Conflictoflaws

The Hague Conference on Private International Law (HCCH) and the World Intellectual Property Organization (WIPO) have just launched a questionnaire that aims to identify problems of private international law, from jurisdiction to enforcement, relating to disputes involving intellectual property. The questionnaire is adressed to the member states of both organisations and other intergovernmental organisations as well as to individual practitioners, academics and other interested parties. It will inform the future work of both organisations on the intersection between PIL and IP.

The English version of the questionnaire can be found here; further information can be found here and here. Readers of this blog with an expertise and/or interest in IP are warmly invited to participate before the end of the consultation on 30 June 2021.

 

Back in January, we reported about the Opinion presented by AG Campos Sánchez-Bordona in the case CNP, C-913/19. At the request of the Court, the Opinion addressed only the second preliminary question on the branch jurisdiction under the Brussels I bis Regulation. This Thursday the Court delivered its judgment, which answers the second as well as two other (first and third) questions of the referring court, pertaining to the jurisdiction in matters of insurance.

The outline of the factual and legal contexts of the case can be consulted in the previous post. Remarks on the EU legal framework of relevance for the issues raised by the present case were made by Geert Van Calster and they should still be a point of consideration for those wishing to delve thoroughly into these issues.

Factual context in the main proceedings

In brief summary, an owner of a vehicle damaged in a road accident occurred in Poland assigns the claim against a Danish insurer covering, under a motor liability insurance, the liability of the person responsible for the accident to an automobile repair workshop, which provides a replacement vehicle to the assignor. Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

In its attempts to obtain the payment corresponding to the rental amount for the replacement vehicle, CNP is interacting with two companies established in Poland that represent the interests of the insurer in this Member State, namely Polins and Crawford Polska.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. The national court decides to refer three question for a preliminary ruling.

Jurisdiction in matters relating to insurance and assignment of claims

At the outset the Court clarifies that it deems it appropriate to examine together the first and third questions by which, as the Court puts it, the referring courts asked, in essence, whether Article 13(2) the Brussles I bis Regulation, read in conjunction with Article 10 thereof, must be interpreted as precluding jurisdiction being founded independently under Article 7(2) or Article 7(5) of that Regulation in the case of a dispute between, on the one hand, a professional which has acquired a claim originally held by an injured party against a civil liability insurer and, on the other hand, this insurer.

It seems that the referring court invited the Court to examine whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional is barred from relying on the rules on jurisdiction of the Section 2 (as an action in matters relating to insurance is covered exclusively by the Section 3), namely on Article 7(2) and (5) of the Brussels I bis Regulation.

After reminding that an entity that recovers claims from insurance undertakings has to be considered as a professional in insurance sector (paragraph 43), the Court examines whether such professional is barred from relying on Articles 7(2) and (5) of the Brussels I bis Regulation and answers this question in the negative (paragraph 46).

On a side note, as previously hinted, in the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. The latter sought to build up upon this particularity an argument in its favour in the proceedings pending before the Polish court.

While the particularity in question, which distinguishes the present case from the case Hofose (where the owner of the damaged vehicle assigned the claim against the insurer directly to the applicant in the main proceedings), is not reflected in the wording of the preliminary questions, the Court does seem to hint it the presentation of these questions (“claim originally held by an injured party”, paragraph 29). However, it seems to be of no relevance as “no special protection is justified where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other” (paragraph 40). Besides, the request for a preliminary ruling arose out of the proceedings to which the repair workshop is not a party.

Notion of “branch, agency or other establishment”

By its second question, the referring court asked, in essence, whether Crawford Polska must be regarded as being a “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

Against this background, just as AG in his Opinion, the Court had to establish which of the two companies representing the insurer’s interests in Poland (Polins or Crawford Polska) is the relevant entity for the purposes of Article 7(5) of the Brussels I bis Regulation (see points 53 – 58 of the Opinion). The Court held that referring court is seeking guidance about the scope of this provision in the light of the activity of Crawford Polska, this company had been “instructed by [the insurer] to adjust the claim at issue in the main proceedings” (paragraph 53).

In line with the Opinion, the Court considered that an undertaking which adjusts losses in the context of motor liability insurance in one Member State pursuant to a contract concluded with an insurance undertaking established in another Member State, in the name and on behalf of that undertaking, must be regarded as being a branch, agency or other establishment, within the meaning of that provision, where that undertaking:

• has the appearance of permanency, such as an extension of the insurance undertaking; and
• has a management and is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the insurance undertaking (paragraph 61).

On a side note, in its request for a preliminary ruling, the referring court sought to establish whether the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) may impact the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation.

