Conflictoflaws

Professor Dr. Carlos Esplugues Mota (University of Valencia) has organized an international seminar on new trends in collective redress litigation that will take place on 25 November 2016 at the University of Valencia (Spain). The seminar will be held in English and Spanish. Topics and speakers will include:

Collective actions in private international law and Spanish legal practice (Prof. Dr. Laura Carballo Piñeiro, Universidad de Vigo)

International Mass Litigation in Product Liability Cases (Prof. Dr. Jan von Hein, University of Freiburg)

Protection of mortgagors (consumers) in the EU (Prof. Dr. Blanca Vila Costa, Universitat Autònoma de Barcelona)

Class actions and arbitration (Prof. Dr. Ana Montesinos García, Universitat de València)

The New European Framework for ADR and ODR in the area of consumer protection (Prof. Dr. Fernando Esteban de la Rosa, Universidad de Granada)

An Approach to Consumer Law and Mass Redress from Civil Law (Prof. Dr. Mario Clemente Meoro, Universitat de València).

The panels will be chaired by Professor Dr. Esplugues Mota and Professor Dr. Carmen Azcárraga Monzonís. Participation is free of charge, but requires prior registration with Prof. Maria Jose Catalán Chamorro (Maria.Jose.Catalan@uv.es). The full programme with further details is available here.

Professor Marketa Trimble (UNLV School of Law) has a fascinating post on the Technology and Marketing Law Blog.  She notes that “After years of what seemed to the outside world to be a period of denial, internet companies now appear to have awakened to the idea–or at least to have acknowledged the idea–that conflict of laws does play a crucial role on the internet.”  See this link for more.

By Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.

On 10 November 2016, the Academy of European Law (ERA), in co-operation with the European Circuit, the Bar Council and the Hamburgischer Anwaltverein, hosted a conference in London on “The Impact of Brexit on Commercial Dispute Litigation in London”. The event aimed to offer a platform for discussion on a number of controversial issues following the Brexit referendum of 23 June 2016 such as the future rules governing recognition and enforcement of foreign judgements in the UK, the impact of Brexit on the rules determining the applicable law and London’s role in the international legal world.

Angelika Fuchs (Head of Section – Private Law, ERA, Trier) and Hugh Mercer QC (Barrister, Essex Court Chambers, London) highlighted in their words of welcome the significant impact of Brexit on business and the practical necessity to find solutions for the issues discussed.

In the first presentation, Alexander Layton QC (Barrister, 20 Essex Street, London) scrutinised Brexit’s “Implications on jurisdiction and circulation of titles”. He noted that the Brussels I Regulation Recast will cease to apply to the UK after its withdrawal from the EU and examined possible ways to fill the resulting void. Because an agreement between the UK and the EU on retaining the Brussels I Regulation Recast seemed very unlikely, not least because of the ECJ’s jurisdiction over questions of interpretation of the Regulation, he favoured a special agreement between the UK and the EU in regard to the application of the Brussels I Regulation Recast based on the Danish model. The ECJ’s future role in interpreting the Regulation could be addressed by adopting a provision similar to Protocol 2 to the 2007 Lugano Convention. Yet it was disputed whether or not the participation of the UK in the Single Market would be a political prerequisite for such an arrangement. He argued that there would be no room for a revival of the 1988 Lugano Convention since the 2007 Lugano Convention terminated its predecessor. Furthermore, neither a revival of the 1968 Brussels Convention nor the accession to the 2007 Lugano Convention would lead to a satisfactory outcome as this would result in the undesired application of outdated rules. In a second step Layton discussed from an English point of view the consequences on jurisdiction and on the recognition and enforcement of judgements if at the end of the two year period set out in Article 50 TEU no agreement would be reached. Concerning jurisdiction the rules of the English law applicable to defendants domiciled in third States would also apply to cases currently falling under the Brussels I Regulation Recast. In regard to the recognition and enforcement of judgements rendered in an EU Member State pre-Brussels bilateral treaties dealing with these questions would revive, since they were not terminated by the Brussels I Regulation and its successor. Absent a treaty between the UK and the EU Member State in question the recognition and enforcement would be governed by English common law. Likewise, the recognition and enforcement of English judgements in EU Member States would be governed by bilateral treaties or the respective national laws. In Layton’s opinion, the application of these rules might lead to legal uncertainty. He concluded that both the 2005 Hague Choice of Court Convention and arbitration could cushion the blow of Brexit, but limited to certain circumstances.

Matthias Lehmann (Professor at the University of Bonn) analysed the “Consequences for commercial disputes” laying emphasis on the impact of Brexit on the rules determining the applicable law to contracts and contracts related matters, its repercussions on pre-referendum contracts and potential pitfalls in drafting new contracts post-referendum. Turning to the first issue, he summarised the current state of play, meaning the application of the Rome I Regulation and Rome II Regulation, and stated that these Regulations would cease to apply to the UK after its withdrawal from the EU. In regard to contractual obligations this void could be filled by the 1980 Rome Convention, since the Rome I Regulation had not replaced the Convention completely. Still, this would lead to the application of outdated rules. He therefore recommended to terminate the 1980 Rome Convention altogether. Regarding non-contractual obligations the Private International Law (Miscellaneous Provisions) Act 1995 would apply. Lehmann noted that – unlike the Rome II Regulation – this Act contained no clear-cut rules on issues such as competition law or product liability. Because of these flaws he scrutinised three alternative solutions and favoured a new treaty between the UK and the EU on Private International Law. Even though disagreements over who should have jurisdiction over questions of interpretation could hinder the conclusion of such an arrangement the use of a provision similar to Protocol 2 to the 2007 Lugano Convention could be a way out. If this option failed, the next best alternative would be to copy the rules of the Rome I Regulation and the Rome II Regulation into the UK’s domestic law and to apply them unilaterally. As a consequence, the UK courts would not be obliged to follow the ECJ’s interpretations of the Regulations causing a potential threat to decisional harmony. Furthermore, the implementation could cause some difficulties because the Regulations’ rules are based on autonomous EU law concepts. Finally, he rejected a complete return to the common law as this would lead to legal uncertainty and potential conflicts with EU Member States’ courts. Lehmann subsequently discussed Brexit’s repercussions on pre-referendum contracts governed by English law. He submitted that in principle Brexit would not lead to a frustration of a contract. By contrast, hardship, force majeure or material adverse change clauses could cover Brexit, depending on the precise wording and the specific circumstances. Concerning the drafting of new contracts he pointed out that it would be unreasonable not to take Brexit into account. Attention should be paid not only to drafting provisions dealing with legal consequences in the case of Brexit but also to Brexit’s implications on the contract’s territorial scope when referring to the “EU”.  If the contract contained a choice-of-law clause in favour of English law, Lehmann suggested using a stabilization clause because English law might change significantly due to Brexit.

