, the state court held that the parties had elected invalid California law. The state court has the final word on the interpretation of state law, and contract law is at the heart of this subnational prerogative. So the Supreme Court must live with the California state court’s holding that the contractual selection of “law of your state” included now-invalid California law (the last on Justice Breyer’s list above).

But, third, the state court’s interpretation singled out arbitration contracts, so was pre-empted by the Federal Arbitration Act.

The Supreme Court reasoned that the California state court decision must not conflict with the FAA. In particular, it must put arbitration contracts on “equal footing” with all other contracts.  According to the Supreme Court, the California court singled out arbitration when interpreting the phrase “law of your state”. Federal law accordingly pre-empted its decision and the arbitration agreement must be enforced.

The two dissenting opinions make very different points.

Justice Thomas would restrict the reach of the FAA so that it does not reach state courts.

A separate dissent by Justices Ginsburg and Sotomayor highlighted the underlying dynamics that have made this area of the law so controversial in the US and that perhaps have pushed the Supreme Court to revisit these questions repeatedly in recent years. In particular, the dissent decried the majority’s reading of the FAA to “deprive consumers of effective relief against powerful economic entities that write no-class-action arbitration clauses into their form contracts.” The dissent would not “disarm consumers, leaving them without effective access to justice”.

Prof. Symeonides’ Survey of American Choice-of-Law Cases, now in its 29th year, you can download it from SSRN by clicking on this link. It is also forthcoming in the American Journal of Comparative Law, Vol. 64, No. 1, 2016. The following are some of the cases discussed in this year’s Survey:

*Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;

* A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;

* Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;

*Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;

* A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;

* Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;

* A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;

* The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;

* An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;

* A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and

* A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.

Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure was published on December, 24. Click here to access the Official Journal.

In October 2015, the long awaited Commission Report on the application of Regulation No 1896/2006 creating a European Order for Payment Procedure (that was due December 2013) was published. It generally and optimistically concludes that:

Overall, the objective of the Regulation to simplify, speed up and reduce the costs of litigation in cases concerning uncontested claims and to permit the free circulation of European payment orders in the EU without exequatur was broadly achieved, though in most Member States the procedure was only applied in a relatively small number of cases. From the studies and consultation carried out, it appears that there have been no major legal or practical problems in the use of the procedure orin the fact that exequatur is abolished for therecognition and enforcement of the judgments resulting from the procedure.

On the basis of a limited and somewhat outdated set of data the following observations are made. Annually, approximately 12.000 to 13.000 applications for the procedure are received. Most orders are issued in Germany and Austria (approx. 4.000). In seven other Member States, the number of applications is between 300-700, while in the remaining Member States the use of the procedure is very limited.

The time lapse between the application and issuing the order (that should normally not be more than 30 days according to Art. 12 of the EOP Regulation) varies considerably per Member State. Some Member States are able to issue the order within one or several weeks, while the majority of the Member States take several months and up to nine months. Only six Member States have an average length of the procedure lower than 30 days, according to available data upon which the report is based. Another important element for assessing the effectiveness of the procedure is the number of oppositions against the European order for payment; if opposition is lodged the case should proceed according to domestic procedural rules (Art. 16 and 17 EOP Regulation). This percentage varies largely, from approx. 4% (in Austria) to over 50% (in Greece). Looking at the numbers, the general trend is that in Member States where the procedure is used often the opposition rate is low, whereas in Member States where the procedure is rarely used the opposition rate is high. It would be interesting to know what causes what – the chicken and egg dilemma.The costs of the procedure vary considerably per Member State as well, and when translation of documents is required (which is the case in most countries, as the majority only accepts documents in the domestic language), the costs of the procedure are high. Furthermore, Member States have varying methods to calculate court fees.