In this regard, the Court notes that the interpretation of the latter must be performed in an independent manner (paragraph 60). The judgment echoes therefore the case law built up upon the judgment in Kainz, C-45/13, paragraph 20 (Brussels I Regulation/Rome II Regulation), and brings to mind in particular the judgment in Pillar Securitisation, C-694/17, paragraph 35 (Lugano II Convention / Directive 2008/48/EC on credit agreements for consumers).

The judgment, which is also the subject of a press release, can be consulted here.

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Posted at the request of Aastha Asthana, Managing Editor, Trade Law and Development

CALL FOR SUBMISSIONS

General Issue

Issue 13.2 | Winter ’21

The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished
manuscripts for publication in the Winter ’21 Issue of the Journal (Vol. 13, No. 2) in the form of
‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a
constructive and democratic debate on emergent issues in international economic law and to serve
as a forum for the discussion and distribution of ideas. Towards these ends, we have published
works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann,
Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel
Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah
among others. TL&D also has the distinction of being ranked the best journal in India across all
fields of law for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts received by August 1st, 2021, pertaining to any area within the purview of international
economic law will be reviewed for publication in the Winter ’21 issue.

Manuscripts may be submitted via e-mail. For further information about the Journal, please
click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 01 AUGUST, 2021

 

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn
Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W.
Michael Reisman | M. Sornarajah | FACULTY-IN-CHARGE: Dr. Rosmy Joan | BOARD OF
EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Aastha Asthana|
Abilash Viswanathan| Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi
John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi
Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary |
Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran
Bherwani | Sneha Naresh | Vipashyana Hilsayan

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 5th CPLJ Webinar on 4 June 2021, 4:00 – 6:15 pm (CET).

The programme reads as follows:

Chairs:  Margaret Woo (Northeastern University and CPLJ Editor) and Burkhard Hess (Max Planck Institute Luxembourg for Comparative Procedural Law and CPLJ Editor)

4:00 PM          Ralf Michaels (Max Planck Institute Hamburg for Comparative and International Private Law)

            Decoloniality and Comparative Civil Procedure

4:30 PM          Discussion

5:00 PM          Intermission

5:15 PM          John Haley (University of Washington)

            Historical and Political factors Influencing Dispute Resolution

5:45 PM          Discussion

6:15 PM          End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 1 June 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

 

The Nigerian Group on Private International Law (“NGPIL”) will hold its inaugural lecture on June 21, 2021 at 6pm CEST and 5pm BST. Registration and attendance online is free. For more information on the programme and registration  see the  NGPIL flyer and the NGPIL inaugural programme.

 

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. It will take place on Monday 24 May 2021 at 11 am (Washington USA time). For more information, click here.

This event will be held in Spanish only and is free of charge. The event will also be streamed live via social media networks.

This event follows an important and recent milestone of the OAS in which the Inter-American Juridical Committee completed its 98th Regular Session approving the Principles on Privacy and Protection of Personal Data and Supporting the Hague Principles on the Choice of Law Applicable to International Commercial Contracts. Click here for the specific resolution (9 April 2021) and here for general information.

In February 2019, the Inter-American Juridical Committee adopted the “Guide on the Law Applicable to International Commercial Contracts in the Americas.”

The preliminary programme for the TMC Asser Institute Masterclass on investing in English speaking Africa through private international law is now out.

During a two-day masterclass Chukwuma Okoli from the TMC Asser Institute will be joined by experts in the field of private international law such a Dr Pontian Okoli, lecturer in Private International Law and Commercial Law at the University of Stirling, Scotland, Professor Elsabe Schoeman, Dean of the Faculty of Law at the University of Pretoria, South Africa, Richard Frimpong Oppong, Associate Professor a the University of Bradford School of Law, and Anthony Kennedy, Associate Member of Serle Court Chambers in London.

 

These professionals will offer you theoretical and practical insights into commercial law, private international law and transnational litigation. Among other topics, they will discuss the questions of jurisdiction, choice of court agreements, foreign currency obligations, and recognition and enforcement of foreign judgments. Knowledge of these topics in English-speaking Africa is essential for effective investment, as the number of international commercial transactions on the continent grows.

 

For more information please visit the event page.

 

Relevance for investment

Africa’s population is approximately one billion people, and its growing population is expected to reach nearly 2.2 trillion dollars in consumer spending by 2030. The recent African Continental Free Trade Area (AfCTA) Agreement seeks to create free movement of persons, goods and services within the African Union. This has accentuated the role of private international law in resolving potential cross-border disputes involving international commercial actors. Lawyers, judges, arbitrators and other stakeholders will have to gain advanced knowledge of the specific operation of private international law in the African context.