The conference was rounded off by a round table discussion on “The future of London as a legal hub”, moderated by Hugh Mercer QC and with the participation of Barbara Dohmann QC (Barrister, Blackstone Chambers, London), Diana Wallis (Senior Fellow at the University of Hull; President of the European Law Institute, Vienna and former Member of the European Parliament), Burkhard Hess (Professor and Director of the Max Planck Institute for International, European and Regulatory Procedural Law, Luxembourg), Alexander Layton QC, Matthias Lehmann, Ravi Mehta (Barrister, Blackstone Chambers, London) and Michael Patchett-Joyce (Barrister, Outer Temple Chambers, London). Regarding the desired outcome of the Brexit negotiations and London’s future role in international dispute resolution the participants agreed on the fact that a distinction had to be made between the perspectives of the UK and the EU. Concerning the latter, the efforts of some EU Member States to attract international litigants to their courts were discussed and evaluated. Moreover, Hess stressed London’s role as an entry point for international disputes into the Single Market – an advantage London would likely lose after the UK’s withdrawal from the EU. Patchett-Joyce argued that Brexit was not the only threat to London’s future as a legal hub but that there were global risks that had to be tackled on a global level. In regard to the Brexit negotiations there was widespread consensus that the discussion on the future role of the ECJ would be decisive for whether or not an agreement between the UK and the EU could be achieved. Wallis argued that Brexit might have a very negative impact on access to justice, not least for consumers. To mend this situation, Lehmann expressed his hope to continue the judicial cooperation between the EU Member States and the UK even post-Brexit. An accession to the 2005 Hague Choice of Court Convention was also advocated, though the Convention’s success was uncertain. Turning to arbitration, since, as Mehta noted, its use increased significantly in numerous areas of law, and on a more abstract level to the privatisation of legal decision-making, Wallis and Patchett-Joyce addressed the problem of confidentiality and its repercussions on the development of the law. Furthermore, Dohmann stated that it was the duty of the state to provide an accessible justice system to everybody. It would not be enough to refer parties to the possibility of arbitration. Finally, Layton argued that in contrast to the application of foreign law which would create significant problems in practise, the importance of judgement enforcement would be overstated because most judgements were satisfied voluntarily.

It comes as no surprise that these topics sparked lively and knowledgeable debates between the speakers and attendees. Though these discussions indicated possible answers to the questions raised by the Brexit referendum it became clear once more that at the moment one can only guess how the legal landscape will look like in a post-Brexit scenario. But events like this ensure that the guess is at least an educated one.

The author of this post is Kristina Sirakova, Research Fellow at the MPI Luxembourg. Thanks, Kristina.

On 24 and 25 October 2016, the Academy of European Law (ERA) in cooperation with the French Cour de cassation hosted a conference in Paris on private antitrust litigation in Europe and the challenges that the implementation of the antitrust damages package entails for the EU Member States. The speakers, who were of both academic and professional acclaim, provided interesting insights and lively debate on procedural and substantive issues, arising from the recent legislative developments in the field of private antitrust litigation. Topics included inter alia: compensation and quantification of harm suffered from competition law infringements, the role of competition authorities and of the CJEU in private enforcement, limitation periods, evidence and forum shopping considerations.

This post provides an overview of the presentations and discussions on the issues raised.

The objectives of Directive 2014/104/EU and future steps

In her words of welcome, Jacqueline Riffault-Silk, Judge at the Commercial Chamber of the Cour de cassation, addressed the objectives of the Damages Directive in light of the institutional landscape and historical background of the Directive. The first step towards the Directive was made by the CJEU which ruled in cases Courage and Crehan (C-453/99, ECLI: EU:C:2001:465, para 26) and Manfredi (C-295/04, ECLI: EU:C:2006:461, para 60) that it is “open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition”. Hence, the CJEU established the right to compensation which is the first foundation of the Directive. Furthermore, the Directive is founded on the principles of effectiveness and equivalence. The Directive was eventually proposed by the European Commission in 2013 (COM (2013) 404 final).

Eddy de Smijter, Head of the European Competition Network and Private Enforcement Unit, DG Competition, European Commission, presented the two main objectives of the Damages Directive, which the Member States must transpose by 27 December 2016. Firstly, it aims at helping victims of cartel law infringements to obtain compensation by removing practical obstacles in different national laws. Secondly, the Damages Directive serves to enhance the interplay between the public and private enforcement of competition law. With regard to Pfleiderer (C-360/09, ECLI:EU:C:2011:389), he noted that the CJEU did what it could in the absence of European legislation on the matter. The European Commission subsequently identified in this CJEU judgment a signal to become active.

Mr de Smijter then explained some of the key provisions of the Directive, focusing especially on the principle of full compensation in Article 3. He noted that even though Article 3 (3) Damages Directive excludes the award of punitive damages, the payment of interest could have a similar effect, depending on the duration of the cartel. Regarding the disclosure of evidence, he highlighted the increased possibilities for obtaining access to relevant documents in Article 5 et seq. Damages Directive. However, before granting access to documents, the courts must balance the interests involved: on the one hand, the right to full compensation shall be protected; on the other hand, effective public enforcement shall be ensured.

The morphology and mapping of antitrust damage actions

Assimakis Komninos, Partner at the Brussels office of White & Case LLP, presented “The morphology and mapping of antitrust damage actions” focusing mainly on four key points in damages litigation: types of competition law infringements, types of claimants, follow-on vs. stand-alone claims and types of harm. Firstly, he differentiated between shield litigation and sword litigation. While in shield litigation the claimant seeks for example the nullity of the contract pursuant to Article 101 (2) TFEU, in sword litigation he claims for instance injunctions, damages, restitution or declaratory relief. Secondly, Komninos explained the importance of stand-alone actions for effective judicial protection. In fact, the numbers show that stand-alone actions are more frequently filed than follow-on actions for damages. The claimant’s decision to bring a follow-on or a stand-alone action largely depends on the type of infringement. While follow-on actions are suitable to deal both with exploitative (e.g. cartels) and exclusionary infringements (e.g. foreclosure) stand-alone cases concern mainly exclusionary scenarios. Thirdly, he focused on certain specificities that depend on the type of claimant. Various procedural questions may arise depending on whether the claim was brought by direct/indirect purchasers and/or suppliers, umbrella customers, end consumers, distributors or competitors.

