Conflictoflaws

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) will host the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover), Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration. For further information about the program and the process of registration, please click here.

The Käte Hamburger Center for Advanced Study “Law as Culture” invites academics of excellent standing to apply for a fellowship or junior fellowship for a maximum of 12 months (for the research period from April 1, 2020, to March 31, 2022) on the subject:

Law and Community

Subsequent to developing the “Law as Culture” paradigm in the first funding phase (2010-2016), the Center will now direct its attention to the interaction between law and other cultural spheres in the second funding phase (2016-2022). During the stated research period, the Center is dedicated to examining the relationship between Law and Community. Within this research area, the diversity of cultures of family law and societal forms globally will be examined. Research projects shall also be oriented towards one of the Center’s three traversal dimensions, namely “Cultures of Differentiation and Comparing Legal Cultures,” “Human Rights and Autonomy,” or “The Binding Force and the Emotive Foundations of the Law.”

The tensions described and analyzed as contradictions of normative orders in theories of legal pluralism can only be understood with view to the social communities hiding behind these with their respective religious, indigenous, local, and regional claims. In this context, the question of how these social communities are held together requires closer examination, as does their relationship to secondary, superordinate, and subordinate legal ties. Concretely speaking, ideas of superior or even universalist legal communities, such as the European Legal Community or a Human Rights Community, should be explored while bearing in mind the normative and emotionally affective boundaries of community building.

Shaped by social proximity and emotional entanglement, the family continues to be regarded as a central place where societal values are reproduced, goods are distributed, and mutual responsibility is assumed. The longstanding principle of family solidarity is reflected in numerous legal orders. At the same time, however, family law also mirrors changing family forms and family ideals. A wideranging transformation of society and its normative foundations manifests in the pluralization of family forms. It is precisely on the basis of that which constitutes the normative character of the family that constructions of “us” and “them” become clear. In cases involving foreign elements, for example, the law of the “other” is applied using private international family law; exceptions based on public policy nevertheless call for a “we.”

In addition to the comparison of family law cultures, the research area Law and Community seeks the comparison of (legal) cultures at the level of other forms of community and their connection to applicable law: Which social norm systems form traditional local neighborhoods, modern clan structures, or “post-traditional communities” in contemporary subcultures, and what is their relationship to state law? How are these particular claims to universal validity conveyed? To what extent is valid law accepted by them or pragmatically integrated, and do they attempt to enforce the ideas of norms beyond their own group boundaries?

The Käte Hamburger Center for Advanced Study “Law as Culture” offers a creative research atmosphere for various disciplines in the cultural and legal sciences. Academics of excellent standing are invited to apply by July 15, 2019. Applications should include a résumé, project description (5-10 pages), and selected publications, as well as list the applicant’s availability during the research period. They should be submitted preferably by email (kaesling@uni-bonn.de) or, alternatively, by mail:

Directorate of the Käte Hamburger Center for Advanced Study “Law as Culture”
c/o Dr. Katharina Kaesling
Research Coordinator
Konrad-Zuse-Platz 1-3
53227 Bonn
Germany

Further information can be found here.

At the Institute for Comparative and Private International Law of the Albert-Ludwig-University Freiburg (Germany), a vacancy has to be filled at the chair for private law, private international law and comparative law (chairholder: Prof. Dr. Jan von Hein), from 1 October, 2019 with

a legal research assistant (salary scale E 13 TV-L, personnel quota 50%)

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach his or her own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

Applicants are expected to be interested in the chair’s main areas of research. They should be fluent in German and possess an above-average German First State Examination (at least “vollbefriedigend”) or a foreign equivalent degree. In addition, a thorough knowledge of German civil law as well as conflict of laws, comparative law and/or international procedural law is a necessity. Severely handicapped persons will be preferred provided that their qualification is equal.

Please send your application (CV, certificates and, if available, further proofs of talent) as a single pdf file via e-mail to ipr3@jura.uni-freiburg.de no later than 15 July, 2019. Alternatively, the documents may be sent to Prof. Dr. Jan von Hein, Institut für ausländisches und internationales Privatrecht, Abt. III, Peterhof, Niemensstr. 10, D-79098 Freiburg (Germany). As the application documents will not be returned, applicants are kindly requested to submit only unauthenticated copies.

The European Conference on Mediation in Cross-Border Succession Conflicts invites mediators, legal practitioners, researchers, policymakers and citizens who are interested in succession mediation and cross-border mediation. The EU-funded project FOMENTO (Fostering mediation in cross-border civil and succession matters) aims to contribute to foster a widespread use of mediation as a cost-effective solution to prevent and solve international disputes in civil and succession matters. The conference will take place in Leipzig (Germany) on 26 June 2019. It is a possibility for mediators and jurists to get in contact and exchange experience in the field of succession conflicts. It also provides a venue for giving and receiving constructive feedback on research in progress, networking and discussions for the advancement of mediation across Europe. The main topics of the conference include

• mediation in cross-border succession cases,
• cross-border mediation
• co-mediation in a cross-border context
• online mediation

For the full programme and registration, please click here.

The successful conclusion of the 7th edition PAX Moot Competition marked the 50th anniversary of EU Private International Law and was named after one of its “founding fathers”, Paul Jenard, who served as the Rapporteur of the 1968 Brussels Convention.

The PAX Competition is a specialized moot court competition focused on private international law issues. The PAX Competition was set up originally by Sciences Po (Paris) in 2012. Since 2018, the organising team includes private international law experts from different Universities and research institutions. This year, the University of Antwerp and the T.M.C. Asser Institute collaborated with Sciences Po in organising this moot court competition.

We are grateful for the support and the funding received from the European Commission, through the  JUDGTRUST project coordinated by the T.M.C. Asser Institute, and in particular thank our colleagues of the T.M.C Asser Institute for the excellent facilities provided for the moot.

On May 24 and 25, 2019, eleven teams from six States, including the Russian Federation and India, met in The Hague for the oral rounds of this competition. We would like to thank all participating teams for their commitment and excellent work on the moot! We congratulate the University of Antwerp as the winner of the 2019 Jenard Round of the Pax Competition and the University of Sorbonne for writing the winning memorials!

Registration for the 2020 is set to be open from November 2019 . We invite teams from all corners of the European Union and beyond to participate in the next edition of this Private International Law endeavour!

On Wednesday 12 June 2019, at 13.30, the Department of International, Legal, Historical and Political Studies of the University of Milan will host the conference “New Rules on Property Regimes for International Couples”.

Speakers include Ilaria Viarengo (University of Milan), Maria Vilar Badia (European Commission), Andrea Bonomi (Swiss Institute of Comparative Law), Cristina González Beilfuss (University of Barcelona), Janeen Carruthers (University of Glasgow), Paolo Pasqualis (Notary), Monica Velletti (Judge), Cinzia Calabrese (President of AIAF) and Pietro Franzina (University of Ferrara).

See here for registration, programme and further information.

