Conflictoflaws

The annual governance meeting of the Hague Conference on Private International Law (HCCH) will take place from 3 to 6 March 2020. The list of documents that have been submitted to the HCCH governance body (i.e. the Council on General Affairs and Policy) is available here.

Recent documents that have not yet been mentioned in this blog that are worthy of note are the following:

• Recommended Form under the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Prel. Doc. 4 of December 2019 –for approval) –  drafted by the Permanent Bureau (PB) of the HCCH which “was in constant consultation with the Chair of the Drafting Committee, the Chair of the Commission on Judgments, and Members interested in this particular issue.” The PB took forms contained in international and regional instruments into account, including Brussels Ia Regulation.
• Development of the Legal Guide to Uniform Legal Instruments in the area of international commercial contracts (with a focus on sales) (Prel. Doc. 16 of January 2020 – for info only)
• Overview of the findings of the Experts’ Group on cross-border recognition and enforcement of agreements in family matters involving children in relation to the development of a normative instrument (Info. Doc. 2 of January 2020 – for info only)
• The HCCH and the United Nations Sustainable Development Goals (Info. Doc. 3 of January 2020 – for info only)

A few meetings of the Special Commission (i.e. global meetings of experts) to review the practical operation of HCCH Conventions are in the pipeline and have been submitted for approval to Council concerning the following Conventions: the HCCH Apostille Convention, the HCCH Adults Convention, the HCCH Child Support Convention and the HCCH Maintenance Obligations Protocol. For the last three, if approved, it will be the first global meeting ever on their practical operation. See Prel. Docs 9, 10 and 12.

Participation in these meetings is restricted, as they are open only to delegates or experts designated by the Members of the HCCH, invited non-Member States and International Organisations that have been granted observer status.

Written by Jonathan Fitchen

The UK’s intention to attempt to accede to the 2007 Lugano Convention is apparently proceeding apace. Though the events leading up to Friday 31st January, when the UK left the EU,  rather overshadowed this fact, the UK Government had already announced that its intention to accede by a posting on 28th January 2020 that may be found here https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-the-lugano-convention-2007   As will be remembered, the 2007 Lugano Convention is open to non-EU third States if the consent of all the existing Convention parties can be first secured. The UK Gov posting records that the UK has secured statements in support of it joining the 2007 Convention from the Swiss, the Norwegians and Iceland. So now all that is required is to secure the consent of the EU to this course of action. Assuming that such consent can be secured, the UK Gov posting records that it is the intention of the UK Government to accede to the 2007 Convention at the end of the transition period (currently scheduled / assumed for 23.00 GMT on 31st December 2020).

In an unprecedented manner, the UK has dealt with its problems around Brexit and its relations with the Contracting States to two HCCH Conventions on the international plane. The Depositary (i.e. the Ministry of Foreign Affairs of the Kingdom of the Netherlands) has just announced that the UK has withdrawn its instruments of ratification of the HCCH Child Support Convention and instrument of accession to the HCCH Choice of Court Convention, together with its declarations and extension to Gibraltar, which actually never came into effect and were apparently only a backup option to a no-deal Brexit; see our previous posts (“some Brexit news” part 1, part 2 and part 3 and the more recent post “Brexit: No need to stop all the clocks” here).

As stated in the notification, the reason for the withdrawal of the instruments is the following: “Since the deposit of the Instrument of [Ratification and Accession], the United Kingdom and the European Union have signed, ratified and approved a Withdrawal Agreement, which will enter into force on 1 February 2020 (the “Withdrawal Agreement”). The Withdrawal Agreement includes provisions for a transition period to start on the date the Withdrawal Agreement enters into force and end on 31 December 2020 (the “transition period”). In accordance with the Withdrawal Agreement, during the transition period, European Union law, including the Agreement, will continue to be applicable to and in the United Kingdom” (our emphasis).

In its Note, the UK adds that it intends to deposit new instruments of ratification of and accession to the above-mentioned Conventions prior to the termination of the transition period. It remains to be seen whether the UK will submit the same declarations and whether it will extend those Conventions to Gibraltar.

The Depositary’s notifications are available here for the Child Support Convention and here for the Choice of Court Convention.

The last issue of the Revue critique de droit international privé has been released. It is a special edition on the Cloud Act and the General Regulation on Data Protection.