 

PO points

Dutch lawyers can obtain 10 PO points for their attendance.

 

About the masterclass series

Lifelong learning is essential for those engaged in today’s legal and business world. The Asser Academy Masterclass series are short courses tailored to professionals who wish to deepen their knowledge, stay up-to-date and remain competitive by mastering skills the global market needs. The Asser Academy Masterclass series will combine the cutting-edge knowledge of academia with the hands-on experience of practitioners.

 

Date: 24 – 25 June 2021

Fee: €995,- €745,-(IJI and Asser clients),- €495,-(Students and NGO-workers)

Venue: Online

Organiser: T.M.C. Asser Instituut

The latest issue of RabelsZ has just been published. It features the following articles:

Horst Eidenmüller: Recht und Ökonomik des Extremsport-Sponsorings in vergleichender Perspektive, Volume 85 (2021) / Issue 2, pp. 273-325 (53), DOI: 10.1628/rabelsz-2021-0002

The Law and Economics of Extreme Sports Sponsoring in Comparative Perspective. – This article investigates the law and economics of extreme sports sponsoring in a comparative perspective. It is based on 40 structured interviews with sponsored athletes from various common law and civil law jurisdictions. The article demonstrates that the current contracting practice is unbalanced and inefficient. It entices athletes to take unreasonably high risks. There are ways to significantly increase the cooperative surplus compared to the status quo. The article further demonstrates that sponsor firms face increased and mandatory duties of care towards young and/or inexperienced athletes. In particular, such athletes should not be influenced by bonus systems in their risk-taking behaviour. The duties of care of a sponsor under contract and/or tort law are also determined by the degree of control exercised by a sponsor and the economic dependence of the athlete on the sponsor. This allows creating a finely tuned regulatory system that, unlike the dichotomy of an independent contractor and dependent worker, is better able to do justice to individual cases.

Arnald J. Kanning: Unification of Commercial Contract Law: The Role of the Dominant Economy, Volume 85 (2021) / Issue 2, pp. 326-356 (31), DOI: 10.1628/rabelsz-2021-0003

This paper is about the unification of commercial contract law. Showing that the legal rules preferred by the “dominant economy” frequently end up in uniform commercial contract laws does not show that those legal rules are inherently superior to any other legal rules. It will be argued that approval of a uniform commercial contract law by the “dominant economy” is the environmental factor that is crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the “dominant economy”. Within the conceptual framework of historical and comparative institutional analysis (HCIA), a study is offered of several well-known attempts to unify (and codify) divergent bodies of commercial contract law in the past two centuries. The argument is not so much that the American UCC Article 2 on Sales greatly influenced the CISG as that United States adoption of the CISG was crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the United States.

Justus Meyer: Die praktische Bedeutung des UN-Kaufrechts in Deutschland, Volume 85 (2021) / Issue 2, pp. 357-401 (45), DOI: 10.1628/rabelsz-2021-0004

The Practical Significance of the CISG in Germany. – The UN Sales Law is in different respects a clear success: worldwide, reforms of contract law are oriented towards the CISG. In September 2020 Portugal became the 94th contracting state. The importance of international trade in goods is steadily increasing. However, there is still uncertainty about the acceptance of UN sales law by internationally operating companies and their legal advisors. The present study is based on a survey of 554 attorneys in Germany and compares the answers with results from 2004 as well as from Austria and Switzerland. According to this survey, the international sales contracts heard by courts and arbitrators are predominantly not subject to UN sales law and the proportion of those who regularly use a choice-of-law clause with CISG exclusion has even risen from 42.2 to 52.9 % since 2004. In Austria and Switzerland this proportion has also risen and is even higher than in Germany. Many lawyers are well aware of the advantages of a neutral legal regime. However, it seems to be easier for them to recommend choice-of-law clauses that exclusively invoke domestic law.

Krzysztof Riedl: Natural Obligations in Comparative Perspective, Volume 85 (2021) / Issue 2, pp. 402-433 (32), DOI: 10.1628/rabelsz-2021-0005

A natural obligation (obligatio naturalis) is a legal construction whose roots stretch back to Roman law. This common source means that we will find similar solutions in legal systems descended from Roman legal culture – with respect to both the understanding of natural obligations and specific instances where they arise. The aim of this paper is to answer the question of whether these different systems define natural obligations in the same manner or whether the natural obligations encountered in these systems are distinct legal institutions sharing only a common name. In this paper, the various approaches of contemporary legal systems to this issue are characterized. Then, a comparative-law analysis focuses on three fundamental aspects of natural obligations: their legal construction (definition), a catalogue of instances, and their legal effectiveness. Under the constructional perspective, two basic models of obligatio naturalis are distinguished and discussed – the obligative model and the causal model – and it is around these two models which the particular conceptions converge. The analysis presented in the paper demonstrates that the similarities between the various models outweigh the differences. This permits us to refer to obligatio naturalis as a universal legal construction.