Written by Sophie Hunter

Since 2017, the Supreme People’s Court of China (SPC) has established three internet courts in Hangzhou, Beijing and Guangzhou which are major hubs for e-commerce, the internet industry and the headquarters of giant internet companies like Alibaba and Baidu. With an internet penetration of 54% and approximately 800 million internet users, the introduction of such courts helps to reduce the rising number of online disputes between citizens in a time and cost efficient way thanks to the admissibility of blockchain backed online data as evidence. China’s leading role in internet litigation comes at no surprise since regular courts favor documentary evidence over live testimony and already so much is done online.

This post sheds light on this new model and how it has potential to influence other jurisdictions.

China’s political strategy towards innovation and internet

Like many other countries, China views the Internet as key to its future growth and development opportunities. The Chinese government maintains the world’s most sophisticated internet censorship apparatus called the Great Firewall. After the 2017 cybersecurity law, the level of internet freedom in the country declined as a result of strengthened repressive restrictions on online activities and onerous financial burdens on technology companies, independent media, and bloggers. President Xi Jinping announced plans at the 19th Communist Party Congress in October 2017 to transform China into a “cyber superpower”. China’s Internet Plus strategy, which is part of this initiative, encompasses innovations such as internet courts, in order to actively promote the healthy development of e-commerce, industrial networks, and Internet banking, as well as facilitate the growth of new industries and the expansion of its companies’ international Internet footprint. Although China has recently clamped down on cryptocurrencies, it hailed blockchain development in its five-year plan to 2021.

The new model of specialized courts for internet-related disputes or Internet Courts

According to the Provisions published by the SPC (Provisions on Several Issues Concerning the Trial of Cases by the International Courts) the Internet Courts focus on disputes involving: the online sale of goods and services, lending, copyright and neighboring rights ownership and infringement, domains, infringement on personal rights or property rights via the Internet, product liability claims, and Internet public interest litigation brought by prosecutors. The litigation process is conducted solely online, including the service of legal documents, the presentation of evidence, and the actual trial itself which, to comply with principles of trial in person and direct speech principle, rely on the online video system.

A major advantage of such courts is that it addresses the increasing workload and burden on the judiciary. The average duration of these online trials in Hangzhou in 2017/18 was 28 minutes, and the average processing period from filing to trial and conclusion was 38 days. However, the Hangzhou Internet Court has also been criticized for its lack of impartiality, since it is technically supported by Alibaba and its subsidiaries which are related to most disputes in the region. Other courts have not faced such criticism.

Blockchain mechanisms as a new method to authenticate evidence

Blockchain-related innovations are increasingly becoming relevant to legally authenticate evidence. Since a blockchain generates immutable, time-stamped data which can then be used as an auditable trail, it seems likely that the legal sphere will get heavily influenced in the near future by the security of the blockchain (which is set before any transactions or documentation takes place). China is ahead of the game in this respect. At the 2019 Forum on China Intellectual Property Protection, the president of the Beijing Internet Court (established in September 2018, and has since processed 14,904 cases) reportedly said that the court employs technologies such as artificial intelligence (AI) and blockchain to render judgement.

Since most of the evidence in the cases heard by Internet Courts is electronic data and is stored on the Internet, the SPC outlined in its Provisions that the Internet court can rely on evidence provided by the parties that can be authenticated by electronic signatures, time stamps, hash value verification, blockchain and other tamper-proof verification methods. Before the implementation of the Provisions, the Internet Court in Hangzhou for the first time in China admitted evidence that was authenticated by blockchain technology in an online copyright infringement case, which confirmed that data uploaded to a blockchain platform reflected its source, generation and path of delivery, and were therefore reliable evidence. Since, China’s Supreme Court ruled that evidence authenticated with blockchain technology is binding in legal disputes.

Internet courts rely on blockchain to deal with a range of cases such as disputes over liability for Internet tort and other types of Internet-related disputes in the areas of intellectual property rights and administrative litigation. An Internet judge in China’s Hangzhou province relied on blockchain to defend Intellectual Property rights because such technology is paramount to safeguard authors’ ownership over their work. In August 2018, the same court handed down a judgment on China’s first case of unfair competitionin big data products. As Wang Jiangqiao, a judge at the Internet Court, sums up “since blockchain guarantees that data can not be tampered, all digital footprints stored in the judicial blockchain system have legal effect.”

Can this model be exported to Western jurisdictions?

With the increasing reliance on internet for both private and business matters, the number of disputes is likely to increase in the near future. Internet Courts like the ones in China could provide a model to improve efficiency, significantly reduce costs and address infringements that may have been too cost-effective to pursue otherwise, while removing at the same time human interference as much as possible, which will make the information stored on blockchain more credible as noted by Qin Pengfei, a paralegal with Shanghai Dabang Law firm. Already the US State of Vermont has passed legislation to allow courts to use data on blockchain as evidence. In 2018, the U.K. Law Commission has announced its plans to review legal frameworks involving smart contracts so that it doesn’t lag behind as blockchain legal applications develop. However, no other country has yet actively followed suit with China’s model of Internet Courts. One reason copyright lawyer Liu Hongze argues is the fact that the acceptance of evidence stored on the blockchain may have little impact now on non-internet-related civil or criminal lawsuits. Indeed, blockchain data being legal evidence is relatively new and courts’ acceptance of it will depend on individual courts and situations. Nevertheless, what is certain is that China’s Internet Courts have a strong potential to launch the reliance of blockchain in the legal sphere, and western countries should watch such developments carefully not to fall behind. The recent backlash on Facebook with the judgment of the Bundeskartellamt demonstrates the need to respond to an ever increasing backlog of internet related disputes which interwind privacy, competition, data, cybersecurity and technology. Specialized courts such as Internet Courts might well be the answer.

Riga Graduate School of Law (RGSL) calls for applications for the following academic vacancy:

Docent in Private Law with additional specialization in Private International Law or International Commercial Law or Comparative Contract Law, for election term of 6 years.

Requirements for applicants:

• Compliance with the requirements of the Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law;
• At least 3 years of academic work experience in English language;
• Documented experience in research and scientific publications during the last 6 years;
• Participation in scientific conferences and international projects during the last 6 years.

Main tasks:

• Provision of study work in Bachelor and Master level programmes;
• Involvement in research and at least five publications in recognized peer-reviewed academic outlets during the election term;
• Participation in RGSL governance bodies;
• Engagement in RGSL community service.

Monthly salary up to EUR 2.200,00 for full-time work-load.

Applicants should submit the following documents:

• Application letter;
• Professional curriculum vitae (in Europass format) in Latvian and English;
• Copies of documents certifying the relevant education;
• List of publications and/or significant achievements in the relevant field, from the last 6 years.

The Regulations on Academic and Administrative Personnel Positions of Riga Graduate School of Law can be found here.

Deadline for application is 17  June 2019. Applications should be sent by postal mail to Riga Graduate School of Law, Str?lnieku 4k-2, R?ga, LV 1010, Latvia or by email to vacancies@rgsl.edu.lv (Subject heading: “Academic personnel vacancies”).

For additional inquiries please contact Ms. Ieva Racenaja, Director of Riga Graduate School of Law, at ieva.racenaja@rgsl.edu.lv.