The report rightfully concludes that Art. 20 of the EOP Regulation requires clarification as has been proposed for the European Small Claims Procedure (see our earlier post). From national case law and a number of cases that have reached the Court of Justice, notably eco cosmetics and Raiffeisenbank St. Georgen (joined cases C-119 and C-120) it is clear that not all situation where a remedy should be available due to defect service are covered by the Regulation. The Court of Justice ruled that national law should provide such remedy. This is clearly a shortcoming of the Regulation also considering that remedies in the Member State of enforcement are limited if not absent, and it (further) undermines the uniform application. On a positive note, the report concludes that generally no problems were reported in the enforcement of EOPs, except for the general lack of transparency of debtors’ assets for enforcement purposes in a cross-border context. This optimistic conclusion may, however, also be due to the lack of information on the actual enforcement track, which can generally be troublesome in many Member States. Regarding the Banco Español case (C-618/10) addressing the issue of order for payment and unfair contract terms (it concerned a clause on interest), the Report concludes that Art. 8 of the EOP Regulation requiring the court to examine whether the claim appears to be founded on the basis of the information available to it, the courts have sufficient room to take account of the principle of effectiveness. They can, for instance, on the basis of Art. 10 issue only a partial order. In addition, a full appreciation takes place after opposition. One might still question whether this satisfactorily resolves the issue, especially how this relates to the encouraged full automatization and digitalization of the procedure and how it shifts the burden to the consumer.

The report urges to raise awareness of the procedure, and suggests that the electronic processing should be maintained and improved; most Member States do not provide electronic submission possibilities for (all) parties yet. Concentration of jurisdiction, as some Member States have done, is advised, as this contributes to a swift resolution of the procedure. Swiftness in general is a problem; the report once again stresses the fact that late payments are a key cause of insolvencies in small and medium-sized enterprises. It then the EOP procedure takes 6 months, the beneficiary effect of the procedure is annihilated.

Happy holidays!

 

Thanks to the generosity of Sophie Nappert (BCL’86, LLB’86), the Nappert Prize in International Arbitration will be awarded for the second time in 2016 after an enormously successful inaugural competition in 2014. The Nappert Competition is open to all students, junior scholars and junior practitioners from around the world. To be eligible for the prize, authors must be either currently enrolled in a B.C.L, LL.B., J.D., LL.M., D.C.L., or Ph.D. program (or their local equivalents). Those who are no longer in school must have taken their most recent degree within the last three years, or have been admitted to the bar (or the local equivalent) for no more than three years (whichever is later).

Prizes: First place: Can $4,000; Second place: Can. $2,000; Third place: Can $1,000. Winning one of the awards will also carry with it the presentation of the paper at a symposium to be held at McGill in autumn 2016 (the expenses of the winners for attending the symposium will be covered). The precise date of the symposium will be fixed in the coming months. The best oralist will receive an award of Can. $1,000.

Deadline: April 30, 2016.

The essay:
• must relate to commercial or investment arbitration;
• must be unpublished (not yet submitted for publication) as of April 30;
• must be a maximum of 15, 000 words (including footnotes);
• can be written in English or in French;
• should use OSCOLA or some other well-established legal citation guide (e.g. McGill Red Book; Bluebook);
• must be in MS Word format.

Jurors for the 2016 competition will be:
• Sébastien Besson, Partner, Lévy Kaufmann-Kohler, Geneva
• Chester Brown, Professor of International Law and International Arbitration, The University of Sydney Faculty of Law
• José Feris, Deputy Secretary-General, ICC International Court of Arbitration, Paris
• Henry Gao, Associate Professor, Singapore Management University
• Meg Kinnear, Secretary-General, International Centre for Settlement of Investment Disputes, Washington, DC
• Cesar Pereira, Partner, Justen, Pereira, Oliveira, and Talamini, São Paolo
• Abby Cohen Smutny, Partner, White & Case LLP, Washington, DC

Submissions are to be emailed to Camille Marceau, Camille.Marceau@mail.mcgill.ca, as an attached file before April 30, 2016. Submissions should be accompanied by a statement affirming the author’s eligibility for the competition, confirmation that the work is original to the author, and confirmation of the unpublished status of the paper. Review of the papers will start after April 30. For more information, kindly email Mlle. Marceau, Camille.Marceau@mail.mcgill.ca, or Professor Andrea K. Bjorklund, andrea.bjorklund@mcgill.ca, Faculty of Law, McGill University.