The Conference “the Office of the Judge and the Conflict-of-Law Rule” (L’office du juge et la règle de conflit de lois) will be held on Monday 17 May 2021 (in French) and will be streamed live via the Cour de cassation website and social media networks.

This Conference is part of the Lecture Series “Thinking about the office of the judge” (Penser l’office du juge) – 2020-2021 (directed by Sylvie Perdriolle, Honorary President of the Chamber, Sylvaine Poillot-Peruzzetto, Judge at the French Cour de cassation, and Lukas Rass-Masson, professor at the University of Toulouse 1 Capitole).

The programme is as follows:

5:00 p.m. – The Office of the Judge and the Nature of the Conflict-of-Law Rule
Nicolas Nord, Secretary General of the International Commission on Civil Status, Co-chairman of the China Section of the Société de législation comparée
Gian Paolo Romano, Professor at the University of Geneva, Co-director of the Yearbook of International Private Law

5:40 p.m. – The Office of the Judge and the European Conflict-of-Law Rule
Lukas Rass-Masson, Professor at the University of Toulouse I Capitole, Director of the European School of Law Toulouse

6:05 p.m. – The Office of the Judge and the Application of the Conflict-of-Law Rule
François Mélin, Judge at the Court of Appeal of Paris

18:30 p.m. – Discussion

Moderators:
François Ancel, President of the International Commercial Chamber of the Paris Court of Appeal
Gustavo Cerqueira, Professor at the University of Nîmes, France

 

In response to the EU Commission’s formal refusal to allow the UK to accede to the Lugano Convention, a coalation between several NGOs and legal scholars, lead by the European Coalition for Corporate Justice (ECCJ) has issued an open letter, calling upon the EU to reverse this decision. In essence, they argue that a full return to the common-law rules on jurisdiction, including the forum non conveniens doctrine, will reduce access to the UK courts in cases of corporate human-rights abuses, which has only recently been rendered much more attractive by the UK Supreme Court’s decisions in Vedanta v Lungowe [2019] UKSC 20 and Okpabi v Shell [2021] UKSC 3.

The full letter can be found here. It is still open for signatures (via e-mail to christopher.patz[at]corporatejustice.org).

 

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a Legal Officer (Maternity Leave Replacement). The successful candidate will work primarily in the field of family law, focusing on the 1980 Child Abduction and 1996 Child Protection Conventions as well as on the Family Agreements project.

Applications should be submitted by Monday 31 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

In December 2020, we reported about the Opinion presented by Advocate Generale Campos Sánchez-Bordona in the case Vereniging van Effectenbezitters, C-709/19. Today, the Court delivered its judgment in this case.

In brief, the request for a preliminary ruling arose out of the proceedings pertaining to a collective action for a declaratory judgment brought by an association against an oil and gas company on behalf of investors who bought, held or sold the ordinary shares through an investment account in the Netherlands. The association argued that this internationally listed company acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about the circumstances pertaining to, inter alia, an explosion resulting in an oil spill. It is in this context that the referring court requested the Court of Justice to interpret Article 7(2) of the Brussels I bis Regulation.

At the request of the Court, in his Opinion of last December, AG Campos Sánchez-Bordona addressed two first preliminary questions. Thus, the third and fourth preliminary questions on international and internal territorial jurisdiction to hear subsequent individual claims of the investors were not addressed in the Opinion.

Ultimately, the third and fourth questions do not receive a definitive answer in the judgment either. The Court held that these questions are inadmissible as they are of hypothetical nature – in the proceedings pending before the referring court, no subsequent individual claim is concerned (paragraphs 38 and 39).

As to the first and second preliminary questions, these are worded as follows:

(1) (a)      Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (“Erfolgsort”)?

(b)      If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances [namely, the fact that the international listed company focuses on global investment public, including the investors in the Netherlands, and the association represents a considerable number of investors in this Member State, the fact that the settlement reached by the international listed company with a number of shareholders in the United States of America was not proposed to the investors represented by the association and, lastly, the fact that the shareholders for whom this association is acting include consumers to whom the Brussels I bis Regulation affords special legal protection] sufficient to found the jurisdiction of the Netherlands courts?