Riga Graduate School of Law informs that personal data included in the application shall be processed in order to conduct the selection of candidates (on the grounds of legitimate interests). The controller of such personal data processing is Riga Graduate School of Law.

The Paris Court of Appeal will host a symposium on “L’attractivité de la place de Paris: Les chambres commerciales internationales: fonctionnement et trajectoire” (The attractiveness of Paris’s jurisdiction. The international Commercial Chambers: functioning and future trends) on June 14, 2019 (2pm-6pm).  

Readers of this blog will remember that on February 7, 2018, the International Commercial Chamberof the Paris Court of Appeal was inaugurated.

The establishment of this specialized appellate international Commercial Chamberfollows the creation of the first International Chamber of the Paris Commercial Court of First Instance (“Chambre de Droit International du Tribunal de Commerce”) and fits well in the current developments of the international business courts all over Europe (and out of Europe too).

The international chambers of the Paris Commercial Court and Court of Appeal (hereafter referred to as the “International Commercial Courts of Paris” or the “ICCP”) are the latest examples of the modernization of French Legal System with respect to dispute resolution in commercial matters.

In the context of Brexit, the creation of the ICCP aims at enhancing the attractiveness and international competitiveness of French courts, combining flexibility, high quality and low costs.

The Paris Court of Appeal and the Faculty of Law of the Université de Paris Est Créteil (UPEC) will organize a symposium on June 14, 2019 at the Paris Court of Appeal.  The conference will discuss the attractiveness of the Paris courts taking into account its latest evolution: the creation of the International Commercial Courts of Paris, with a focus on how these courts work in practice.

After the opening by Chantal Arens, first president of the Paris Court of Appeal and Gilles Cuniberti, professor of law at the University of Luxembourg, the event will be divided into three parts:

1. Origins and creation of the ICCP, with a comparative approach to other commercial courts in Europe.
2. Analysis of the mechanisms allowing access to the ICCP, with practical insight into the drafting and interpretation of choice of court clauses, the types of disputes that may fall within the scope of the Chambers and the relationships with arbitration.
3. Analysis of the procedural rules before the Chambers, with a specific focus on how the Chambers work in practice, the use of the English language, the available tools for the parties, and the current rules of practice established or being discussed in the Chambers.

The conference, led by the judges sitting in the Paris international chambers, will provide a valuable feedback of 18 months of existence of the International Commercial Chamber of the Paris Court of Appeal. The future trends of the French ICCP, and their interaction with other courts in Europe will also be debated.

Emmanuel Gaillard, Visiting Professor at Yale Law School and Harvard Law School, will give the closing speech.

A detailed description of the afternoon’s program can be found on the Paris Court of Appeal’s website (in French only/English version to be published soon).

You can register by writing an email to: colloque.ca-paris@justice.fr

Links to previous relevant posts:

http://conflictoflaws.net/2011/paris-commercial-court-creates-international-division/

http://conflictoflaws.net/2018/doors-open-for-first-hearing-of-international-chamber-at-paris-court-of-appeal/

http://conflictoflaws.net/2018/the-domino-effect-of-international-commercial-courts-in-europe-whos-next/

On the occasion of the XVIII National Meeting of Private International Law Professors, the Private International and Comparative Law Master’s Degree Program of the Central University of Venezuela will launch its new website and the first issue of its yearbook in Caracas. The event, organized jointly with the “Tatiana de Maekelt” Institute of Law, will gather professors of Private International Law from different Venezuelan law schools to discuss current topics of interest, including new methods of teaching and evaluation in this subject.

The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International and Comparative Law. Its launching represents the desire to have a specialized publication on these matters within the Venezuelan forum.

The first issue of the Yearbook contains the first thesis submitted for a Master’s Degree on the institution of renvoi, four papers spanning International Procedural Law, electronic means of payment, cross-border know-how contracts and International Family Law, sixteen of the papers presented during the Commemoration of the Twentieth Anniversary of the Venezuelan Private International Law Act’s entry into force, held on February 6, 2019 and a collaboration by Professor Esplugues Mota, Professor of Private International Law at the University of Valencia (Spain), where he recalls his time as a visiting professor in 2000, 2003 and 2008.

The Yearbook’s full table of contents is as follows:

Eugenio Hernández-Bretón
Presentación (Presentation)

I. Trabajos de Tesis (Thesis)

Caroline Bergeron

El reenvío en el Derecho Internacional Privado contemporáneo (The renvoi in Contemporary Private International Law)

II. Trabajos monográficos (Papers)

José Antonio Briceño Laborí

El principio de favor recognitionis como criterio de interpretación de los requisitos de eficacia de las sentencias extranjeras. Perspectivas desde el Derecho internacional privado venezolano (The Principle of favor recognitionis as an interpretation criterion of the effectiveness requirements of foreign judgements. Perspectives from Venezuelan Private International Law)

Andrea Cruz Suárez y Pedro Ramírez Braiz

El Dash como medio electrónico de pago. Aspectos contractuales internos e internacionales (Dash as an electronic means of payment. Internal and international contractual aspects)

Luis Carlos Mota Arocha

Derecho aplicable a contratos internacionales de know how de acuerdo a la Ley de Derecho internacional privado (Law applicable to international know-how contracts according to the Private International Law Act)

Eugenio Hernández-Bretón

La fractura de la familia venezolana ante el Derecho internacional privado (The fracture of the Venezuelan family before Private International Law)

III. Events. Commemoration of the twentieth anniversary of the Private International Law Act’s entry into force

Eugenio Hernández-Bretón

La Ley de Derecho Internacional Privado y la universidad venezolana. Palabras de apertura (The Private International Law Act and the Venezuelan university. Opening words).

Claudia Madrid Martínez

Reflexiones en torno al sistema de fuentes del Derecho internacional privado venezolano (Reflections on the system of sources of the Venezuelan Private International Law Act).

Victor Gregorio Garrido Ramos

Cuestiones terminológicas en el artículo 1 de la Ley de Derecho Internacional Privado venezolana (Terminological issues in Article 1 of the Venezuelan Private International Law Act).

Anna María Tambasco B.

Situaciones jurídicas válidamente creadas (Vested Rights)

Rubén Valdivieso

Orden Público (Ordre Public)

Mirian Rodríguez Reyes de Mezoa

Los derechos reales en la Ley de Derecho Internacional Privado venezolana. 20 años después (In rem rights under the Venezuelan Private International Law Act. 20 years later)

Guillermo Palao Moreno

Criterios de conexión para la determinación de la ley aplicable en materia de familia y sucesiones en los sistemas de Derecho internacional privado venezolano y europeo (Connection criteria for the determination of the applicable law to family and successions matters under the Venezuelan and European Private International Law systems)

Froila Eugenia Pimentel C.