The abstracts of the articles, authored by Marie-Elodie Ancel, Patrick Jacob, Régis Bismuth and Théodore Christakis, are available here.

A full table of contents is available here.

As of today, Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations (see also, in an earlier post by Matthias Weller  on CoL on this matter: Mutual trust and judicial cooperation in the EU’s external relations – the blind spot in the EU’s Foreign Trade and Private International Law policy?).

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – are hosting a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the Hague Judgments Convention of 2019 as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the European Commission (DG Trade, DG Justice), and the German Ministry of Justice and for Consumers (Bundesjustizministerium der Justiz und für Verbraucherschutz).

For the HCCH as co-host, the event will be the European stop on their roadshow around the world to discuss their new Convention. The Conference will be further co-hosted by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 75.- to the costs of the event.  

Date:

Friday, 25 September 2020, and Saturday, 26 September 2020.

Venue:

Bonner Universitätsforum, Heussallee 18 – 22

Draft Programme

Friday, 25 September 2020

1.30 p.m.      Registration

2 p.m.           Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

2.10 p.m.      Part 1: Chances and Challenges of the Hague Judgments Convention 2019

Chairs of Part 1: Matthias Weller / Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.      Coffee Break

4.00 p.m.      Part 2: Chances and Challenges of the Hague Judgments Convention 2019 continued

Chairs of Part 2: Nina Dethloff / Moritz Brinkman

3. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

4. Grounds for refusal

Prof Dr Paco Garcimartín, University of Madrid

Discussion

5.30 p.m.      Part 3: Panel Discussion – Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries, 60 min:

Chairs of Part 3: Matthias Weller / Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc); Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”; Dr. Jan Teubel, German Ministry of Justice and for Consumers; RA Dr. Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt, and perhaps more…

Discussion

7 p.m.           Conference Dinner

Saturday

9.30 a.m.      Part 4: The context of the Hague Judgments Convention 2019

Chairs: Moritz Brinkmann/Philipp Reuss

5. Relation to the HCCH 2005 Convention Choice of Court Agreements

Prof Paul Beaumont, University of Stirlin

6. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Crétei

7. Brexit…

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee Break

11:30 a.m.    Part 4: The context of the Hague Judgments Convention 2019 continued

Chairs: Nina Dethloff / Matthias Lehman

8. South European Neighbouring and Candidate Countries

Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

9. MERCOSUR – EU

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

10. Relations to International Commercial Arbitration

Jose Angelo Estrella-Faria, Former Secretary General of UNIDROIT, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations (tbc)

Discussion

1 p.m.           Closing Remarks

                     Matthias Weller

Written by Jonathan Fitchen.

‘The time has come’; a common enough phrase which may, depending on the reader’s mood and temperament, be attributed variously to Lewis Carroll’s discursive Walrus, to Richard Wagner’s villainous Klingsor, or to the conclusion of Victor Hugo’s epigrammatic comment      to the effect that nothing is as powerful as an idea whose time has come. In the present context however ‘the time has come’ refers more prosaically to another step in the process described as ‘Brexit’ by which the UK continues to disentangle itself from the EU.

On the 31st of January 2020 at 24.00 CET (23.00 UK time) the UK ceases to be an EU Member State. This event is one that some plan to celebrate and other to mourn. For those interested in private international law and the conflict of laws in the EU or in the legal systems of the UK, celebration is unlikely to seem apt. Whether for the mundane reason that the transition period of the Withdrawal Agreement preserves the practical application and operation of most EU law concerning our subject in the UK and within the EU27 until the projected end point of 31st December 2020, or for deeper reasons connected with the losses to the subject that the EU and the UK must each experience due to the departure of the UK from the EU. If celebration is not appropriate must we therefore opt to mourn? This post suggests that mourning is not the only option (nor if overindulged is it a useful option) and sets out some thoughts on the wider implications for the private international laws of the UK’s legal systems and the legal systems that will comprise the EU27 consequent on the UK’s departure.

This exercise is necessarily speculative and very much a matter of what one wishes to include in or omit from the equation under construction. If too little is included, the result may be of only abstract relevance; if too much is included, the equation may be incapable of solution and hence useless for the intended purpose of calculation. Such difficulties, albeit expressed in a non-mathematical form, are familiar to private international lawyers who while engaging with their subject routinely consider the macroscopic, the microscopic and many points in between. In what remains of this post I will offer some thoughts that hopefully will provoke further thoughts while avoiding useless abstraction and (at least for present purposes) ‘useless’ incalculability.