Professor Gian Paolo Romano (University of Geneva) has just published a highly insightful paper entitled “Conflicts and Coordination of Family Statuses: Towards their Recognition within the EU?” The briefing note was prepared on request of the European Parliament as a contribution to a workshop on “Adoption: Cross-border legal issues” for JURI and PETI Committees, which took place on 1 December 2015. The paper focusses on, in the author’s words, “intra-EU conflicts of family statuses” that are bound to arise under the current legislative situation: Over the years, the European Union has adopted a wide set of Regulations that cover international jurisdiction, applicable law and recognition with regard to the legal effects flowing from a family status, while the creation or termination of family statuses are predominantly excluded from the Regulations’ scope. Thus, the question whether and on which grounds a family status awarded by one Member State is to be recognized in other Member States is still widely left to domestic PIL, often resulting in conflicts of inconsistent family statuses between Member States, which, at this stage, cannot be resolved in legal proceedings. After reflecting upon those conflicts being contrary to human rights as well as to the objectives and fundamental freedoms of the European Union and demonstrating their potential to frustrate the aims of European PIL instruments, the author discusses four possible legislative strategies for preventing conflicts of family statuses across the European Union or alleviating their adverse effects.

The compilation of briefing notes is available here (please see page 17 et seqq. for Professor Romano’s contribution).

On 6 June 2016, the 3rd Yale-Humboldt Consumer Law Lecture will take place at Humboldt-University Berlin. This year’s speaker will be Professor Richard Brooks (Yale Law School/Columbia Law School), Professor Henry Hansmann (Yale Law School) and Professor Roberta Romano (Yale Law School).

The program reads as follows:

• 2.00 p.m. Welcome by Professor Susanne Augenhofer and the Vice President for Research of Humboldt University, Professor Dr. Peter A. Frensch
• 2.15 p.m. Professor Richard Brooks, Columbia Law School
• 3.15 p.m. Coffee break
• 3.45 p.m. Professor Henry B. Hansmann, Yale Law School
• 4.45 p.m. Break
• 5.00 p.m. Professor Roberta Romano, Yale Law School
• 6.00 p.m. Panel Discussion
• 7.00 p.m. Reception

Further information regarding the event is available here. Participation is free of charge but registration is required. Please register online before 27 May 2016.

The annual Yale-Humboldt Consumer Law Lecture brings faculty members from Yale Law School and other leading US law Schools to Berlin where they spend time at Humboldt Law School. During their stay, and as part of a variety of activities, the three visitors will interact with colleagues as well as with doctoral candidates and students. Highlight of their stay is the Yale-Humboldt Consumer Law Lecture, which is open to all interested lawyers. The speakers’ remarks will be followed by discussion.

The Yale-Humboldt Consumer Law Lecture aims at encouraging an exchange between American and European lawyers in the field of consumer law, understood as an interdisciplinary field that affects many branches of law. Special emphasis will therefore be placed on aspects and questions which have as of yet received little or no attention in the European discourse.

This seventh volume in the Swedish Studies in European Law series (Hart Publishing, Oxford) brings together some of the most prominent scholars working within the fast-evolving field of EU civil justice. Civil justice has an impact on matters involving, inter alia, family relationships, consumers, entrepreneurs, employees, small and medium-sized businesses and large multinational corporations. It therefore has great power and potential. Over the past 15 years a wealth of EU measures have been enacted in this field. Issues arising from the implementation thereof and practice in relation to these measures are now emerging. Hence this volume will explore the benefits as well as the challenges of these measures. The particular themes covered include forum shopping, alternative dispute resolution, simplified procedures and debt collection, family matters and collective redress. In addition, the deepening of the field that continues post-Lisbon has occasioned a new level of regulatory and policy challenges. These are discussed in the final part of the volume which focuses on mutual recognition also in the broader European law context of integration in the area of freedom, security and justice.

The editors

 Burkhard Hess is Director at the Max Planck Institute Luxembourg for International, European and RegulatoryProcedural Law.

Maria Bergström is Senior Lecturer in EU law at the Faculty of Law, Uppsala University.

Eva Storskrubb is Marie Curie Research Fellow at Uppsala University

The Academy of European Law (ERA) will host a conference on the new proposals for Directives on contracts for the supply of digital content (COM(2015) 634 final) and contracts for the online and other distance sales of goods (COM(2015) 635 final), which were published by the European Commission on 9 December 2015 and contain a set of fully harmonized rules on e-commerce. The conference is organized by Dr Angelika Fuchs (ERA) and will take place on 18 February 2016 in Brussels. The event will offer a platform to discuss the new legislative package, which has already become the subject of highly controversial debate, at an early stage in the legislative process by bringing together representatives of the European Commission and the European Parliament as well as legal practitioners, stakeholders and academics.

Key topics will be:

• Scope of the proposed Directives
• How to define conformity?
• Remedies and exercise of remedies
• Specifics for the supply of digital content
• Looking ahead: High standards or low costs for online trade?