La indemnización de los daños punitivos en Venezuela en aplicación del artículo 9 de la Ley de Derecho Internacional Privado (The compensation of punitive damages in application of the Article 9 of the Private International Law Act)

Rosalvi Villegas

El principio de proximidad en la Ley de Derecho de Internacional Privado venezolana (The principle of proximity in the Venezuelan Private International Law Act)

Gerardo Feliche Lione Pedra

La cláusula de sumisión a la jurisdicción en los contratos de adhesión y las soluciones prácticas aportadas por la Ley de Derecho Internacional Privado (The choice of forum clause in adhesion contracts and the practical solutions provided by the Private International Law Act).

Andrea Carolina Olivares Hernández

La sumisión contemplada en el artículo 46 de la Ley de Derecho Internacional Privado (Submission to Venezuelan courts under Article 46 of the Private International Law Act).

Andrés Carrasquero Stolk

Derogatoria de la jurisdicción de los tribunales venezolanos en contratos de trabajo internacionales (Derogation of the Venezuelan jurisdiction in international labour contracts).

Luis David Briceño Pérez

Las acciones por intereses o derechos colectivos o difusos no son class actions (Actions for collective or diffuse interests or rights are not class actions)

María Alejandra Ruíz

Ejecución de las medidas cautelares de conformidad con la Ley de Derecho Internacional Privado venezolana (Enforcement of precautionary measures under the Venezuelan Private International Law Act)

José Antonio Briceño Laborí

Efectos de las sentencias extranjeras y procedimiento de exequátur (Effects of foreign judgments and exequatur procedure).

Eugenio Hernández-Bretón

La “historia secreta” de la Ley de Derecho internacional privado. Palabras de clausura (The “secret history” of the Private International Law Act. Closing remarks).

IV. Visiting Professors

Carlos Esplugues Mota

La Maestría de Derecho internacional privado de la Universidad Central de Venezuela: tres participaciones y un agradecimiento infinito (The Private International Law Master’s at the Central University of Venezuela: three visits and infinite gratitude)

The event will take place on June 10th.

Upon release the Yearbook will be available at: http://www.mdipc-ucv.com

Hans van Loon, former Secretary General of the Hague Conference on Private International Law (HCCH), has just published an article entitled “Towards a global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters” in the Collection of Papers of the Faculty of Law, Niš, No 82, Year LVIII, 2019 (see pp. 15-36). The paper develops a lecture held at the Law Faculty.

The author has provided the following summary of his article (emphasis has been added):

The article traces the history of the “Judgments Project”, and provides background on the current negotiations at the Hague Conference on Private International Law, which have resulted in the May 2018 draft Convention, and, it is hoped, will very soon culminate in the adoption of a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. To that end, a Diplomatic Session has been convoked at the Peace Palace in The Hague (the Netherlands) from 18 June to 2 July 2019.

The article starts by recalling the interaction between, on the one hand, the 1971 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and its Supplementary Protocol, and, on the other, the 1968 Brussels Jurisdiction and Enforcement Convention (now: Brussels I recast). The 1968 Brussels Convention drew inspiration both from the 1971 Hague Convention and its Protocol (excluding exorbitant grounds of jurisdiction) and the 1965 Hague Choice of Court Convention. Yet, it went beyond those instruments by (1) providing uniform rules on original jurisdiction; (2) enabling recognition and enforcement generally without review of the original grounds of jurisdiction; and (3) benefitting from a mechanism of uniform interpretation by the Court of Justice of the European Union (CJEU). The success of the Brussels Convention, however, contributed to a lack of interest in the 1971 Convention, which never came off the ground. Other reasons were the 1971 Convention’s alleged discriminatory effect vis-à-vis companies and persons not domiciled in Europe and the issue of bilateralisation – the 1971 Convention required for its operation a supplementary agreement between any two Contracting States, an issue that has come up again in the current negotiations.

In 1992, having considered the possibility of bilateral negotiations with EEC Member States, the USA made a proposal to the Hague Conference for a “mixed” Convention. The idea was that this instrument would provide a list of permitted grounds of jurisdiction and a list of prohibited grounds of jurisdiction, while leaving a “grey area” that would allow Contracting States to establish additional grounds of original jurisdiction and provisions on recognition and enforcement under national law. With the “mixed” Convention idea as a start, negotiations took place between 1996-2001.They ultimately led, via a preliminary draft Convention, to an “Interim text” adopted at a diplomatic conference in 2001. The dynamics of those negotiations were very much determined by the transatlantic dimension, with different, and as it turned out, incompatible strategic objectives (the US being interested in securing recognition and enforcement of its judgments in Europe, and non-discrimination regarding direct grounds of jurisdiction for US-based companies and persons, and Europe, in urging the US to reduce the reach of jurisdiction of its courts regarding Europe-based companies and persons). The resulting text left many issues unresolved, including: (1) (commercial) activity as a ground of jurisdiction (2) the use of the internet, including e-commerce, (3) the protection of weaker parties, in particular consumers and employees, (4) intellectual property (IP), (5) the issue of bilateralisation and (6) the relationship with the Brussels/Lugano texts. It was therefore decided to take a step back, and focus first, separately as with the 1965 Convention, on choice of court agreements.

The article then discusses how the 2005 Choice of Court Convention was able to avoid some of these six major issues, and how it dealt with the remaining ones. Importantly, the Choice of Court Convention found a solution for its relationship to the Brussels/Lugano texts (it also had a substantial impact on the Brussels I recast). In fact, the 2005 Convention provides an important source of inspiration for the 2018 draft, which can be seen, for example, in the definition of its substantive scope, and its provisions on recognition and enforcement, including of judgments awarding punitive damages. However, the coming negotiations are still faced with several of the aforementioned major issues, and some new ones.

Meanwhile, however, the dynamics of the negotiations have changed. Whereas in the past the transatlantic dimension was predominant, the current negotiations have taken on a much more global character, China and other (formerly) “emerging” States having become more actively involved. In some respects, this adds to the difficulty of reaching agreement (for instance regarding IP). On the other hand, the current negotiations are limited to recognition and enforcement only. Yet, indirectly, the difference in approach to judicial jurisdiction between the US – where this is a constitutional matter, with a focus on the relationship between the defendant and the forum (the article discusses recent developments in the case law of the US Supreme Court on international jurisdiction) – and most other States – where the focus is on the relationship between the subject matter of the litigation and the forum – has reappeared in the current negotiations.

The article discusses how this is reflected in the draft, in particular in art. 5, in its provisions on contracts, torts, the internet, intellectual property and consumers and employees.

It is noted, with some regret, that as a result, the torts jurisdiction provision is very limited, indeed even narrower than its predecessor in the 2001 Interim text. It is hoped that the final text will make room for recognition and enforcement of judgments emanating from the court of the place where the injury arose, at least if the defendant could reasonably foresee that its conduct would give rise to the harm in that State. This would be important, for example, concerning civil judgments resulting from cross-border environmental litigation. Regarding IP, the May 2018 draft does not take a firm position, and it even leaves open the possibility of a complete exclusion. That would be a step back in comparison with the Choice of Court Convention, so hopefully it will be possible to avoid such a far-reaching result.  