The loudest calls for the UK to leave the EU did not arise from UK private international law, nor from its practitioners; few UK private international lawyers appear to have wished for Brexit as a means of reforming private international law. Whatever appeals to nostalgia may have swayed opinions in other sectors of the UK and may have induced those within them to vote to leave, they were not expressed with reference to matters of private international law. Few who remember or know the law as it stood in any of the UK’s legal systems prior to the implementation of the UK’s accession to the Brussels Convention of 1968 would willingly journey back to the law as it then stood and regard it as an upgrade. Mercifully, aspects of this view are, at present, apparently shared by the UK Government and account for its wish, after ‘copying and pasting’ most EU law and private international law into the novel domestic category of ‘retained EU Law’, to then amend and allow that which does not depend on reciprocity to be re-presented as a domestic private international law to be applied within and by the UK’s legal systems: thus the Rome I and Rome II Regulations will be eventually so ‘imitated’ within the legal systems of the UK. Unfortunately, many other EU provisions do require reciprocity, and thus cannot be ‘saved’ in this manner; for these provisions the news in the UK is less good.  

There are however other available means of salvage. Because the UK will no longer be an EU Member State at 24.00 Brussels Time it may, but for the Withdrawal Agreement, thereafter participate more fully in proceedings and projects at the Hague Conference on Private International Law. The UK plans to domestically clarify the domestic understanding of certain existing Hague conventions, e.g. 1996 Parental Responsibility Convention, via the recently announced Private International Law (Implementation of Agreements) Bill 2019. Earlier in 2018 the UK deposited instruments of accession concerning conventions it plans to ratify at the end of the Withdrawal Agreement’s transition period to attempt to retain prospectively the salvageable aspects of certain reciprocity requiring EU private international law Regulations lost via Brexit: thus, the UK plans to ratify the 2005 Choice of Court Convention and the 2007 Maintenance Convention. After these ratifications it may be that the UK will also consider the ratification of the 2019 judgment enforcement convention, particularly it the EU takes this option too. In the medium and long term however, the UK, assuming it wishes to participate in an active sense, will have to accept the practical limitations of the HCCH as it (the UK) becomes accustomed to the differences, difficulties and frustrations of private international law reform via optional instruments that all the intended parties are entitled to refuse to opt-in to or ratify.

Over the medium term and longer term, it should additionally be noted that though the UK has left the EU it has not cast-off and sailed away from continental Europe at a speed in excess of normal tectonic progress: there may therefore eventually be further developments between the two. It may be that the UK can be induced at some point in the future, when Brexit has become more mundane and less politically volatile within the UK, to cooperate in relation to private international law in a deeper sense with the EU27; whether by negotiating to join the 2007 Lugano Convention or a new convention pertaining to aspects of private international law. If this last idea seems too controversial then maybe it would be possible for the UK to eventually negotiate with an existing EU Member State as a third country via Regulation 664/2009 or Regulation 662/2009 or perhaps via another yet to be produced Regulation with a somewhat analogous effect? Brexit, considered in terms of private international law, may well re-focus a number of existing questions for the EU27 pertaining to the interaction of its private international law with third States, whether former Member States or not.   

What is however unavoidably lost by Brexit is the UK’s direct influence on the development and particularly the periodic recasting of the EU’s private international law: this loss cuts both ways. For the EU27 the UK will no longer be at the negotiating table to offer suggestions, criticisms and improvements to the texts of new and recast Regulations. For the EU27 this loss is somewhat greater than it might appear from the list of Regulations that the UK did not opt-in to as the terms of the UK’s involvement in these matters permitted it to so participate without having opted-in to the draft Regulation.   