Liability, causality and the principles of effectiveness and equivalence

Sabine Thibault-Liger, Counsel at the Competition/Antitrust department of Linklaters in Paris, presented “Liability, causality and the principles of effectiveness and equivalence”. Starting with the principles of effectiveness and equivalence, she explained that they safeguard the effective enforcement of European law. From a substantive standpoint, the effectiveness of the right to compensation depends on the scope of liability which must be sufficiently wide to ensure that the victim is compensated for the damage suffered. In the framework of the personal scope of liability, Thibault-Liger dealt with two problems. Firstly, the Directive does not define the notion of “undertaking”; thus the question arises as to whether an injured party can sue the parent company of an infringing party. She concluded that the concept of “undertaking” shall be understood in the same way as in competition law; thus, the liability of the parental company depends on whether it had decisive influence over its subsidiaries. Secondly, she explored the several liability for multiple infringing parties as regulated in Article 11 Damages Directive. With regard to the material scope of liability, Thibault-Liger raised four main points: the presumption of damage in Article 17 (2) Damages Directive, umbrella claims, the impact of the fault of the victim and the combination of licit and anticompetitive causes for the damage.

Quantification of damages and the passing-on of overcharges

Three presentations dealt with the quantification of damages both from a legal and an economic perspective.

Firstly, Diana Ungureanu, Judge at the Court of Appeal Pitesti, Romania and Marc Ivaldi, Professor of Economics at the Toulouse School of Economics and at the Ecole des Hautes Etudes en Sciences Sociales, jointly presented “The amount of compensation”. Ungureanu focused on the principle of full compensation and the risk of overcompensation. She pointed out the inconsistency between the principle of full compensation and the court’s power to estimate the amount of harm. Thus, she concluded that full compensation is a judicial fiction. Ungureanu identified three questions that arise in the framework of the principle of full compensation: Who is damaged? How are they damaged? By how much are they damaged? Focusing on the amount of harm, she warned of the risk of overcompensation which exists in cases of supply chains. If in such a case a direct purchaser brings a claim for damages against his supplier and the defendant is unable to establish the passing-on defense, the direct purchaser would be awarded full damages for the overcharge. In an action for damages brought subsequently by an indirect purchaser against the same defendant, the claimant can rely on the presumption that the overcharge has been passed on (Article 14 (2) Damages Directive). The fact that the defendant was unable to prove the passing-on of overcharges in the previous proceedings, would not be enough to rebut the presumption, thus the defendant will have to pay again. The two judgments would not contradict to each other as each case would be decided according to the applicable rules on burden of proof. Payment of multiple damages by the defendant and unjust enrichment of at least one of the claimants would be likely to arise as a result.

Ivaldi looked at the amount of compensation “through the economic window”. He presented the damage as an economic concept, constituting the difference between the economic situation of an actor in the absence of a competition law violation (counterfactual scenario) and the economic situation of the same actor as a result of the competition law violation. He explained that from an economic perspective full compensation has three effects: a direct cost effect (direct overcharge), an output effect and a pass-on effect. The direct cost effect is the price overcharge multiplied by the total quantity purchased, yet the main challenge is to determine the overcharge. The output effect is the cost for the purchaser not to have purchased the desired amount at competitive prices. The sum of the direct cost effect and the output effect is the loss caused by the cartel. On the contrary, the pass-on effect constitutes the gains from higher downstream prices.

In the second presentation on quantification of damages Marc Ivaldi talked about “Quantification in practice: challenges and aids for the national judge”. He explained the methods for quantification of harm, which can be divided into two categories: methods based on an existing price benchmark (so called comparator-based methods) and methods based on a construction of the competitive but-for price (cost-markup methods and simulation analysis). While the comparator-based methods compare existing prices across time and/or across markets to identify the counterfactual price, the cost-markup methods and the simulation analysis construct the counterfactual price by adding to the cost a markup for reasonable profit (cost-markup methods) or a markup for maximized profit (simulation analysis).

The third presentation by Benoît Durand, Partner at RBB Economics, focused on “The study on the passing-on of overcharges arising from competition law infringements: an economic perspective” (the study is now available here). Before explaining the various methods applied to quantify the passing-on effect, Durand commented on the role of economists in private antitrust litigation. He highlighted that they not only provide a framework within which both qualitative and quantitative evidence can be evaluated, but also develop counterfactual analysis to quantify damages. He then pointed out key influences on the extent of passing-on and explained that the passing-on effect is the price increase multiplied by the quantity sold. The main challenge to the quantification of the passing-on effect is thus again to estimate the increase in price. Two approaches can be used for this purpose: Firstly, the direct approach estimates the downstream price increase applying the same comparator-based methods used to estimate the initial overcharge. Secondly, the pass-on rate approach uses the purchaser’s pass-on rate and applies it to the input cost increase.

Relationship between public and private enforcement

Wolfgang Kirchhoff, Judge in the antitrust division of the German Federal Court of Justice, presented “Relationship between public and private enforcement”. Although public and private enforcement proceedings are separate, they are related through the binding effect which the Commission’s and national competition authorities’ (NCA) decisions have on courts (Article 16 (1) Reg. 1/2003; Article 9 Damages Directive). German law goes even further than the Directive in this respect and confers on foreign NCA decisions the same binding effect as their own NCA decisions (Article 33 (4) GWB). Kirchhoff explained the scope of the binding effect on the basis of a recent Federal Court judgment in case Lottoblock II (KZR 25/14, ECLI:DE:BGH:2016:120716UKZR25.14.0). It follows from it that only the operative part of a final administrative decision and those parts of the reasons needed to support the final decision with regard to facts and law are binding for courts. He stressed the fact that the binding effect concerns only the competition law infringements and can be extended neither to causality nor to quantification of harm. Furthermore, he explored the possibilities for the Commission and NCAs to act as amicus curiae in private enforcement proceedings and described the extensive German experience with oral statements by the Federal Competition Authority which judges reportedly find very useful. The court, however, is not bound by those statements. Finally, Kirchhoff noted that experience with competition law cases and profound training in competition law are key elements to successful dispute resolution.

The role of the CJEU in interpreting Directive 2014/104/EU

Ian Forrester, Judge at the General Court of the European Union, took a step backwards from the Directive and shared some historical thoughts on the development of European competition law. He explained that in the 70s and 80s it was unusual for firms to bring claims against each other based on competition law. In the 90s, however, the institutionalization of competition law started. Leniency programs were introduced in the US and in Europe. The adoption of competition law measures became desirable and even possibilities to bring actions for damages were mentioned. Yet, in 2003, the case of Courage and Crehan showed how many instances one had to go through to actually be awarded damages suffered from anticompetitive practices. A long discussion followed which finally ended with the adoption of Directive 2014/104/EU. Judge Forrester, however, expressed some doubts about its practical impact. He made a comparison with the Product Liability Directive, which was also controversially discussed before being adopted but has not often been used. He expects that the Damages Directive will share the same destiny because the world has changed since the Directive has been discussed. The law just follows the reality. He stressed the fact that nowadays, settlements are very common in Europe and noted that the need for settlements changes legal professions. This, however, shall not diminish the importance of the Directive, preliminary questions on which will surely be directed to the CJEU. In particular, questions on access to documents, limitation periods, causation and burden of proof are very likely to arise. In his opinion, however, the answers to these particular questions will not be as important as other factors of life.