Finally, a number of other, including novel, features of the draft are highlighted. Some concern is expressed about the addition of “situations involving infringements of security or sovereignty of [the requested] State” as a ground of refusal of recognition and enforcement (art. 7 (1) (c)), because that may invite a review of the merits of the judgment, which is in principle, rightly, prohibited (art. 4(2)). Interesting novelties include a provision which gives the requested court a certain flexibility in dealing with judgments that are subject to review in the State of origin (art. 4 (4)); the exclusion of forum non conveniens at the stage of recognition and enforcement (art. 14 (2)), and a tentative provision dealing with “common courts”, such as the future Unified Patent Court art. 4 (5).

The article concludes by expressing the hope that the Convention will avoid the complexity of its 1971 predecessor, notably by avoiding its bilateralisation system, or at least by drafting it in such a manner that it does not make the ratification unattractive or its application unduly difficult. In any event, the Convention will fulfill a long-felt need for a global multilateral framework for the recognition and enforcement of civil and commercial judgments, and thereby contribute to the global transnational legal order.   

The American Association of Private International Law (ASADIP) is holding its XIII Annual Conference on 21 and 22 November 2019 in Punta del Este, Uruguay. The Conference is entitled Eficacia Transnacional del Derecho (Transnational Effectiveness of the Law). More information will be made available here.

Maximilian Schulze, an assistant of Dr. Susanne Gössl, LL.M. (Tulane), University of Bonn, has kindly provided us with the following report.

On 5 April 2019, the first meeting of the newly established research network “Young Private International Law in Europe” took place at the University of Würzburg, Germany. The network intends to create a Europe-wide exchange at ‘junior faculty’ level (predoc/postdoc) in the context of various comparative Private International Law (PIL) projects. The first research project and meeting in Würzburg deal with the “Recognition/Acceptance of Legal Situations”. This topic was selected in view of the recent series of decisions by the CJEU regarding international name law (see, e.g. CJEU C-148/02 – Garcia Avello) and, most recently, same-sex marriage (CJEU C-673/16 – Coman)) and a parallel discussion which evolved in the context of the case law of the ECtHR, in particular regarding the recognition of adoptions, same-sex marriages and surrogacy. In order to contribute to a pan-European understanding of ‘acceptance’ of legal situations related to a person’s status in a cross-border context to enhance the free movement of EU citizens and protect their fundamental rights regarding private and family life, the aforementioned first project of the research network compares the reception and implementation of the CJEU and ECtHR case law in 16 EU Member States (Austria, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, France, Germany, Hungary, Italy, Latvia, Lithuania, Poland, Romania, Spain, and Sweden).

The meeting, organised by Susanne Lilian Gössl, Bonn, and Martina Melcher, Graz, comprised a public and a workshop session. The meeting was kindly supported by the German Research Foundation (Deutsche Forschungsgemeinschaft – DFG) as well as by the prior meeting of the German “Conference for Young PIL scholars” at the University of Würzburg.

The public session

Martina Melcher and Susanne Lilian Gössl opened the public session with an overview of the project and outlined the results of the comparative study. Martina Melcher highlighted the aim of the project as an “academic offspring” for young scholars to facilitate their comparative law and PIL research interests by setting up a network for young scholars. Methodologically, the network selects a specific topic – in this project/meeting the “Recognition/Acceptance of Legal Situations” – on which participants first submitted national reports, which then led to a comprehensive comparative report and analysis, which will be finalized and published in 2020. Susanne Gössl further specified the network’s approach on how the individual reports are to be composed. This is to take CJEU and ECtHR case law in all fields of the law where member states’ awareness is high (e.g. name law, surrogacy and same-sex marriage) as a starting point and then look at the individual states’ implementations, including in particular the recognition by judgments and by rules of PIL. As the network is not limited to international family law, future meetings and comparative reports will also deal with commercial law topics.

Marion Ho-Dac, Valenciennes, then set out the methodological approaches to recognition. She highlighted the increasing importance of cross-border continuity of status in view of the circulation of people and recent refugee movements. When looking at the Member States’ approaches, she stressed two considerations one has to bear in mind: the legal technique of recognition and the underlying legal policy thereof. She then set of the three different approaches: traditional PIL methods, procedural recognition and alternative methods (e.g. uniform law on supranational level or a mutual recognition system at EU level). However, she concluded that none of these were perfect methods. In his responsio, Tamás Szabados, Budapest, doubted that legislators always have a clear methodology in mind. He exemplified this by the Hungarian PIL Act, in effect since 2018, in which no general theory of recognition is followed, although the responsible committee was aware of the recognition questions discussed.

Sarah den Haese, Gent, then referred to a 2014 academic proposal on the recognition of names that was not acted upon by the Commission and analysed its weaknesses which need addressing for a future proposal to be successful. Firstly, any proposal would require a harmonisation of conflict of laws rules. Secondly, she proposed recognition without a conflict of laws test and no control of the substantive law subject to a very narrow public policy exception only. Tena Hoško, Zagreb, responded by setting out the conflict rules implemented in Croatia. Although academic proposals had been submitted, the Croatian legislator did not follow them but rather opted to copy the German conflicts rule (Art. 10 EGBGB). Although she exemplified certain weaknesses in this newly implemented approach (i.e. the issues of dual citizenship and renvoi), she concluded that the new rules are a huge step forward.

The workshop session

The public session was followed by a workshop session in which the preliminary results of the draft comparative report on “Recognition/Acceptance of Legal Situations” were discussed among the project participants and a few other interested parties. The workshop contained four parts, each initiated by a short introduction summarising the major findings and followed by an in-depth discussion among the participants.

In the first part, the general awareness was addressed. In her introduction, Giulia Vallar, Milan, pointed out an academic awareness in many Member States that a comprehensive overhaul of the rules of PIL is required. This awareness is also registered by the legislator, however mostly by countries that were involved in CJEU cases. She went on to set out the areas of law in which awareness for recognition is high (e.g. name law and same-sex marriages or partnerships). She concluded that based on their awareness of the issue, the analysed Member States can be subdivided into those involved in CJEU cases, those indirectly influenced by CJEU case law and those influenced by the ECtHR.

The second part, focusing to the legal methodology employed for recognition, was introduced by Katarzyna Miksza, Vilnius. She pointed out and illustrated the huge variety of methods of recognition detected by the draft comparative report by reference to national laws. In the subsequent discussion it was pointed out that it would be rather difficult to reconcile the different kinds of approaches to recognition.

Thirdly, the substantive requirements for recognition were discussed. In their presentation, María Asunción Cebrián Salvat and Isabel Lorente Martínez, Murcia, highlighted the (general) prohibition of a revision au fond as a starting point before outlining three hotspots of the public policy exception (surrogacy, same sex marriages or civil partnerships, and name law) and further challenges for recognition, in particular fraus legis and the legitimate expectations of the parties, in the various countries. In the subsequent discussion it was pointed out that the comparative report also shows that the public policy exception does not only function as a bar to recognition, but can, as well as human rights, require and facilitate recognition.

Finally, the formal requirements for recognition were discussed. Florian Heindler, Vienna, initially drew attention to the difficulty of distinguishing between formal and substantive requirements and stated the definition of the comparative report of the former as requirements relating to form (i.e. of documents) as well as procedural requirements (regarding certain additional procedural steps). Also in the subsequent discussion the challenging identification and categorisation of requirements was brought up.