The suggested loss of influence will however probably be felt most acutely by the private international lawyers in the UK. Despite the momentary impetus and excitement of salvaging that which may be salvaged and ratifying that which may be ratified to mitigate the effect of Brexit on private international law, the reality is that we in the UK will have lost two of the motive forces that have seen our subject develop and flourish over decades: viz. the European Commission and the domestic political reaction thereunto. Post-Brexit, once the salvaging (etc.) is done, it seems unlikely that the UK Government will continue to regard a private international law now no longer affected by Commission initiatives or re-casting procedures as retaining its former importance or meriting any greater legislative relevance than other areas of potential law reform. The position may be otherwise in Scotland as private international law is a devolved competence that devolution entrusted to the Scottish Government. It may be that once the dust has settled and the returning UK competence related reforms have been applied that the comparatively EU-friendly Scottish Government may seek to domestically align aspects of Scots private international law with EU law equivalents. For he who would mourn for the effect of Brexit on the subject of private international law, it is the abovementioned loss of influence of the subject at both the EU level and particularly at the domestic level that most merits a brief period of mourning. After this, the natural but presently unanswerable question of, ‘What now?’ occurs. Though speculation is offered above, all in the short term will depend on the progress in negotiations over an unfortunately already shortened but technically still extendable transition period during which the EU and UK are to attempt to negotiate a Free Trade Agreement: thereafter for the medium term and long term all depends on the future political relationship of the EU and the UK.

The first 2020 issue RabelsZ has just been released. It features the following articles:

Magnus, Robert, Unternehmenspersönlichkeitsrechte im digitalen Raum und Internationales Privatrecht (Corporate Personality Rights on the Internet and the Applicable Law), pp. 1 et seq

Companies can defend themselves against defamatory and business-damaging statements made on the internet. German case law in this area is based primarily on the concept of a corporate right relating to personality, which has some similarities but also important differences to the personality rights of natural persons. A corresponding legal right is also recognised in European law. However, determining the applicable law for these claims proves to be difficult. First of all, it is an open though not yet much-discussed question whether the exception in Art. 1(2) lit. g Rome II Regulation for “violation[s] of privacy or personal rights” is limited to the rights of natural persons or whether it applies also to the corresponding claims of legal entities. Moreover, the determination “of the country in which the damage occurs” in accordance with Art. 4(1) Rome II Regulation is hotly debated with respect to violations of rights relating to personality, especially when the violations were committed via the internet. The thus far prevailing mosaic principle produces excessively complex results and therefore makes it unreasonably difficult to enforce the protected legal position. This article discusses alternative concepts for the determination of the applicable law for these actions and analyses the scope and background of the exception in Art. 1(2) lit. g Rome II Regulation.

Thon, Marian, Transnationaler Datenschutz: Das Internationale Datenprivatrecht der DS-GVO (Transnational Data Protection: The GDPR and Conflict of Laws), pp. 24 et seq

This article analyses the territorial scope of the new General Data Protection Regulation (GDPR) and addresses the question whether Article 3 GDPR can be considered as a conflict-of-law rule. It analyses the possibility of agreements on the applicable law and argues that Article 3 GDPR qualifies as an overriding mandatory provision. It finds that the issue of the applicable national law is no longer addressed by the GDPR and that a crucial distinction should therefore be made between internal and external conflicts of law. It argues that the country-of-origin principle is the key to determining which national data protection law applies. Furthermore, the article analyses Article 3 GDPR in more detail from the perspective of private international law. It finds that the targeting criterion is helpful in mitigating the problem of information asymmetries in view of the applicable data protection law. However, it criticizes the establishment criterion because it puts European companies at a competitive disadvantage. Finally, the article proposes to incorporate a “universal” conflict-of-law rule into the Rome II Regulation which should be accompanied by a general conflict-of-law rule specifically addressing violations of privacy and rights relating to personality.

Voß, Wiebke, Gerichtsverbundene Online-Streitbeilegung: ein Zukunftsmodell? Die online multi-door courthouses des englischen und kanadischen Rechts (Court-connected ODR: A Model for the Future? – Online Multi-door Courthouses Under English and Canadian Law), pp. 62 et seq

Will conflict management systems based on the model of companies such as eBay and PayPal soon become a part of civil proceedings before German state courts? Recently, some thought has been given to the development of a new “expedited online procedure” designed to provide an affordable and fast alternative to traditional civil litigation for small consumer claims, thus broadening access to justice. After a brief outline of the current barriers to the justice system and the shortcomings of the private ODR platforms consumers often turn to instead, this article explores the concept of online procedures which other legal systems have developed in response to similar challenges. The analysis of typical, trendsetting examples of e-courts – the Civil Resolution Tribunal under Canadian Law as well as the Online Court that is currently being established in England – reveals a new model of court-connected ODR that is based on the integration of private ODR structures into the justice system. By harnessing digital technologies and integrating methods of dispute prevention and consensual dispute resolution into the state-based proceedings, such online courts offer enormous potential for lay-friendly, accessible civil justice while at the same time using scarce judicial resources sparingly. On the other hand, online technology alone is not a panacea. Establishing online procedures in Germany poses challenges which go beyond the technical dimension. These procedures may conflict with constitutional requirements and procedural maxims such as the principle of open justice, the right to be heard before the legally designated court and the principle of immediacy. However, a well thought-out design and minor modifications of the English and Canadian models would avoid these conflicts without losing the benefits of the innovative procedure.