Limitation periods

Ben Rayment, experienced litigator at Monckton Chambers in London, presented “Limitation periods: When does the clock start and stop?” exploring Articles 10 and 18 Damages Directive. In his presentation he dealt mainly with three groups of issues. Firstly, he addressed factors that start the limitation “clock” and focused on the notion of “knowledge” in Article 10 (2) Damages Directive. Secondly, Rayment discussed issues around stopping the limitation “clock”. In other words, he explained under what circumstances time limits can be suspended. Problems can arise in connection with Article 10 (4) Damages Directive because it might not be sufficiently clear when an investigation of an infringement is started and/or finalized. Moreover, Article 18 Damages Directive leaves the question open as to whether formal arrangements for consensual dispute resolution are necessary to suspend the time limit. Thirdly, he addressed some transitional issues arising out of Article 22 Damages Directive. Finally, he concluded that the rules on limitation in the Directive are generous to claimants and are therefore consistent with the aim of the Directive to facilitate private enforcement.

Evidence

Eric Barbier de la Serre, Partner at Jones Day, presented issues of evidence. On the one hand, the Directive aims at facilitating compensation and solving information asymmetry between parties. On the other hand, however, coordination between public and private enforcement requires the protection of leniency statements and settlements. Barbier de la Serre discussed five types of remedies for this controversy: a change of liability test, a definition of proxies, a lower standard of proof, an introduction of presumptions and a facilitation of the collection of evidence. To a certain extent, the Directive adopts to his opinion all of them. With regard to the collection of evidence, he noted that the Directive still leaves discretion to national judges to order disclosure, so it is unclear whether there is a subjective right to it. Furthermore, it remains to be seen whether costs will act as a deterrent and whether disclosure might become a reason for forum shopping. Concerning the introduction of presumptions, he addressed the presumption in Article 9 Damages Directive that an infringement exists, the presumption of damage for cartels in Article 17 (2) Damages Directive as well as the rules concerning passing-on.

Forum-shopping considerations

Finally, a round table on forum shopping considerations and impact closed the conference.

Jonas Brueckner, Senior Associate of Baker & McKenzie’s Competition Law Practice Group, explained firstly the rules of the Brussels Ibis Regulation on the basis of case CDC Hydrogen Peroxide (C-352/13, ECLI:EU:C:2015:335) which govern the question of jurisdiction. Secondly, he presented four considerations for the choice of a forum: the applicable procedural law, the applicable substantive law, soft factors as well as the possibility for recognition and enforcement abroad. He pointed out that the softened standard of proof for damages and the possibility to litigate in English make Germany an attractive jurisdiction for claimants. However, high advance payments and a rather hostile attitude of the judiciary towards private antitrust litigation might discourage claimants to start litigation in German courts.

Ben Rayment stressed the soft factors that make the UK an attractive forum. Judges are highly specialized and have by no means a hostile attitude towards private enforcement. Furthermore, claimants are attracted by the rules on disclosure and the different funding options available. The numerous cases with which UK courts have already dealt have also led to the development of the law and have increased legal certainty.

Jacqueline Riffault-Silk noted that there are fewer cases in France than in the UK and The Netherlands. She stressed the fact that private enforcement falls under civil matters. Therefore the principle of party disposition applies. It is for the parties to start litigation and to define the subject matter of the action. A problem arises, however, when various claimants start proceedings in different Member States against the same cartel members. She noted that this deconcentration of proceedings is not favorable to private enforcement.

Comments and discussion

Each presentation was followed by a lively debate. The speakers and participants highlighted the significance of private enforcement and assessed to what extent the Directive is likely to achieve its aim of facilitating private enforcement. In particular, practical issues on quantification of damages and access to evidence were often subject to discussion. The potential consequences of Brexit on private enforcement as well as incentives for consensual settlements were also widely discussed.

Bringing together a team of researchers from Europe and Brazil (Universidade de São Paulo), the Center of Family Law of the University Jean Moulin Lyon 3, organizes an international seminar entitled:

The circulation of people and their family status in a globalized world: the foreigner’s family

The Seminar will take place in Lyon, wednesday, November 23, 2016, with the following program:

Morning: 9h – 12h30
Introduction:
What is a “foreigner”? Between regionalization and globalization, J.-S. Bergé and P. Casella (9h – 9h30)

I – The dimensions of the foreigner’s family
Presidency: P. Casella

– In the European area, Fulchiron H., A. Slimani, L. Sorisole (9h30 – 10h)
– In the South American area, G. Cerqueira (10h- 10h30)
– Debate: A. Bonomi (subject) (10h30 to 10h45)

Coffee Break: 10h45 – 11h

II – The integration of the foreigner’s family (social rights, integration policies)
Chair: F. Menezes

– In the European area, B. Baret, L. Eck (11h – 11h30)
– In the South American area, F. Menezes, D. Cordeiro (11h30 – 12h)
– Debate: Discussion A. Bonomi (subject) (12h – 12h30)

Lunch: 12h30 to 2h15

III – The protection of the foreigner’s family (entry, residence permit, displacement)
Chair: C. Moises

– Protection of fundamental rights, L. Robert, C. Moises (14h15 – 14h45)
– Protection by special statutes (political areas, economic areas), E. Durand, G. Monaco (14h45 – 15h15)

Coffee Break: 15h15 – 15h30

– Debate:  A. Bonomi (subject) (15h30 –  16h30)
– Closing, G. Monaco, H. Fulchiron (16h30 – 17h)

Seminar Directors: Hugues Fulchiron and Gustavo Monaco

Language: French

Venue: 15, quai Claude Bernard, Lyon, France – Université Jean Moulin Lyon 3 (Salle Caillemer)

No participation fee.

By James J Fawcett FBA (Professor of Law Emeritus, University of Nottingham), Máire Ní Shúilleabháin (Assistant Professor in Law, University College Dublin) and Sangeeta Shah (Associate Professor of Law, University of Nottingham)
Human Rights and Private International Law is the first title to consider and analyse the numerous English private international law cases discussing human rights concerns arising in the commercial and family law contexts. The right to a fair trial is central to the intersection between human rights and private international law, and is considered in depth along with the right to freedom of expression; the right to respect for private and family life; the right to marry; the right to property; and the prohibition of discrimination on the ground of religion, sex, or nationality.

Focusing on, though not confined to, the human rights set out in the ECHR, the work also examines the rights laid down under the EU Charter of Fundamental Rights and other international human rights instruments.