The full conference programme is available here.

The speakers are

• Razvan Antemir, Director Government Affairs, EMOTA, Brussels
• Professor Hugh Beale QC, University of Warwick, Harris Manchester College, University of Oxford
• Samuel Laurinkari, Senior Manager, EU Government Relations, eBay Inc., Brussels
• Professor Marco B.M. Loos, Centre for the Study of European Contract Law, University of Amsterdam
• Pedro Oliveira, Senior Adviser, Legal Affairs Department, BUSINESSEUROPE, Brussels
• Ursula Pachl, Deputy Director General, BEUC – The European Consumer Organisation, Brussels
• Professor Dirk Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, Brussels
• Professor Matthias E. Storme, Institute for Commercial and Insolvency Law, KU Leuven
• Axel Voss MEP, Rapporteur, JURI Committee, European Parliament, Brussels / Strasbourg
• Diana Wallis, President of the European Law Institute, Vienna
• Professor Friedrich Graf von Westphalen, Rechtsanwalt, Friedrich Graf von Westphalen & Partner, Cologne

The conference language will be English. For further information and registration, please see here.

In Florin Lazar, a judgment rendered on 10 December 2015 (C-350/14), the ECJ clarified the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II).

Pursuant to this provision, the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerned a traffic accident occurred in Italy, which resulted in the death of a woman. Some close relatives of the victim, not directly involved in the crash, had brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

In these circumstances, the issue arose of whether, in order to determine the applicable law under the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” within the meaning of Article 4(1), or rather as an “indirect consequence” of the event, with no bearing on the identification of the applicable law.

In its judgment, the Court held that the damage related to the death of a person in an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State must be classified as “indirect consequences” of that accident, within the meaning of Article 4(1).

To reach this conclusion, the ECJ began by observing that, according to Article 2 of the Rome II Regulation, “damage shall cover any consequence arising out of tort/delict”. The Court added that, as stated in Recital 16, the uniform conflict-of-laws provisions laid down in the Regulation purport to “enhance the foreseeability of court decisions” and to “ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage”, and that “a connection with the country where the direct damage occurred … strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage”.

The Court also noted that Recital 17 of the Regulation makes clear that “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.

It follows that, where it is possible to identify the occurrence of direct damage, the place where the direct damage occurred is the relevant connecting factor for the determination of the applicable law, regardless of the indirect consequences of the tort. In the case of a road traffic accident, the damage is constituted by the injuries suffered by the direct victim, while the damage sustained by the close relatives of the latter must be regarded as indirect consequences of the accident.

In the Court’s view, this interpretation is confirmed by Article 15(f) of the Regulation which confers on the applicable law the task of determining which are the persons entitled to claim damages, including, as the case may be, the close relatives of the victim.

Having regard to the travaux préparatoires of the Regulation, the ECJ asserted that the law specified by the provisions of the Regulation also determines the persons entitled to compensation for damage they have sustained personally. That concept covers, in particular, whether a person other than the direct victim may obtain compensation “by ricochet”, following damage sustained by the victim. That damage may be psychological, for example, the suffering caused by the death of a close relative, or financial, sustained for example by the children or spouse of a deceased person.

This reading, the Court added, contributes to the objective set out in Recital 16 to ensure the foreseeability of the applicable law, while avoiding the risk that the tort or delict is broken up in to several elements, each subject to a different law according to the places where the persons other than the direct victim have sustained a damage.

As already announced in its Digital Single Market Strategy adopted on 6 May 2015, the Commission has, on 9 December 2015, finally presented a legislative initiative on harmonised rules for the supply of digital content and online sales of goods. The Commission explains: “This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content (COM(2015)634 final), and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods (COM(2015)635 final). These two proposals draw on the experience acquired during the negotiations for a Regulation on a Common European Sales Law. In particular, they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules” (COM(2015)634, p. 1). From the perspective of legal policy, this change of approach can only be applauded (see already in this sense von Hein, Festschrift Martiny [2014], p. 365, 389: “Die beste Lösung dürfte aber eine effektive Harmonisierung des europäischen Verbraucherrechts auf einem verbindlichen Niveau darstellen, das optionale Sonderregelungen für den internationalen Handel überflüssig machen würde.”) According to the Commission, “[t]he proposals also build on a number of amendments adopted by the European Parliament in first reading concerning the proposal for a Regulation on the Common European Sales Law, in particular the restriction of the scope to online and other distance sales of goods and the extension of the scope to certain digital content which is provided against another counter-performance than money” (COM(2015)634, p. 1).