Monsenepwo, Justin, Vereinheitlichung des Wirtschaftsrechts in Afrika durch die OHADA (The Unification of Business Law in Africa Through OHADA), pp. 97 et seq

In the 1980s, legal and judicial uncertainty prevailed in most western and central African countries, thereby impeding local and foreign investments. To improve the investment climate and further legal and economic integration in Africa, fourteen western and central African States created the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (Organization for the Harmonization of Business Law in Africa, OHADA) on 17 October 1993. As per the preamble of the Treaty on the Harmonization of Business Law in Africa, OHADA aims to harmonize business laws in Africa through the elaboration and the adoption of simple, modern, and common business law regulations adapted to the economies of its Member States. Nearly two decades after its creation, OHADA has developed ten Uniform Acts and three main Regulations, which cover several legal areas, such as company law, commercial law, security interests, mediation, arbitration, enforcement procedures, bankruptcy, transportation law, and accounting. This article analyses the historical background, the institutions, and the main provisions of some of these Uniform Acts and Regulations. It also recommends a few legal areas which OHADA should make uniform to increase legal certainty and predictability in civil and commercial transactions in Africa.

A postdoctoral fellowship at the Faculty of Law at the Hebrew University is available for the academic year of 2020-2021. The position is part of the “Old Identities, New Times: Does the Common Legal Identity Withstand Modernity?”, a research project headed by Dr Sharon Shakargy and funded by the Israeli Science Foundation (grant 835/18).

The research project deals with items of personal status, such as age, sex, religion, marital status, parenthood, legal capacity, and the changes in the regulation and perception thereof. The project investigates these items of personal status comparatively, focusing on Western legal systems but not limited to them. More details on the project are available here.

Scholars interested in perusing independent work related to the questions mentioned above are invited to apply. 

Qualifications: 

• Candidates’ doctoral dissertation has focused on, or closely connected to, family law, comparative private law, private international law (conflict of laws).
• Candidates will have submitted their doctoral dissertation by the starting date of the postdoctoral position. 
• Good knowledge of German, French or English private law/ family law is an advantage.
• Candidates must have an excellent command of the English language. Other relevant languages are an advantage. No Hebrew proficiency is required. 

Position Details: 

• The position is available starting from October 18, 2020, for a minimum of 3 months and a maximum of 12 months.
• Regular participation in workshops and other academic activities is expected throughout the academic terms.
• The compensation is a stipend of 10,000 ILS/ Month (~$US 2890; €2620). Health insurance, travel, accommodation and any other expenses are not covered.

Interested applicants should submit a 2-page long research proposal, their CV and publication list, and 1-2 letter(s) of recommendation to Sharon.Shakargy@mail.huji.ac.il by March 15, 2020. Please indicate “postdoc position” in the subject line. 

The University of Milan announces the first edition of the Master Programme on International Trade Compliance Control (IntTradec) to be held in Milan at the Department of International, Legal and Historical-Political Studies,

The Programme aims to train professional figures called to work within the Export Control Program, with a specific focus on International Trade Law, Private International Law, Customs Law and Tax Law.  It includes teaching activities and workshops for a total of 500 hours, and a training period of 300 hours.

More information is available here (in Italian).

Director: Prof. Angela Lupone, University of Milan

Scientific Committee:  Prof. Giovanna Adinolfi (UNIMI), dr. Cristian Battistello (consulente aziendale), prof. Andrea Carati (UNIMI), dr. Maurizio Castello, dr. Antonio Ciavatta (Baker Hughes), dr. Simone Dossi (UNIMI), prof. Manlio Frigo (UNIMI), prof. Alessandra Lang (UNIMI), prof. Laurent Manderieux (Università Bocconi), dr. Luca Moriconi (adjunct prof.), avv. Marco Padovan (Padovan Law Firm), dr. Marco Piredda (ENI S.p.a.), prof. Marco Pedrazzi (UNIMI), prof. Francesca Villata (UNIMI).