(2)      Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

 

In its judgment, the Court answered together this questions (paragraph 22) and held that Article 7(2) of the Brussels I bis Regulation must be interpreted to the effect that the direct occurrence, in an investment account, of purely financial damage resulting from investment decisions made on the basis of information which was readily available worldwide, but which was incorrect, incomplete and misleading and emanated from an international listed company, does not allow the international jurisdiction of the court of the Member State in which the bank or investment firm that holds that account is established to be founded on a connection with the place where the damage occurred, where that company was not subject to statutory reporting obligations in that Member State (paragraph 37).

The judgment can be consulted here (the English version is not yet available).

Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 13 May 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is International Judicial Co-operation in Times of Pandemic and will be presented by Professor Carlos Echegaray de Maussion (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87893740067?pwd=L0w4cThOVkFzQ04rZUZvT0lnNGpHZz09

Meeting ID: 878 9374 0067

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

In February 2021, the European Commission launched a study to assess the need for more effective legal protection of vulnerable adults within the European Union. As part of this study, a survey has now been published online for all legal practitioners working in the area: judges, lawyers, notaries, and other relevant authorities. Input from practitioners will be important in shaping any future legislative initiative.

The survey is open until 4 June 2021 and available at the following link: https://ec.europa.eu/eusurvey/runner/vulnerable_adults_practitioners.

Although the survey is in English, respondents are welcome to submit responses in any of the official EU languages.

For more information, see the survey link above or for more specific questions contact the project team at: < crossborder.adults@milieu.be >.

In collaboration with the University of Heidelberg, the Charles University of Prague and the University of Warsaw, the University of Milan is conducting the project ‘From Diversities to Unity through Coordination (EU-DUC)’ within the framework of the 1st Call for joint educational proposal promoted by the 4EU+ European University Alliance.

In this context, from 16 to 18 June 2021, the University of Milan will host the Overcoming Challenges, Addressing Conflicts, Settling Disputes Summer School on EU Business Law. The Summer School is open to students of 4EU+ universities, and it is envisioned to take place in a hybrid (online/in person) mode.

Students can register, from 15 April until 16 May 2021, on Eventbrite. With their registration, they must submit to Prof. Francesca C. Villata (euduc@unimi.it) their CV and a letter of motivation, indicating the order of preference between the 5 interactive modules offered with the Summer School.

More information on the 4EU+ European University Alliance and the Summer School’s Programme are available here.

Just as the Commission formally announced its refusal to give consent to the UK’s accession to the Lugano Convention, Andrew Dickinson has provided a comprehensive overview on the state of Private International Law for civil and commercial matters in the UK and EU, which has just been published in the latest issue of Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) (IPRax 2021, p. 218).

The article sketches out this ‘realignment of the planets’ from three angles, starting with the legal framework in the UK, which will now be based on the Withdrawal Act 2018, several other statutes and multiple pieces of secondary legislation. The latter include the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations, which entail a return to the rules previously applied only to non-EU defendants, and the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations, which (by contrast) essentially carries over the Rome I and II Regulation. With regard to jurisdiction, the situation is of course complicated by some residual remains of the Brussels regime, some new provisions aiming to preserve certain jurisdictional advantages for consumers and employees, and the interplay with the Hague Choice of Court Convention, all of which the article also covers in detail. Interestingly, especially in the context of last week’s news, Dickinson concludes the section on jurisdiction (on p. 218) as follows:

One might take comfort in the fact that there is nothing in the mechanisms and rules described above that is truly novel. In large part, the effect of the UK’s withdrawal from the EU will be to extend to the province formerly occupied by the Brussels-Lugano regime the conflict of law rules for situations lacking an EU connection, with which many cross-border practitioners will be familiar. Some will welcome, for example, the increased role for the doctrine of forum non conveniens or the removal of fetters on the UK courts’ ability to grant anti-suit injunctions. Others will see the transition to what is unquestionably a complex and piecemeal set of rules as a backward step, which nonetheless creates an opportunity to review, simplify and up- date the UK’s private international law infrastructure. The case for reform will grow if the UK’s application to rejoin the 2007 Lugano Convention does not bear fruit.

The text then goes on to describe the consequent changes in EU Private International Law and the effects of these changes on third states with whom the EU has concluded international agreements.

The article links up nicely with Paul Beaumont’s article on The Way Ahead for UK Private International Law After Brexit, which has just been published in this year’s first issue of the Journal of Private International Law and which considers the steps the UK should take to remain an effective member of international institutions such as the Hague Conference on Private International Law. Both articles can also be read in conjunction with Reid Mortensen’s contribution on Brexit and Private International Law in the Commonwealth and Trevor Hartley’s article on Arbitration and the Brussels I Regulation – Before and After Brexit, which appear in the same issue.