In the final discussion, it was immediately agreed that the project was until now only able to scratch the surface of the issues and further work and discussions were required and promising. Therefore, a continuation of the project was agreed on and a further meeting is already being planned.

Contracts for the International Sale of Goods: A Multidisciplinary Perspective is set to be released by Thomson Reuters (Hong Kong) Limited at the end of July 2019. Edited by Dr Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, University of Tasmania, and Dr Sai Ramani Garimella, Senior Assistant Professor, Faculty of Legal Studies, South Asian University, this book has the following unique features:

• On the 30th anniversary of the implementation of the CISG (in the year 2018) and almost the 40th anniversary of the adoption of the text of the CISG (in the year 2020), this title at the right time provides value added content for students and practitioners alike considering CISG and its intersection with public domestic and international law;
• Unique and jurisdictionally relevant thought-leadership content – presents national perspectives;
• Providing fresh critiques on core principles as well as forecasting on potential areas for reform or improvement
• Multi-country author team providing perspectives from across diverse global jurisdictions as well as contributions from members of the Permanent Court of Arbitration (The Hague) and The Secretariat of the United Nations Commission on International Trade Law (UNCITRAL)

Contributors include:

Poomintr Sooksripaisarnkit – Lecturer in Maritime Law, Australian Maritime College, University of Tasmania

Sai Ramani Garimella – Senior Assistant Professor, Faculty of Legal Studies, South Asian University

John Felemegas – Senior Lecturer, Faculty of Law, University of Technology Sydney

King Fung Tsang – Associate Professor, Faculty of Law, The Chinese University of Hong Kong

Daniel Mathew – Assistant Professor, National Law University, Delhi

Lijun (Liz) Zhao – Senior Lecturer, School of Law, Middlesex University

Ernesto Vargas Weil – Assistant Professor for Private Law, University of Chile

Ngoc Bich Du – Dean, Faculty of Law, Open University of Ho Chi Minh City

Julian Bordaçahar – Legal Counsel, The Permanent Court of Arbitration, The Hague

Juan Ignacio Massun – Legal Counsel, The Permanent Court of Arbitration, The Hague

Benjamin Hayward – Senior Lecturer, Department of Business Law and Taxation, Monash Business School, Monash University

Rosmy Joan – Assistant Professor, Faculty of Law, National Law University Jodhpur

Andre Janssen – Chair Professor, Radbound University Nijmegen, The Netherlands

Luca Castellani – Legal Officer, The Secretariat of the United Nations Commission on International Trade Law (UNCITRAL)

Navin G. Ahuja – Doctoral Candidate, City University of Hong Kong

Dharmita Prasad – Assistant Professor, UPES School of Law

Details of the book shall be available soon from the publisher’s website: www.sweetandmaxwell.com.hk

To order:

Tel: +852 2847 2000

Fax: +852 2520 6954

E-mail: legal.hk@thomsonreuters.com

Mailing address: Sweet & Maxwell, Thomson Reuters Hong Kong Ltd, 15/F Cityplaza 3, Taikoo Shing, Hong Kong

Promotion code: CISG2019 – valid on or before 31 July 2019

For more information about the book, you can contact Dr Poomintr Sooksripaisarnkit (poonmintr@icloud.com) or Dr Sai Ramani Garimella (ramani@sau.ac.in)

PROGRAM COORDINATOR:
Prof. Marco Torsello

VENUE:
University of Verona, School of Law, Via C. Montanari 9, Verona (VR), Italy
INSTRUCTORS:
Ronald A. Brand (University of Pittsburgh, School of Law, Pittsburgh, PA, USA)
Tim W. Dornis (Leuphana University, Lüneburg, Germany)
Nevena Jevremovic (IACCM – International Association for Contract and Commercial Management, Bosnia-Herzegovina)
Tyler Ochoa (Santa Clara University, School of Law, Santa Clara, CA, USA)
Marco Torsello (Univ. of Verona, School of Law).

Pennsylvania lawyers participating to the course will obtain Continuing Legal Education (CLE) credits: additional information and registration instructions will be posted on-line at: www.law.pitt.edu/Verona

Dr. Alexia Pato (Senior Research Fellow at the University of Bonn) has authored a book on jurisdiction and cross-border collective redress (Hart Publishing). You may pre-order it online. A discount voucher is available here.

Summary:

Widespread law violations, such as massive data breaches, the use of unfair terms, and financial fraud, may affect numerous victims around the globe. Those violations are on the rise, stimulated by globalisation and digitalisation. Unfortunately, the development of effective procedural vehicles enabling victims to obtain redress is comparatively slow. As a result, a private enforcement gap persists, which can be characterised by a difference between the theoretical possibilities to obtain redress drafted by the legislator and the reality experienced by victims in daily life. Collective redress represents an interesting instrument, which may have the power to fulfil that gap. The US experience regarding the class action is a telling example in that regard. On the other side of the Atlantic, European Member States have adopted collective redress mechanisms, the features of which often differ from their American homologue. As a result, issues regarding their effectiveness have arisen and legal reforms have started in an attempt to solve them.

The adoption of collective redress certainly generates complex legal issues. The present book specifically analyses the allocation of jurisdiction in cross-border collective redress cases, inasmuch as it directly impacts access to justice. To that effect, several collective redress mechanisms, including the Dutch WCAM, the test case procedure, the class action, and the representative model involving intermediaries, are studied (ch 2). Their structure, functioning and goal(s) are explained and a comparative law table containing information on more than 20 collective redress instruments summarises those elements (annex II). The book takes full account of the US law on class actions in order to enrich the comparative law study (ch 1).

Then, difficulties in applying private international law rules on jurisdiction to selected collective redress models are highlighted and analysed. The most relevant case law is examined as well. Notably, the Shell decision issued by the Amsterdam Court of Appeal, the recent CJEU’s ruling in Schrems (C?498/16), and the VW scandal are thoroughly studied. Chapter 3 of the book highlights the current mismatch between European private international law rules on jurisdiction (BIa) on the one hand, and collective redress procedures on the other. As a result, the centralisation of claims protecting either general or collective interests in a unique forum is often difficult – not to say impossible. Besides, significant obstacles, such as costs of proceedings, lack of financing, and language barriers, further deter access to justice. The unprecedented empirical study included in this book confirms that statement (annex III).

In light of this, the EU has presented several policy papers; drafted a Recommendation in 2013; and enacted Article 80 of the General Data Protection Regulation dealing with the representation of data subjects. Besides, the Directive on representative actions is in the pipeline. A comprehensive analysis of those documents is provided in chapter 2 of the book. Although those legislative efforts are welcome, this book contends that EU measures have not satisfactorily lowered barriers to access to justice. Therefore, the creation of a new head of jurisdiction for international collective redress cases is proposed, the content of which is presented in chapter 4 of the book.

A table of contents is available here.