Written by specialists in both human rights and private international law, this work examines the impact, both actual and potential, of human rights concerns on private international law, as well as the oft overlooked topic of the impact of private international law on human rights.

Contents

1: Introduction
2: Human rights, private international law, and their interaction
3: The right to a fair trial
4: The right to a fair trial and jurisdiction under the EU rules
5: The right to a fair trial and recognition and enforcement of foreign judgments under the EU rules
6: The right to a fair trial and jurisdiction under national rules
7: The right to a fair trial and recognition and enforcement of foreign judgments under the traditional English rules
8: The right to a fair trial and private international law: concluding remarks
9: The prohibition of discrimination and private international law
10: Freedom of expression and the right to respect for private life: international defamation and invasion of privacy
11: The right to marry, the right to respect for family life, the prohibition on discrimination and international marriage
12: Religious rights and recognition of marriage and extra-judicial divorce
13: Right to respect for family life and the rights of the child: international child abduction
14: Right to respect for private and family life and related rights: parental status
15: The right to property, foreign judgments, and cross-border property disputes
16: Overall conclusions

For further information, see here.

Building on the very successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011) Madrid (2013), and Cambridge (2015), we are pleased to announce that the Journal of Private International Law will be holding its next Conference at the Pontifical Catholic University of Rio de Janeiro, 3-5 August 2017. We are now calling for abstracts for the Conference. Please submit an abstract if you would like to make a presentation at the Conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s).

They can be on any subject matter that falls within the scope of the Journal, and can be offered by people at any stage of their career, including postgraduate students.    The  Journal of Private International Law ( J. Priv. Int. L.) was launched in spring 2005 and covers all aspects of private international law, reflecting the role of the European Union and the Hague Conference on Private International Law in the making of private international law, in addition to the traditional role of domestic legal orders. Articles from scholars anywhere in the world writing in English about developments in any jurisdiction on any aspect of private international law are welcomed, as well as shorter articles or analysis from anywhere in the world, including analysis of new treaties and conventions, and lengthy review articles dealing with significant new publications.

Presentation at the Conference will depend on whether your abstract is selected by the Editors of the Journal (Professors Jonathan Harris of King’s College, London and Paul Beaumont of the University of Aberdeen) and by the conference organisers in the Pontifical Catholic University (Professors Nadia de Araujo, Daniela Vargas and Lauro Gama).  The subsequent article should be submitted to the Journal. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

The Conference will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning).  Please indicate on the abstract whether you are willing to present in either or are only willing to do so in one or the other. A willingness to be flexible maximises our ability to select your paper.

The Conference will be held at the main campus of the Pontifical Catholic University of Rio de Janeiro, located in Rio de Janeiro, Brazil (www.puc-rio.br). . Further information will be available soon.

Speakers will not be expected to pay a conference fee but will be expected to pay their travel and accommodation expenses to attend the Conference in Rio de Janeiro.  Information on Conference accommodation will be available soon, with a list of hotels and hostels nearby the campus, but the University does not have living arrangements  Details about accommodation and the Conference dinner on the Thursday evening will follow.

Please send your abstract to the following email address by November 15th 2016: (jprivintlrioconference2017@gmail.com

The Editors of the Cambridge International Law Journal (CILJ) and the Conference Convenors welcome submissions for the Cambridge International and European Law Conference 2017, which will be held in the Faculty of Law, Cambridge on 23 and 24 March 2017. 

Theme 

The theme of the Conference is ‘Transforming Institutions’. This theme is intended to stimulate the exploration of interactions between law and institutions in transformative contexts. Broadly conceived, transformation may refer to: (1) the manner in which the functions of institutions may change over time; (2) how institutions may act as agents of transformation; and (3) how institutions themselves can be subjected to transformation. 

Given the Conference’s focus on European and International law, the organisers invite submissions to consider how structures and norms under European and International Legal systems relate to, influence and are affected by ‘transforming institutions’.

Abstracts

Abstracts of no more than 300 words should be submitted no later than Friday, 25 November 2016.

The authors of selected papers will be required to submit a 2000 word extended abstract to conference@cilj.co.uk by Friday 24 February 2017.

Authors who present at the Conference will also be invited to submit their papers for publication in Volume 6(2) of the CILJ, to be published in the summer of 2017. Authors will be contacted about this after the Conference.

The Conference is aimed at both academic and professional attendees and will be CRD accredited.

Further Information

For further information please contact conference@cilj.co.uk

Halsbury’s Laws of Canada (first edition) has published a reissue (September 2016) of its volume on Conflict of Laws.  It is written by Professor Janet Walker, the author of the leading Canadian textbook in the field.  The reissue is highly detailed with over 260 pages of tables (cases, conventions, legislation), an index and a glossary.  The substantive content runs to over 600 pages including lengthy footnotes.  The reissue can be purchased as a stand-alone reference (without buying the entire Halsbury’s collection) for conflict of laws in Canada (publisher information available here).

I have been very kindly invited to be the speaker of the Forum Conveniens Annual Lecture at the University of Edinburgh this year. It is with great pleasure that I announce it will take place on Wednesday 23rd November 2016, under the title “Farewell, UK. Stocktaking Time for a Continental Europe’s Area of Civil Justice”. Start is foreseen at 6.00pm, at the following venue: LG.10, David Hume Tower, EH8 9JX.

Attendance is free, however registration is required. For more information  please contact:
Professor Gerry Maher (Gerard.Maher@ed.ac.uk or Dr
Veronica Ruiz Abou Nigm (V.Ruiz.Abou-Nigm@ed.ac.uk)

Forum Conveniens is a forum based at Edinburgh Law School and dedicated to International Private Law (Private International Law). Its base in Edinburgh reflects the distinctive role of Scots law in the development of the subject but at the same time the focus of the Forum is international.

It provides a means of bringing together interested parties (including academic lawyers, practitioners, the judiciary, law reformers, and policy makers) for discussion and exchange of ideas in private international law.

Professor Massimo Benedettelli (University of Bari “Aldo Moro”) has just published a highly noteworthy article entitled “Five Lay Commandments for the EU Private International Law of Companies” in the 17th Volume of the Yearbook of Private International Law (2015/2016).