The first issue of the Journal of Private International Law for 2021 was released today and it features the following articles:

Paul Beaumont, Some reflections on the way ahead for UK private international law after Brexit

Since 1 January 2021 the UK has moved out of the implementation period for its withdrawal from the European Union (EU) and it is an appropriate time to reflect on the way forward for the UK in developing private international law. This article considers the practical steps that the UK should take in the near future. There is significant work that the UK can do to progress its commitment to the “progressive unification of the rules of private international law” by improving its commitment to the effective functioning of several key Conventions concluded by the Hague Conference on Private International Law (HCCH). Some of these steps can and should be taken immediately, notably accepting the accessions of other States to the Hague Evidence and Child Abduction Conventions and extending the scope of the UK’s ratification of the Adults Convention to England and Wales, and Northern Ireland. Other things require more consultation and time but there are great opportunities to provide leadership in the world by ratifying the Hague Judgments Convention 2019 and, when implementing that Convention which is based on minimum harmonisation, providing leadership in the Commonwealth by implementing, at least to some extent, the Commonwealth Model Law on Recognition and Enforcement of Civil and Commercial Judgments. Within the UK, as a demonstration of best constitutional practice, intergovernmental cooperation between the UK Government and the devolved administrations should take place to consider how intra-UK private international law could be reformed learning the lessons from the UK Supreme Court’s highly divided decision in Villiers. Such work should involve the best of the UK’s experts (from each of its systems of law) on private international law from academia, the judiciary and legal practice. Doing so, would avoid accusations that Brexit will see a UK run by generalists who give too little attention and weight to the views of experts. This use of experts should also extend to the UK’s involvement in the future work of HCCH at all levels. The HCCH will only be able to be an effective international organisation if its Members show a commitment to harnessing the talents of experts in the subject within the work of the HCCH.

 

Reid Mortensen, Brexit and private international law in the Commonwealth

“Brexit is a trading and commercial opportunity for the countries of the Commonwealth, as it makes it likely that, for many, their access to United Kingdom (UK) markets will improve significantly. The question addressed in this article is whether, to support more open and trading relationships, Brexit also presents opportunities for the development of the private international law of Commonwealth countries – including the UK. Focusing on Australia, Canada, New Zealand and Singapore, as well as the UK, an account is given of the relationship between the different systems of private international law in these Commonwealth countries in the period of the UK’s membership of the European Union (EU). Accordingly, consideration is given to the Europeanisation of UK private international law and its resistance in other parts of the Commonwealth. The continuing lead that English adjudication has given to private international law in the Commonwealth and, yet, the greater fragmentation of that law while the UK was in the EU are also discussed. The conclusion considers the need to improve the cross-border enforcement of judgments within the Commonwealth, and the example given in that respect by its federations and the trans-Tasman market. Possible directions that the cross-border enforcement of judgments could take in the Commonwealth are explored.”

 

Trevor Hartley, Arbitration and the Brussels I Regulation – Before and After Brexit

This article deals with the effect of the Brussels I Regulation on arbitration. This Regulation no longer applies in the UK, but the British Government has applied to join the Lugano Convention, which contains similar provisions. So the article also discusses the position under Lugano, paying particular attention to the differences between the two instruments. The main focus is on the problems that arise when the same dispute is subject to both arbitration and litigation. Possible mechanisms to resolve these problems – such as antisuit injunctions – are considered. The article also discusses other questions, such as freezing orders in support of arbitration.

 

Maksymilian Pazdan & Maciej Zachariasiewicz, The EU succession regulation: achievements, ambiguities, and challenges for the future

The quest for uniformity in the private international law relating to succession has a long history. It is only with the adoption of the EU Succession Regulation that a major success was achieved in this field. Although the Regulation should receive a largely positive appraisal, it also suffers from certain drawbacks that will require a careful approach by courts and other authorities as to the practical application of the Regulation. The authors address selected difficulties that arise under its provisions and make suggestions for future review and reform. The article starts with the central notion of habitual residence and discusses the possibility of having a dual habitual residence. It then moves to discuss choice of law and recommends to broaden further party autonomy in the area of succession law. Some more specific issues are also addressed, including legacies by vindication, the relationship between the law applicable to succession, the role of the legis rei sitae and the law applicable to the registries of property, estates without a claimant, the special rules imposing restrictions concerning or affecting succession in respect of certain assets, as well as the exclusion of trusts. Some proposals for clarifications are made in that regard.