Written by Michele Angelo Lupoi, Civil Procedural Law and European Judicial Cooperation, University of Bologna

The Department of Juridical Sciences of the University of Bologna, Ravenna Campus, has organized a Summer School on Transnational Tort Litigation: Jurisdiction and Remedies, to be held in Ravenna, on July 15-19, 2019.

The Summer School deals with transnational jurisdiction, private international law and remedies available in tort cross-border litigation, with both a theoretical and a practical approach. The Faculty includes experts from US and EU in order to provide a comparative perspective to the participants.

The US perspective will be centered on procedural remedies for mass-torts (class actions) and on the assumption of jurisdiction in transnational toxic tort litigation (e.g. asbestos and tobacco tort disputes). The EU part of the programme will address the Brussels I-bis Regulation as regards jurisdiction in tort claims, and the Rome II Regulation, in relation to the law applicable to transnational tort disputes.

The Summer School is aimed at law students as well as law graduates and lawyers who want to obtain a specialised knowledge in this area of International Civil Procedure.

Deadline for inscriptions: 28 June 2019. Programme and further information can be found here

For those who read Portuguese, here is a round-up of books published in Portugal and Brazil in the last year or so. Abstracts in English hereunder provided when available.

Rui Dias, Pactos de Jurisdição Societários, Almedina, 2018

“This study is dedicated to an analysis, from the point of view of both private international law and company law, of company-law related choice-of-court agreements under Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia).

After an introductory framing that emphasizes the intersection of EU private international law applicable to companies and Portuguese national corporate law, we begin by analysing the jurisprudence of the Court of Justice of the European Union in Powell Duffryn, where it has been established that «when the company’s statutes contain a clause conferring jurisdiction, every shareholder is deemed to be aware of that clause and actually to consent to the assignment of jurisdiction for which it provides if the statutes are lodged in a place to which the shareholder may have access, such as the seat of the company, or are contained in a public register».

The European Court’s reasoning raises issues, when confronted with the most common understanding of the choice-of-court agreement as a contract. That justifies an inquiry on the role of consent and agreement in its conclusion, and, in the end, the search for a comprehension of its legal nature, with the Brussels Ia legal framework in mind. By asserting the logical-legal antecedence of private autonomy, as put in motion by the conclusion of a jurisdictional agreement, vis-à-vis a so-called statutory ordinance of competence instituted by a given positive-legal regime situated in time and space, we see advantages in the delineation of a framework that considers illegitimate the allegation of existence and the exercise of a jurisdictional clause, whenever there is not an indispensable minimum of correspondence between the contents of such clause and a person’s consent — be it a realconsent, or rather one that is to her reasonably imputable, given that the person was in the position to be able to know, or ought to know, the content of such clause, included in a contract or statutes that bind her.

With these elements in mind, we undertake an analysis of the conditions of admissibility, validity and effectiveness of a choice-of-court-agreement under Brussels Ia. After referring to the scope of application of such rules, as well as to the general framework regarding the «external» and «internal» limits of the binding effects of such agreements, we draw attention to the particular situation of the extension of such binding effects, beyond a strict understanding of consent, in statutes of companies.

We then tackle some situations of particular uncertainty, where company-legal and conflicts-of-law and conflicts-of-jurisdiction aspects are, more or less inextricably, simultaneously at stake, namely: the law applicable to jurisdiction agreements and the scope of its application (especially regarding the recast version of now Article 25 of Brussels Ia); the relevance of statutes and generally corporate-related regulation; the limitations imposed by the latter to jurisdictional undertakings; the possible safeguards against an abusive invocation or exercise of the jurisdiction agreement; and the need to set and analyse choice-of-court agreements within the framework of rules applicable to agreements related to corporate liability suits — thus crossing the borders of national and European law, and of corporate and jurisdictional law.”

Dulce Lopes, Eficácia, Reconhecimento e Execução de Actos Administrativos Estrangeiros, Almedina, 2018

“The recognition of foreign administrative acts has gained again – after more than a century – a striking importance in doctrinal and legislative terms. In a world were distances are rapidly overcome and new forms of private and public interaction develop, the exercise of sovereignty is reconceptualised.

Now, with more importance and frequency, foreign administrative acts — originally or subsequently – aim at being recognised and executed in/by other States (the receiving, host or destination States, distinct from the issuing or home authorities), raising once again, but in a quite different manner, the challenging questions of extraterritoriality and jurisdiction.

However not always greater attention means better regulation. And this is a field were, unlike what should be expected (or desired), plurality and fragmentation are still the rule and the need for clarification of recognition procedures is crucial.

Indeed, beyond the recognition demands resulting from international and European Union law demands and from a few specific legislative provisions, there is no general framework on recognition and enforcement of foreign administrative acts, nor in what regards their possible effects, neither in what concerns the requirements and procedures from which they can or should be drawn.

Our proposal rests in the identification of three types of foreign administrative acts. While supranational administrative acts,despite their various origins, have an immanent and immediate aptitude to be applied to areas under State influence, transnational administrative actshave as a normal – but not always immediate – characteristic the extension of their effects to States that are under a recognition obligation. Foreign administrative acts in a strict sense, constitute a third category that doesn’t have the same coherence as the former two. In principle, these acts only produce effects within the limits of the issuing State, because they do not have a qualified title to recognition, but this can also be altered.

A relevant part of our efforts was centred in the definition of the substantial and procedural criteria for recognition and enforcement of suchforeign administrative acts, criteria that – varying according to the type of foreign act and respective effects – constitute the basis of a structured, however plural, proposal for recognition.”

Afonso Patrão, Hipoteca e Autonomia Conflitual, Gestlegal, 2018

“Considering statistical data suggesting national compartmentalisation of mortgage markets (land security rights are essential for internal credit but less than 1% of all international credit involves mortgages) and acknowledging the failure of the proposals of building a European mortgage single market (unification of mortgage laws; introduction of Eurohypothec as an additional optional legal regime; securitisation of granted mortgage loans), this text studies the feasibility of introducing party autonomy in mortgage law, allowing the parties to choose the applicable law to this property right.

The choice of law to land security rights is in harmony with the tendency of dépeçage of private international law on property rights and with the purpose of European integration. Provided that adequate precautions are taken, the author aims to show there is no reason for the mandatory application of lex rei sitae to mortgages.” 

Dário Moura Vicente, Direito Internacional Privado – Ensaios, vol. IV, Almedina, 2018

This is a collection of essays published by the Professor of the University of Lisbon, now in its fourth volume.

Luís de Lima Pinheiro, Direito Internacional Privado, Volume III – Tomo I – Competência Internacional, AAFDL, 3rd edition, 2019

A new edition of the first part – on jurisdiction – of Volume III of the handbook on Private International Law by the Professor of the University of Lisbon.

—

André de Carvalho Ramos / Nádia de Araújo (org.), A Conferência da Haia de Direito Internacional Privado e seus Impactos na Sociedade – 125 anos (1893-2018), Arraes Editores, 2018

A collection of essays celebrating the 125thanniversary of the Hague Conference on Private International Law.

Jean Eduardo Nicolau, Direito Internacional Privado do Esporte, Quartier Latin, 2018

A PhD thesis on the Private International Law of Sport.