Stages and internships: Baker Hughes, Nuovo Pignone International S.r.l., Banca Popolare di Sondrio, Caleffi Hydronic Solutions, Comecer S.p.a., Elantas Europe S.r.l; Fratelli Cosulich S.p.a.; Modo Customs Services S.r.l.; Omal S.p.a., Sabaf S.p.a., StMicroelectronics S.r.l, Studio Legale Padovan (Milano). 

Contacts: direzione.intgiurpol@unimi.it

Deadline: 3 February 2020 (2 p.m.) with possibility of extention. 

by José Antonio Briceño Laborí, Professor of Private International Law, Universidad Central de Venezuela y Universidad Católica Andrés Bello

In 2019 the Venezuelan Private International Law (hereinafter “PIL”) academic community made clear that, despite all the difficulties, it remains active and has the energy to expand its activities and undertake new challenges.

As an example of this we have, firstly, the different events in which our professors have participated and the diversity of topics developed by them, among which the following stand out:

• XI Latin American Arbitration Conference, Asunción, Paraguay, May 2019 (Luis Ernesto Rodríguez – How is tecnology impacting on arbitration?)
• Conferences for the 130th Anniversary of the Treaties of Montevideo of 1889, Montevideo, Uruguay, June 2019 (Eugenio Hernández-Bretón and Claudia Madrid Martínez – The recent experience of some South American countries not part of Montevideo Treaties in comparative perspective to them. The case of Venezuela).
• OAS XLVI Course on International Law. Rio de Janeiro, Brazil, August 2019 (Javier Ochoa Muñoz – Effectiveness of foreign judgements and transnational access to justice. Reflections from global governance).
• The Role of Academia in Latin American Private Intertnational Law, Hamburg, Germany, September 2019 (Javier Ochoa Muñoz – The Legacy of Tatiana Maekelt in Venezuela and in the Region).
• XIII ASADIP Annual Conference 2019: Transnational Effectiveness of Law: Recognition and enforcement of foreign judgments, arbitral awards and other acts (Claudia Madrid Martínez – Transnational Efficacy of Foreign Judgments – Flexibilization of Requirements; Eugenio Hernández-Bretón – Transnational Effectiveness of Provisional Measures; and Luis Ernesto Rodríguez – New Singapore Convention and the execution of international agreements resulting from cross-border mediation).

However, this year’s three most important milestones for our academic community occurred on Venezuelan soil. Below we review each one in detail:

1. Celebration of the 20th Anniversary of the Venezuelan PIL Act

The Venezuelan PIL Act, the first autonomous legislative instrument on this subject in the continent, entered into force on February 6, 1999 after a six months vacatio legis (since it was enacted in the Official Gazette of the Republic of Venezuela on August 6, 1998).

This instrument has a long history, as its origins date back to the Draft Law on PIL Norms written by professors Gonzalo Parra-Aranguren, Joaquín Sánchez-Covisa and Roberto Goldschmidt in 1963 and revised in 1965. The Draft Law was rescued in 1995 on the occasion of the First National Meeting of PIL Professors. Its content was updated and finally a new version of the Draft Law was sent by the professors to the Ministry of Justice, which in turn sent it to the Congress, leading to its enactment (for an extensive overview of the history of the Venezuelan PIL Act and its content, see: Hernández-Bretón, Eugenio, Neues venezolanisches Gesetz über das Internationale Privatrecht, IPRax 1999, 194 (Heft 03); Parra-Aranguren, Gonzalo, The Venezuelan Act on Private International Law of 1998, Yearbook of Private International Law, Vol. 1 1999, pp. 103-117; and B. de Maekelt, Tatiana, Das neue venezolanische Gesetz über Internationales Privatrecht, RabelsZ, Bd. 64, H. 2 (Mai 2000), pp. 299-344).

To celebrate the 20th anniversary of the Act, the Private International and Comparative Law Professorship of the Central University of Venezuela and the “Tatiana Maekelt” Institute of Law with the participation of 7 professors and 9 students of the Central University of Venezuela Private International and Comparative Law Master Program.