 

Stellina Jolly & Aaditya Vikram Sharma, Domestic violence and inter-country child abduction: an Indian judicial and legislative exploration

The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent the abduction of children by their parents by ensuring the child’s prompt return to his/her place of habitual residence. At the time of drafting the Convention, the drafters believed that non-custodial parents who were fathers perpetrated most of the abductions. However, the current statistics reveal the overwhelming majority of all abductors as primary or joint-primary caretakers. Unfortunately, it is unknown what exact proportion of these situations includes abductions triggered by domestic violence. In the absence of an explicit provision of domestic violence against spouses as a defence against an order of return, for a parent who has abducted a child to escape domestic violence, the relevant defence is of “grave risk of harm” to and “intolerable situation” for the child under Article 13(1)(b) of the Convention. However, the lack of guidance on what constitutes “grave risk” and “intolerable situation”, at least in the past, and its operationalisation in the context of domestic violence brings in pervasive indeterminacy in child abduction. In 2012, the Hague Conference on Private International Law identified “domestic violence allegations and return proceedings” as a key issue and recommended steps for developing principles on the management of domestic violence allegations in return proceedings leading to the adoption of a Good Practice Guide on this issue in 2020.

The Ministry of Women and Child Development (WCD) and the Ministry of Law and Justice, India, cite that most Indian parents who abduct their children happen to be women escaping domestic violence abroad. Thus, they are victims escaping for themselves and their children’s safety. This research has summed up the judgments delivered by High Courts and the Supreme Court of India on child abduction between 1984 and 2019. Through judicial mapping, the paper discusses the cases in which battered women have highlighted and argued domestic violence as a reason against their children’s return. The paper evaluates whether the reason given by the two ministries against India’s accession to the Hague Convention is reflected in cases that have come up for judicial resolution and what are the criteria evolved by the judiciary in addressing the concerns of domestic violence against a spouse involved in child abduction. The paper analyses India’s legislative initiative, the Civil Aspects of International Child Abduction Bill, 2016 and assesses the measures proposed by the Bill for considering domestic violence against a spouse in abduction cases.

 

Kittiwat Chunchaemsai, Legal considerations and challenges involved in bringing the 2005 Hague Convention on Choice of Court Agreements into force within an internal legal system: A case study of Thailand

Thailand must consider two vital elements, namely its internal legal system and environment before signing the Hague Convention on Choice of Court Agreements 2005 (Hague Convention). This paper investigates whether the law of Thailand in its current form is inconsistent with the Hague Convention. Articles 1–15 are examined to identify areas of inconsistency and to suggest appropriate solutions. This study finds that the internal legal system of Thailand is not quite in line with the Hague Convention. This conclusion leads to analytical recommendations to suit the needs of the current Thai legal system. Implementing these recommendations is necessary for Thailand if it intends to become a Party to the Hague Convention. Thailand must not only have a specific implementation act but must also review and revise the relevant laws appropriately.

 

Saeed Haghani,  Evolution of lex societatis under Iranian law: current status and future prospects

There has been a growing attention to applicable law to companies (lex societatis) in Iranian legal research. A brief study of relevant legal literature leads us to a list of both disagreements and complexities on the subject. Meanwhile, a recent parliamentary effort on the issue, illustrates the importance of lex societatis in the eyes of the Iranian legislature. A comparative approach would be of great help in the analysis of the formation and evolution of relevant Iranian legal rules. This paper tries to provide the reader with a comprehensive view of the current transitory state of Iranian law regarding lex societatis.

 

 

Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English.

Editorial …………………………………………………………………………………… (7 f.)

Rechtsprechung & Urteilsberichte (Case Law) ………………………………………………. (9–36)

Bruno Menhofer, Verpflichtung zur Mitwirkung an religiöser Scheidung und Grenze der rechtlichen Bindung –
Anmerkung zum Beschluss des OLG Hamburg vom 25. 10. 2019 – 12 UF 220/17
[Duty to Participate in a Religious Divorce and its Legally Binding Limits – Commentary
on the Ruling of Hamburg?s Higher Regional Court (Oberlandesgericht [OLG] Hamburg)
of 25. 10. 2019 – 12 UF 220/17] ……………………………………………….. (9–14)

Bruno Menhofer, Function follows form – Zur Entscheidung des BGH über die Formbedürftigkeit der Vereinbarung
einer Brautgabe nach deutschem Recht
[Function Follows Form – Comment on the Federal Court of Justice (Bundesgerichtshof [BGH]
Judgment Regarding Formal Requirements of a Dowry Agreement under German Law]    (15–23)

Rike Sinder, Entscheidungsanmerkung zu BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 29. 04. 2020 –
1 BvQ?44/20 – Freitagsgebet im Ramadan in Zeiten von Corona-Verordnungen
[Commentary on the Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) Order
of the 2nd Chamber of the First Senate of 29 April 2020 – 1 BvQ 44/20 – Friday Prayer
during Ramadan and the COVID-19 Ban on Church Services]    (25–30)