On the relationship between the new directive on certain aspects concerning contracts for the online and other distance sales of goods and the existing Brussels Ibis and Rome I Regulations, the Commission elaborates (COM(2015)635, p. 4):

“The proposal is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), which provide rules to determine the competent jurisdiction and applicable law, apply also in the digital environment. These instruments have been adopted quite recently and the implications of the internet were considered closely in the legislative process. Some rules take specific account of internet transactions, in particular those on consumer contracts. These rules aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident. Since the current proposal on the online and other distance sales of goods aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes. Together with the proposed new contract rules for online and other distance sales of goods as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests. Therefore, this legislative proposal does not require any changes to the current framework of EU private international law, including to Regulation (EC) No 593/2008 (Rome I).”

In a recent article, Samuel Fulli-Lemaire, a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg and a PhD candidate in Private International Family Law at the Paris II – Panthéon-Assas University, examined the private international law aspects of the PIP breast implants scandal.

The article, in French, appeared under the title Affaire PIP: quelques réflexions sur les aspects de droit international privé in the first issue for 2015 of the Revue internationale de droit économique, together with other papers concerning the PIP case.

Here’s an abstract of the article, provided by the author.

It is now common knowledge that the PIP company, domiciled in France, fraudulently mixed industrial-grade and medical-grade silicone gels to make its breast implants. The victims, women who have received the defective implants and have subsequently developed medical conditions, or who wish to have the implants removed or replaced as a precaution, can claim damages from a variety of actors. Because the victims, the clinics where the operations were performed, and the companies that were part of the supply chain, as well as their insurers, are domiciled in states spread all over the world, this case raises innumerable private international law issues.

This paper focuses on some of these issues, specifically those related to the tort actions which the victims can bring against the manufacturer, its executives, its insurer, and the notified body, which is the entity that was tasked with ensuring that PIP complied with its obligations under the European Union legal framework for medical products. In each case, both international jurisdiction and applicable law will be addressed.

To that end, some technical questions have to be answered first, for instance determining the place where the damage is sustained following the insertion of a potentially defective implant, or to what extent criminal courts can be expected to apply private international rules.

But on a more fundamental level, the PIP case highlights some of the shortcomings of the product liability regime in the single market. To take just one striking example, a French judge ruling on a claim against the manufacturer would apply the rules of the 1973 Hague Convention on the law applicable to products liability, while a German judge would apply the specific provision for product liability of the Rome II Regulation, a discrepancy which might ultimately result in the two claims being subject to different laws. Even though this particular field of the law has been harmonized by the 1985 Product Liability Directive, significant differences remain between the legislations of Member States, and these could have a decisive influence on the outcome of the cases.

This is just one factor that parties should take into account when deciding before which court to start proceedings, and it is likely that the significant forum shopping opportunities afforded to the victims by the Brussels I Regulation will be put to good use by the best-informed among them.

This state of affairs might legitimately be regarded as a lesser evil, since what is ultimately at stake is the compensation of victims of actual or possible bodily harm brought about by the fraudulent behaviour of a manufacturer. But the unequal treatment of victims, particularly depending on their domicile, cannot be regarded as satisfactory, any more than the considerable risk that contradictory or incoherent decisions will be rendered by the courts of different Member States, as some lower courts in Germany and France have already done.

The development of class actions, as introduced recently in French law, albeit in a very limited way, could help suppress or mitigate these difficulties, but accommodating these mechanisms within the framework of European private international law will create additional challenges.

The Federal Judicial Center (FJC) has just published the most recent item in their series on international litigation. The text, entitled “Discovery in International Civil Litigation: A Guide for Judges,” was written by Timothy Harkness, Rahim Moloo, Patrick Oh and Charline Yim. The guide joins a variety of other titles, including those on mutual legal assistance treaties (T. Markus Funk), the Foreign Sovereign Immunities Act (David Stewart), international commercial arbitration (S.I. Strong), recognition and enforcement of foreign judgments (Ron Brand), and international extradition (Ronald Hedges).

The new text can be downloaded from the FJC website here. The other texts are also available for download at fjc.gov. If you would like a free copy of the new discovery guide or any of the judicial guides on international law, just contact the FJC.