The author has kindly provided us with the following abstract:

‘While praising European company law as a “cornerstone of the internal market”, the EU institutions have devoted limited attention to issues of competent jurisdiction, applicable law and recognition of judgments which necessarily arise when companies carry out their business on a cross-border basis. This is a paradox, especially if one considers that in this area the EU often follows a policy of “minimal harmonization” of the laws of the Member States and that this policy leads to the co-existence of a variety of different rules and institutions directly or indirectly impinging on the regulation of companies, thus to possible conflicts of jurisdictions and/or laws. The European Court of Justice’s “Centros doctrine” fills this gap only partially: this is due not only to the inherent limits of its case-law origin, but also to various hidden assumptions and corollaries on which it appears to be grounded and which still need to be unearthed. Hence, time has come for a better coordination of the legal systems of the Member States in the field of company law, possibly through the enactment of an ad hoc instrument. To be properly carried out, however, such coordination requires a preliminary clarification of what the EU private international law of companies really is and how it should be handled at the current stage of the European integration. This article tries to contribute to such clarification by proposing five main guidelines, in the form of “commandments” for the European legislator, courts and practitioners. It is submitted that, first, one should understand the different scope of the three legal disciplines (EU law, private international law and company law) which interact in this field so as to assess when and to what extent the lack of coordination of the Member States’ domestic laws may affect the achievement of the objectives pursued by the EU. As a second analytical step, the impact that the EU constitutional principles of subsidiarity and proportionality may have on the scope of the relevant regulatory powers of the EU and of the Member States should be determined. Third, the issue of “characterization” should be addressed so that the boundaries of company law vis-à-vis neighbouring disciplines (capital markets law, insolvency law, contract law, tort law) are fixed throughout the entire EU legal space in a uniform and consistent way. Fourth, the Member States’ legal systems should be coordinated on the basis of the “jurisdictional approach” method (which de facto inspires the ECJ in Centros and its progenies) by granting a role of prominence to the Member State under the laws of which a company has been incorporated. Fifth, any residual conflict which may still arise among different Member States in the regulation of a given company should be resolved, in principle, by respecting the will of the parties to the corporate contract and the rights “to incorporate” and “to re-incorporate” which they enjoy under EU law. In the author’s opinion, an EU private international law of companies developed on the basis of these guidelines not only would achieve a fair balance between the needs of the integration and the Member States’ sovereignty, but would also create a framework for a European “market of company law” where a “virtuous” forum and law shopping could be performed in a predictable and regulated way.’

In Endean v British Columbia, 2016 SCC 42 (available here) the Supreme Court of Canada has held that “In pan-national class action proceedings over which the superior court has subject-matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions, provided that the judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held” (quotation from the court’s summary/headnote).

The qualifications on the holding are important, since some of the earlier lower court decisions had been more expansive in asserting the inherent power of the superior court to sit outside the province (for example beyond the class proceedings context).  I am concerned about any extraterritorial hearings that are not expressly authorized by specific statutory provisions, but I do appreciate the utility (from an efficiency perspective) of the court’s conclusion in the particular context of this dispute.  It remains to be seen if attempts will be made to broaden this holding to other contexts.

The court has also held that “A video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither the [class proceeding statutes] nor the inherent jurisdiction of the court imposes such a requirement. The open court principle is not violated when a superior court judge exercises his or her discretion to sit outside his or her home province without a video link to the home jurisdiction” (quotation from the court’s summary/headnote).

This aspect of the decision concerns me, since my view is that the open court principle requires that members of the Ontario public and the media can see the proceedings of an Ontario court in an Ontario courtroom.  It is a hollow claim that they can fly to another province to watch them there.  The separate concurring decision appreciates this aspect of the case more than the majority decision, though it too stops short of requiring a video link.  In its view, “While the court should not presumptively order that a video link back to the home provinces be set up where the court sits extraprovincially, members of the public, the media, or counsel can request that a video link or other means be used to enhance the accessibility of the hearing. If such a request is made, or the judge considers it appropriate, a video link or other means to enhance accessibility should be ordered, subject to any countervailing considerations” (quotation from the court’s summary/headnote).

The European Association for Data Science (EuADS) will hold the first European Data Science Conference in Luxembourg on 7-8 November 2016. This interdisciplinary event is the inaugural conference of EuADS and aims to provide a setting for fostering communication among all stakeholders of Data Science in Europe. You may download the flyer of the conference here. Conference topics include, among others, the question of trust, transparency and provenance of data including where data come from and by which mechanisms trust in data might be achieved, as well as legal aspects of data science such as data protection, data privacy and data access. The conference will feature a symposium on “Legal dimensions of Data Science” with contributions by Burkhard Hess (MPI Luxembourg), Advocate General Pedro Cruz Villalón, Gerald Spindler (University of Göttingen), Mark D. Cole (University of Luxembourg) and Jan von Hein (University of Freiburg). The full programme is available here.

The EBS Law School in cooperation with Clifford Chance will host the EBS Law School Arbitration Day on 18 November 2016 organized by Professor Dr. Matthias Weller and Dr. Alexandra Diehl.

The event will focus on the quest for improved systems of arbitration. Topics will be:

• Dispute Resolution in Asia: Dominated by the Singaporean Merlion?
• The Iran-United States Claims Tribunal: a role model for international arbitration?
• TTIP and CETA: On a Road to Nowhere or to Success?

The speakers are:

• Claudia Annacker, Cleary Gottlieb, Paris
• Simon Greenberg, Clifford Chance, Paris
• Elan Krishna, Clifford Chance, Singapore
• Dr. Cristina Hoss, Legal Adviser to Judge Bruno Simma, Iran-US Claims Tribunal, Den Haag
• Prof. Dr. R. Alexander Lorz, Secretary for Public Education, German State of Hesse, Wiesbaden
• Representative from US Consulate General Frankfurt
• Prof. Dr. André Schmidt, EBS Business School/University Witten-Herdecke
• Prof. Dr. Mathias Wolkewitz, General Counsel Legal, Taxes, Insurances, Wintershall AG

The lectures as well as the panel discussions will be in English. The event will start at 1.30 p.m. in Lecture Room “Sydney” at EBS Law School in Wiesbaden.

For further information and registration see here.

Helmerich & Payne International v. Venezuela

On Wednesday, November 2, 2016, the Supreme Court will hear oral arguments in the case of Helmerich & Payne International v. Venezuela.  The Court granted certiorari to resolve a circuit split regarding the proper pleading standard needed to allege an expropriation claim for purposes of the Foreign Sovereign Immunities Act’s (FSIA) expropriation exception.  The FSIA provides that a foreign state and its agencies and instrumentalities “shall be immune from the jurisdiction” of federal and state courts except as provided by international agreements and by exceptions contained in the statute.  28 U.S.C. § 1604; see 28 U.S.C. § 1605-§ 1607.  The exception involved here is the expropriation exception.  That exception provides that a “foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue” and there is a specified commercial-activity nexus to the United States. 28 U.S.C. § 1605(a)(3).  The Court will resolve whether a plaintiff needs only to plead some non-frivolous facts that could show an expropriation to survive a motion to dismiss or does a plaintiff need to plausibly allege that an expropriation occurred in violation of international law.