Andrés Ring & Jivesh Chandrayan, Enforcement of UAE Judgments in India.    (31–36)

Articles.    (37–116)

Abdessamad Belhaj, The Jurist’s Resilience: The European Council for Fatwa and Research and the Corona Fatawa.    (37–52)

Ahmed Gad Makhlouf, Ma??hib in der Moderne: Kontinuität und Wandel des traditionellen madhab-Wesens
innerhalb der gegenwärtigen kollektiven Fiqh-Gremien
[Madahib in Modern Times: Continuity and Change of Traditional madhab Scholarship
within Contemporary Collective Fiqh-Comittees]    (53–73)

Ranya Jamil, ‚Fatwa-Import‘ und seine Auswirkungen auf muslimische Minderheiten in Europa
[Fatwa-import and its Impact on Muslim Minorities in Europe]   (75–84)

Mina Moazzeni, S. Kamal Keshiknevis Razavi & Abbas Ahmadvand, Der historiografische Wert von Texten zur Islamischen Rechtswissenschaft (fiqh) – Eine Fallstudie:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti

[The Historiographical Value of Texts on Islamic Jurisprudence (fiqh) – A Case Study:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti]    (85–102)

Rana Alsoufi, Ibn Hazm’s Refutations of Causality in Islamic Law (Ibtal at-Talil fi Ahkam ad-Din) (103–116)

Forschungsbericht / Research Report. (117–128)

Susan Rutten, Traditional and Religious Marriages. Research, Practices and Policies in the Netherlands. (117–128)

Rezensionen / Reviews. (129–159)

Sebastian Maisel, Review: Ahmed Abd-Elsalam: Das beduinische Rechtssystem: Konzepte – Modelle –
Transformationen (Beiruter Texte und Studien 136), Würzburg 2015. (129–131)

Björn Bentlage, Review: Shaheen Sardar Ali: Modern Challenges to Islamic Law. Cambridge 2016. (133–135)

Silvia Tellenbach, Rezension zu Olaf Köndgen: The Codification of Islamic Criminal Law in the Sudan –
Penal Codes and Supreme Court Case Law under Numayri and al-Bashir
(Studies in Islamic Law and Society 43), Leiden/Boston 2018. (137–141)

Abir Haddad, Rezension zu Abdurrahim Kozali / Ibrahim Salama / Souheil Thabti (Hgg.): Das islamische
Wirtschaftsrecht (Reihe für Osnabrücker Islamstudien 19), Frankfurt am Main 2016. (143–152)

Achim-Rüdiger Börner, Rezension zu Peter-Christian Müller-Graff (Hg.): EU-Nachbarschaftspolitik – Nordafrika und Nahost
(Schriftenreihe des Arbeitskreises Europäische Integration e. V. 102), Baden-Baden 2017. (153–159)

Tagungsberichte / Conference Reports. (161–205)

Hadi Enayat & Mirjam Künkler, Conference Report: The Politics of Law and the Judiciary in Contemporary Iran –
Aga Khan University (London), December 4, 2018. (161–164)

Mouez Khalfaoui, Tagungsbericht: Islamic Family Law in Europe and the Islamic World.
Symposium am Schloss Herrenhausen (Hannover), 25.–27. September 2019. (165–169)

Mikele Schultz-Knudsen, Conference Report: Islam and Europeanization – Legal Perspectives, Centre for European
and Comparative Legal Studies, Faculty of Law, University of Copenhagen, October 4, 2019. (171–182)

Gianluca Parolin, Conference Report: Words Laying Down the Law: Translating Arabic Legal Discourse,
Aga Khan University, London, UK, October 7 & 8, 2019. (183–194)

Lara-Lauren Goudarzi-Gereke, Conference Report: Law Between Dialogue and Translation: Harmonizing National Law
with International Law – The Case of Women’s Rights in Palestine, University of Göttingen,
Germany, November 5 & 6, 2019. (195–199)

Isabel Schatzschneider & Rosa Shuaibat, Workshop-Bericht: God’s Justice and Animal Welfare, Department Islamisch-Religiöse Studien
an der Friedrich-Alexander-Universität Erlangen-Nürnberg, 13. & 14. Dezember 2019. (201 f.)

Viktor Forian-Szabo, Martin Baumgartner & Leonard Soldo, Conference Report: Modern Law and Institutional Decay – The Ecology of Institutional Transplants
in the Muslim World, University of Vienna, Faculty of Law, February 10 & 11, 2020. (203–205)

Call for Papers (Aufruf zum Einreichen von Beiträgen) (207–210)