Mariana Sebalhos Jorge, A Residência Habitual no Direito Internacional Privado, Arraes Editores, 2018

A Masters thesis on the habitual residence connecting factor in Private International Law.

Alexandre Jorge Carneiro da Cunha Filho et al. (coord.), Lei de Introdução às Normas do Direito Brasileiro – Anotada, Volume I,Quartier Latin, 2019

This is an article-by-article commentary to the Brazilian law containing rules on Private International Law.

Gustavo Ferraz de Campos Monaco, Conflitos de Leis no Espaço e Lacunas (Inter)Sistêmicas, Quartier Latin, 2019

Thesis recently presented by the Author to achieve full professorship at the University of São Paulo.

Written by Gustavo Becker*  

During the 26th Willem C. Vis Moot, Dr. Gustavo Moser, counsel at the London Court of International Arbitration and Ph.D. in international commercial law from the University of Basel, coordinated the organization of a seminar regarding choice of law in international contracts and international arbitration. The seminar’s topics revolved around Dr. Moser’s recent book Rethinking Choice of Law in Cross-Border Sales (Eleven, 2018) which has been globally recognized as one of the most useful books for international commercial lawyers.

On April 15th, taking place at Hotel Regina, in Vienna, the afternoon seminar involved a panel organized and moderated by Dr. Moser and composed of Prof. Ingeborg Schwenzer, Prof. Petra Butler, Prof. Andrea Bjorklund, and Dr. Lisa Spagnolo.The panel addressed three core topics in the current scenario of cross-border sales contracts: Choice of law and Brexit, drafting choice of law clauses, and CISG status and prospects.

The conference started with a video presentation in which Michael Mcllwrath (Baker Hughes, GE), addressed his perspectives on how Brexit might impact decisions from companies regarding choice of law clauses in international contracts, its effects on the recognition of London as the leading seat for dispute resolution, and the position of English law as the most applicable law in international contracts.

In Mr. Mcllwrath’s perspective, in spite of Brexit, London will still remain a significant place for international dispute resolution as it adoptsglobally recognized commercial law principles, is an arbitration friendly state and enjoys a highly praised image as a safe seat for international cases. However, in order to try to predict the impact of Brexit in international dispute resolution, Mr. Mcllwrath collected data released by arbitral institutions and found that in the years leading up to the Brexit vote, London did not grow as a seat of arbitration significantly. Considerable growth nonetheless has been seen outside the traditional centers of international arbitration. Therefore, the big issue involving Brexit, in Mr. Mcllwrath’s view, is the uncertainty that companies will face with the UK’s unsettled political future. For this reason, the revision of contract policies is now likely to be undertaken and the choice of English law in international contracts might be affected.

Prof. Schwenzer pointed out that the whole discussion about Brexit and its effects on international dispute resolution depends primarily on the type of Brexit that will be chosen and the agreements between Europe and Great Britain. In her point of view, one of the main questions is whether the UK will join the Lugano Convention, which would make the enforcement of English court decisions easier in European State-members. Prof. Schwenzer also highlighted that, in terms of choice of law, there will be uncertainty issues regarding the regulations that have been imported from Europe and are now part of the English legal system. The problem might be how these rules will be developed further as the Court of Justice of the European Union will no longer be responsible for interpreting this part of English law.

Furthermore, Prof. Bjorklund stated that, whilst the choice of English law will require more caution after Brexit, the well-recognized security related to arbitration in the UK is likely to continue as long as the New York Convention, the English Arbitration Act, and the arbitration friendly character of English commercial courts will not likely change. However, in the point of view of an international arbitration counsel, certainly, the “risks of arbitrating in the UK” will leave some room for parties to choose arbitration in other places rather than in London or – at least – to start rethinking the classic choice for English-seated arbitration.

Concerning the choice of English law, Prof. Butler reminded the audience of two important regulations which should be analyzed in the context of Brexit: Rome I for deciding which contract law is applicable in international cases, and the Brussels Regulation to define which court is entitled to decide a case and how to enforce and recognize foreign decisions within the EU. According to Prof. Butler, under the first Brexit bill, the statutes signed within the EU regime would still apply. However, subject to confirmation from the English government, the development of these laws might no longer be applicable.

Dr. Spagnolo added that whether a country joins an international instrument sometimes has little to do with rational factors and are often “emotional”. In this sense, one of the arguments that the political environment seems to emphasize nowadays under the notion of nationalism is the maintenance of sovereignty. According to Dr. Spagnolo, this is a dangerous consideration to be emphasized in an environment that relies on commercial sense and needs basic guarantees of international harmonization, such as the enforcement of foreign awards or the application of a uniform law.

Regarding the topic “drafting choice of law clauses”, Mr. Mcllwrath highlighted the “emotional” features involving the choice of law. In his opinion, as Dr. Moser has demonstrated in his book, many choices of law decisions are driven by factors such as how many times a specific law had already been applied by a law firm or what law the attorneys involved in that contract were already familiar with. Considering this, Mr. Mcllwrath understands that Brexit can make lawyers rethink the application of English law, even though this might be dependant upon whether financial institutions and companies currently based in London will or will not move away from the UK.

Prof. Schwenzer highlighted that what Dr. Moser has found in his research regarding the emotional aspect of the choice of law is a proving fact of what she has experienced in practice: choice of law decisions are mostly emotionally charged and seldom rational. One example is that even though Swiss law is arguably the second most chosen law in international contracts, in Prof. Schwenzer’s view, Swiss law is not predictable: in core areas of contract law, such as limitation of liability, Swiss law is not advantageous for commercial contracts in her opinion. Prof. Schwenzer added that this shows that lawyers seldom analyze the pros and cons of laws deeply before applying them in international commercial contracts.

Concluding the panel discussions, Dr. Moser brought up the topic “CISG status and prospects”.  While discussing this matter, all the panelists agreed upon the urgent need of global initiatives to increase awareness and improve knowledge of the CISG for both young lawyers who are sitting for the bar exam, and for judges who will face international commercial cases and might not be familiar with the CISG or even prepared to apply its set of provisions.

*With contributions from Gustavo Moser

The Centre for European Policy (CEP) in Freiburg (Breisgau) is the European-policy think tank of the German non-profit foundation “Stiftung Ordnungspolitik”. It has just released its policy brief on the Proposal COM(2018) 96 of 12 March 2018 for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims. The CEP’s main conclusion reads as follows:

“The general rule, that the applicable law is that of the assignor’s habitual residence, strengthens legal clarity and thus legal certainty. However, it increases transaction costs and complexity. For syndicated loans, an exception to the general rule should be added to avoid the application of various laws. To avoid legal uncertainty, the Regulation must clarify what is meant by the habitual residence ‘at the material time’ and should only allow overriding mandatory provisions of the law of the Member State in which the assignment has to be or has been performed. The Regulation’s rules on conflict of laws overlap with those of other EU directives and regulations. This results in inconsistencies.”

The full text of the policy brief is available here. See also the earlier posts on this topic by Robert Freitag and by Leonhard Hübner.