Venezuela, the Petitioner, and the United States, as amicus curiae in support of Venezuela, argue that for a case to come within the scope of Section 1605(a)(3), the complaint must assert a claim that is legally sufficient to satisfy the provision’s substantive requirements. According to the United States, “[w]hen the foreign state challenges the legal sufficiency of the complaint’s jurisdictional allegations under Federal Rule of Civil Procedure 12(b)(1), the district court must determine whether the plaintiff’s allegations, if true, actually describe a ‘tak[ing] in violation of international law’—that is, conduct that is prohibited by international expropriation law—and identify ‘rights in property’ that were impaired as a result of the foreign state’s conduct.  If those substantive requirements are not satisfied, the foreign state is immune from suit both federal and state courts, the district court lacks subject-matter jurisdiction, and the claim must be dismissed.”  Brief of the United States as Amicus Curiae at 7-8.

Helmerich, the Respondent, argues that “nothing in the FSIA displaces the longstanding, widespread practice that the possibility a claim might fail on its merits does not defeat the court’s jurisdiction to decide the merits, at least where the claim is not ‘clearly . . . immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.’” Brief of Respondent at 14.

This case has the potential to be a blockbuster, as it will define when suits against foreign governments get through the courthouse door. The Court’s interpretation of the pleading standard for the expropriation exception will also impact the pleading standards for the FSIA’s other exceptions, such as the commercial activity exception and noncommercial tort exceptions.  The fact that the U.S. Government will participate in oral argument as amicus curiae in support of Venezuela will also be noteworthy, given that the Obama Administration recently suffered its first override of a presidential veto when the House and Senate voted against the President’s objection to a bill that amended the FSIA to allow family members to sue Saudi Arabia over claims it aided or financed the Sept. 11 terrorist attacks.

On 2 December a Conference on Family law and Moroccan nationals living abroad will take place in Brussels. This conference will be in French.

Here is the background:
In 2004 Morocco adopted a new Family Code (MFC). On the occasion of the 10th anniversary of the entry into force of the MFC (2004-2014) a comparative research on the application of the MFC in Europe and Morocco has been undertaken under the direction of Professor Marie-Claire Foblets (Max Planck Institute Halle and KULeuven). For five European countries with the largest population of Moroccan residents (Belgium, France,
Italy, the Netherlands and Spain) an in-depth analysis of the case law available since 2004 has been made. This analysis provides a more concrete idea of the problems raised by the application of the MFC since 2004 and especially of the legal problems affecting the family lives of Morrocan nationals living abroad (MNAs). Besides the analysis of the case law of the European countries, a study of the Moroccan case law concerning MNAs and a field study at three Moroccan consulates in Europe have been undertaken.

The full programme and enrolment information are available here (link at the bottom of the page).

The Academy of European Law (ERA) will host a conference on the new Regulation (EU) 655/2014 establishing a European Account Preservation Order (EAPO), which will become operational from January 2017. The conference, which will take place on 1–2 December 2016 in Trier (Germany), will focus on the practical implications of the new instrument for commercial parties, including banks.

Key topics will be:

• The EAPO and its interplay with other EU Regulations and national law
• Obligations of the banks operating in the Member States
• Scope and procedure for obtaining an EAPO
• Enforcing and resisting enforcement of an EAPO
• Maintaining surprise vs protecting the debtor
• EAPO, US and UK (worldwide) freezing orders

The conference language will be English. The event is organized by Dr Angelika Fuchs (ERA). The programme is available here.

The confirmed speakers are:

• Gilles Cuniberti, Professor at the University of Luxembourg
• Joseph Delhaye, Head Legal and Senior Vice President at the State and Savings Bank, Luxembourg
• Pietro Franzina, Associate Professor at the University of Ferrara
• Sarah Garvey, Counsel and Head of Litigation KnowHow and Training, Allen & Overy LLP, London
• Burkhard Hess, Professor and Director of the Max Planck Institute for International, European and Regulatory Procedural Law, Luxembourg
• Clara Mara-Marhuenda, Counsel Dispute Resolution, Arendt & Medernach, Luxembourg
• Fernando de la Mata, Partner, Baker & McKenzie SLP, Barcelona
• Brandon O’Neil, Senior Associate, Allen & Overy LLP, London
• Philippe-Emmanuel Partsch, Partner, Arendt & Medernach, Luxembourg
• Katharina Raffelsieper, Avocate, Thewes & Reuter – Avocats à la Cour, Luxembourg
• Daniel Staehelin, Professor, Attorney and Notary Public, Partner, Kellerhals Carrard, Basel
• Heinz Weil, Avocat & Rechtsanwalt, Chairman of the European Committee of the German Federal Bar (BRAK), Weil & Associés, Paris

Registrations before 1 November 2016 will benefit from an “early bird” rebate. After this deadline, however, discounts will be available for young lawyers and academics. For further information and registration, please see the conference website.

The EUFam’s Project’s Consortium is glad to announce that the first version of the EUFam’s case-law database, filled in the past months by all partners of the project, is now available for public consultation.

Currently, the database contains data concerning over 400 decisions applying the European Union Regulations on cross-border litigation in family matters, issued by the courts of Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Italy, Slovakia, and Spain.

The consortium will keep the database up to date and publish new versions of the file in the upcoming months in the section ‘Public Database’ of the EUFam’s website, in order to keep it up-to-date with the new cases that all partners will classify until December 2017, date of the end of the project.

Website: www.eufams.unimi.it

Facebook page: www.facebook.com/eufams

On the project:

The Project ‘Planning the future of cross-border families: a path through coordination’ (EUFam’s – JUST/2014/JCOO/AG/CIVI/7729) aims at analysing is the practice of several Member States concerning the application of EU Regulations No 2201/2003, No 1259/2010, No 4/2009, and No 650/2012, as well as the 2007 Hague Maintenance Protocol, and the 2007 Hague Recovery Convention.

The purpose of the research activity is to identify the difficulties met by courts and practitioners in applying the rules laid down in the regulations, and to collect and share the solutions and best practices adopted by them in order to overcome such issues.

Partners of the Project are: the University of Milan (coordinator), the University of Heidelberg, the University of Osijek, the University of Valencia, the University of Verona, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, the Italian Family Lawyers Association (AIAF), the Spanish Family Lawyers Association (AEAFA), the Italian Judicial Academy (SSM), and the Croatian Judicial Academy.

The EUFam’s Project is co-funded by the Directorate-General for Justice and Consumers of the European Commission, within the programme ‘Projects to support judicial cooperation in civil or criminal matters’ (Justice Programme).

The e-mail contact for further information is: eufams@unimi.it

On 29 September 2016, Wilmer Cutler Pickering Hale and Dorr LLP and Wolters Kluwer co-hosted a seminar in London to mark the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration. The speakers comprised of the authors of the articles within the BREXIT issue, who discussed varied topics relating to Brexit and private international law. Leading the seminar were Professor Dr Maxi Scherer, special counsel at Wilmer Cutler Pickering Hale and Dorr LLP and the journal’s general editor, and Dr Johannes Koepp, partner at Baker Botts LLP and the special issue editor.

The speakers, who were of both academic and professional acclaim, provided interesting insights and lively debate on the multifaceted impacts that Brexit could have on the UK’s legal landscape. Topics included Brexit’s effect on: London as a seat for international dispute resolution; recognition and enforcement of foreign judgments; UK competition litigation and arbitration; and intellectual property disputes.

This post, which has been kindly sent to me by Reyna Ge (BCL Candidate, University of Oxford) serves to provide an overview of the presentations and issues raised. A full recording of the seminar is available here, with a shortened version including the highlights of the event here.

London as a Seat of International Dispute Resolution in Europe

Michael McIlwrath, Global Chief Litigation Counsel of GE Oil & Gas, presented via videoconference “An Unamicable Separation: Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe”. In determining the impact that Brexit might have on London as a seat for international commercial arbitration, he suggested that London would lose cases in the short- to medium- term, while long-term growth would be subject to other assumptions. However, he also noted that Brexit would most likely not impact the trend of increased growth in the appointment of UK arbitrators.

EU Law and Constitutional Law Questions

Dr Holger Hestermeyer, Shell Reader in International Dispute Resolution, King’s College London, presented “How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit”. Dr Hestermeyer explained that Article 50 of the Treaty of the European Union required a Member State to make a decision to withdraw from the EU in accordance with that State’s constitutional law, with the conclusion that the referendum itself was not legally binding. It is controversial whether a binding decision ought to be made by the Government on the basis of royal prerogative (as argued by the UK Government) or on the basis of a Parliamentary decision. Dr Hestermeyer also explored the process of leaving the EU, which would comprise negotiations for a “divorce agreement” and “future agreement”. This raised questions concerning the conduct of negotiations, the need for ratification of such agreements by the EU Member States and the UK, and the potential involvement of the European Free Trade Association States (“EFTA States”).

Brexit and the Brussels Regime

Sara Masters QC and Belinda McRae, barristers practising at 20 Essex Street Chambers in London, presented “What Does Brexit Mean for the Brussels Regime?” They examined what would be the effect of Brexit on the two main instruments on the allocation of jurisdiction and on the recognition and enforcement of foreign judgments, the Brussels I Regulation (Recast) (“Recast Regulation”) and the Lugano II Convention.

McRae explained the three academic possibilities that could arise if no agreement or decisions be made in this area, and concluded that a lack of action by the government concerning this framework would be very concerning for commercial parties.

Masters QC stated that the best outcome would be to negotiate a regime that is as close to the Recast Regulation as possible. The next best alternative would be to accede to the Lugano II Convention, even though this would mean that the innovations introduced by the Recast Regulation would not be present. Otherwise, the UK could accede to the Hague Choice of Court Convention, which could be a good short-term solution as it has the advantage of not being dependent on the reciprocity of the EU.

UK Competition Litigation and Arbitration

Paul Gilbert, Counsel at Cleary Gottlieb Steen & Hamilton LLP, presented “Impact of Brexit on UK Competition Litigation and Arbitration”. Gilbert commented that there were signs that the UK government was moving toward a “hard Brexit” in relation to competition law. This would mean that more cases would be looked at within the UK, instead of providing Brussels with the sole jurisdiction over cases such as cartels.

Gilbert noted that the effect on competition litigation, in the form of follow-on actions, would be more difficult to predict. Following Brexit, EU cases would no longer be binding. Even if the UK decides to apply UK competition law consistently with EU law, future EU Commission decisions may not make further reference to the position in the UK on competition matters and thus make alignment difficult. Additionally, it was unclear what information would be released to claimants, and a finding of infringement pursuant to EU law may not necessarily be a basis for bringing a damages claim in a UK court. The implementation of the Damages Directive in the EU would also impact competition law.

Intellectual Property Litigation and Arbitration

Annet van Hooft, Partner at Bird & Bird LLP, presented “Brexit and the Future of Intellectual Property Litigation and Arbitration”. She noted that Brexit has impacted the creation of the Unitary Patent Court (“UPC”). Whether the UK would ratify the UPC regime and the future of the subdivision of the UPC that was to be located in London are two examples of issues arising from Brexit. The UPC, therefore, would experience delays in implementation.

Regarding trademarks and designs, while UK trademarks and designs would be unaffected, there would be uncertainty concerning the future treatment of community trademarks and designs in the UK. Van Hooft noted further uncertainty concerning database rights, the enforcement of pan-EU relief for unitary rights, exhaustion and licenses.

Intra- and Extra-EU Bilateral Investment Treaties

Markus Burgstaller, Partner at Hogan Lovells International LLP, presented “Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs”. With regard to intra-EU BITs, Burgstaller argued that such BITs would likely be found to be incompatible with EU law, and noted that the European Commission had called for the termination of the intra-EU BITs as early as in 2006. However, many States had not terminated these BITs, as was the case with the UK. Currently, the ECJ is set to rule upon the compatibility of intra-EU BITs in the case of the Netherlands-Slovakia BIT. Upon UK withdrawing from the EU, the intra-EU BITs would lose their intra-EU character.

Comments and discussion

Following presentation by the speakers, lively debate was entertained concerning the topics. The speakers and participants highlighted the importance of seeking agreement on matters such as BITs and the replacement for the Brussels Regime with the EU, for the purpose of promoting legal certainty. The potential for growth in the use of international arbitration, for the purposes of capitalising on the recognition and enforcement framework provided by the New York Convention, was also raised.

By Implementing Regulation (EU) 2016/1823 of 10 October 2016, the European Commission has established the forms referred to in Regulation (EU) No 655/2014 of 15 May 2014 on the European Account Preservation Order (EAPO) procedure, an ex parte procedure that applies in cross-border cases and is intended to allow creditors to preserve funds in bank accounts under uniform conditions in all EU Member States (with the exception of the UK and Denmark). The procedure will become available on 18 January 2017.

The forms established by the Commission include, inter alia, the form to be used by the creditor to apply for a EAPO, the forms to be used by the court for the issue and the revocation of a EAPO, and the form to be used by the debtor to apply for a remedy against a EAPO. Each form comes with an explanatory text providing practical guidelines.

The Commission is now expected to make publicly available the information that the Member States, pursuant to Article 50 of Regulation No 655/2014, were required to provide before 18 July 2016 as regards the organisation of the EAPO procedure in their legal systems (such as the courts designated as competent to issue a EAPO and the authorities charged with the enforcement of EAPOs).