All the expositions revolved around the Venezuelan PIL Act, covering the topics of the system of sources, vested rights, ordre public, in rem rights, consumption contracts, punitive damages, jurisdiction matters, international labour relations, recognition and enforcement of foreign judgements, transnational provisional measures and the relations between the Venezuelan PIL Act and international arbitration matters. The conference was both opened and closed by the professor Eugenio Hernández-Bretón with two contributions: “The Private International Law Act and the Venezuelan university” and “The ‘secret history’ of the Private International Law Act”.

• Private International and Comparative Law Master Program’s Yearbook

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 launched its website and the first issue of its yearbook. This specialized publication was long overdue, particularly in the Master’s Program context which is focused on educating and training researchers and professors in the areas of Private International Law and Comparative Law with a strong theoretical foundation but with a practical sense of their fields. The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International Law and Comparative Law.

This first issue included 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, and two collaborations by Guillermo Palao Moreno and Carlos Esplugues Mota, professors of Private International Law at the University of Valencia (Spain), that shows the relation of the Program with visiting professors that have truly nurtured the students’ vision of their area of knowledge.

The Call of Papers for the 2020 Edition of the Yearbook is now open. The deadline for the reception of contributions will be April 1st, 2020 and the expected date of publication is May 15th, 2020. All the information is available here. The author guidelines are available here. Scholars from all over the world are invited to contribute to the yearbook.

• Libro Homenaje al Profesor Eugenio Hernández-Bretón

On December 3rd, 2019 was launched a book to pay homage to Professor Eugenio Hernández-Bretón. Its magnitude (4 volumes, 110 articles and 3298) is a mirror of the person honored as we are talking about a highly productive and prolific lawyer, professor and researcher and, at the same time, one of the humblest human beings that can be known. He is truly one of the main reasons why the Venezuelan Private International Law professorship is held up to such a high standard.

The legacy of Professor Hernández-Bretón is recognized all over the work. Professor of Private International Law at the Central University of Venezuela, Catholic University Andrés Bello and Monteávila University (he is also the Dean of the Legal and Political Sciences of the latter), Member of the Venezuelan Political and Social Sciences Academy and its President through the celebration of the Academy’a centenary, the fifth Venezuelan to teach a course at The Hague Academy of International Law and a partner in a major law firm in Venezuela (where he has worked since his law school days) are just some of the highlights of his career.

The contributions collected for this book span the areas of Private International Law, Public International Law, Comparative Law, Arbitration, Foreign Investment, Constitutional Law, Administrative Law, Tax Law, Civil Law, Commercial Law, Labor Law, Procedural Law, Penal Law, General Theory of Law, Law & Economics and Law & Politics. The book closes with six studies on the honored.

The contributions of Private International Law take the entire first volume. It includes the following articles:

• Adriana Dreyzin de Klor – El Derecho internacional privado argentino aplicado a partir del nuevo Código Civil y Comercial (The Argentine Private International Law applied from the new Civil and Commercial Code).
• Alfredo Enrique Hernández Osorio – Objeto, contenido y características del Derecho internacional privado (Purpose, content and characteristics of Private International Law).
• Andrés Carrasquero Stolk – Trabajadores con elevado poder de negociación y Derecho applicable a sus contratos: no se justifica restricción a la autonomía de las partes (Workers with high bargaining power and applicable law to their contracts: no restriction to party autonomy is justified).
• Carlos E. Weffe H. – La norma de conflicto. Notas sobre el método en el Derecho internacional privado y en el Derecho internacional tributario (The conflict norm. Notes on the method in Private International Law and in International Tax Law).
• Cecilia Fresnedo de Aguirre – Acceso al derecho extranjero en materia civil y comercial: cooperación judicial y no judicial (Access to foreign law in civil and commercial matters: judicial and non-judicial cooperation).
• Claudia Madrid Martínez – El rol de las normas imperativas en la contratación internacional contemporánea (The role of peremptory norms in contemporary international contracting).
• Didier Opertti Badán – Reflexiones sobre gobernabilidad y Derecho internacional privado (Reflections on governance and Private International Law).
• Fred Aarons P. – Regulación del internet y el derecho a la protección de datos personales en el ámbito internacional (Internet regulation and the right to personal data protection at international level).
• Gerardo Javier Ulloa Bellorin – Interpretación del contrato: estudio comparativo entre los principios para los contratos comerciales internacionales del UNIDROIT y el derecho venezolano (Contract interpretation: comparative study between the UNIDROIT Principles on International Commercial Contracts and Venezuelan law).
• Gilberto Boutin I. – El recurso de casación en las diversas fuentes del Derecho internacional privado panameño (Cassational complaint in the various sources of Panamanian Private International Law).
• Guillermo Palao Moreno – La competencia judicial internacional en la nueva regulación europea en materia de régimen económico matrimonial y de efectos patrimoniales de las uniones registradas (International jurisdiction in the new European regulation on the economic matrimonial regime and the property effects of registered partnerships).
• Héctor Armando Jaime Martínez – Derecho internacional del trabajo (International Labor Law).
• Javier L. Ochoa Muñoz – El diálogo de las fuentes ¿un aporte del Derecho internacional privado a la teoría general del Derecho? (The dialogue of sources: a contribution from private international law to the general theory of law?
• Jorge Alberto Silva – Contenido de un curso de Derecho internacional regulatorio del proceso (Content of a course on international law regulating the process).
• José Antonio Briceño Laborí – La jurisdicción indirecta en la ley de derecho internacional privado.
• José Antonio Moreno Rodríguez – Los Principios Unidroit en el derecho paraguayo (The UNIDROT Principles in Paraguayan law).
• José Luis Marín Fuentes – ¿Puede existir una amenaza del Derecho uniforme frente al Derecho interno?: ¿podríamos hablar de una guerra anunciada? (Can there be a threat to national law from uniform law? Could we talk about an announced war?).
• Jürgen Samtleben – Cláusulas de jurisdicción y sumisión al foro en América Latina (Jurisdiction and submission clauses in Latin America).
• Lissette Romay Inciarte – Derecho procesal internacional. Proceso con elementos de extranjería (International Procedural Law. Trial with foreign elements).
• María Alejandra Ruíz – El reenvío en el ordenamiento jurídico venezolano (Renvoi in the Venezuelan legal system).
• María Mercedes Albornoz – La Conferencia de La Haya de Derecho Internacional Privado y el Derecho aplicable a los negocios internacionales (The Hague Conference on Private International Law and the applicable Law to International Business).
• María Victoria Márquez Olmos – Reflexiones sobre el tráfico internacional de niños y niñas ante la emigración forzada de venezolanos (Reflections on international child trafficking in the face of forced migration of Venezuelans).
• Mirian Rodríguez Reyes de Mezoa y Claudia Lugo Holmquist – Criterios atributivos de jurisdicción en el sistema venezolano de Derecho internacional privado en materia de títulos valores (Attributive criteria of jurisdiction in the Venezuelan system of Private International Law on securities trading matters).
• Nuria González Martín – Globalización familiar: nuevas estructuras para su estudio (Globalization of the family: new structures for its study).
• Peter Mankowski – A very special type of renvoi in contemporary Private International Law. Article 4 Ley de Derecho Internacional Privado of Venezuela in the light of recent developments.
• Ramón Escovar Alvarado – Régimen aplicable al pago de obligaciones en moneda extranjera (Regime applicable to the payment of obligations in foreign currency).
• Roberto Ruíz Díaz Labrano – El principio de autonomía de la voluntad y las relaciones contractuales (The party autonomy principle and contractual relations).
• Stefan Leible – De la regulación de la parte general del Derecho internacional privado en la Unión Europea (Regulation of the general part of Private International Law in the European Union).
• Symeon c. Symeonides – The Brussels I Regulation and third countries.
• Víctor Gregorio Garrido R. – Las relaciones funcionales entre el forum y el ius en el sistema venezolano de derecho internacional privado (The functional relations between forum and ius in the Venezuelan system of private international law.

As we see, the contributions are not just from Venezuelan scholars, but from important professors and researchers from Latin America, USA and Europe. All of them (as well as those included in the other three volumes) pay due homage to an admirable person by offering new ideas and insights in several areas of law and related sciences.

The book will be available for sale soon. Is a must have publication for anyone interested in Private International Law and Comparative Law.

As reported previously, the ECtHR was asked by the French Cour de cassation for an advisory opinion on the legal parentage of children born through surrogacy arrangement. In its answer, the Court considered that the right to respect for private life (article 8 of ECHR) requires States parties to provide a possibility of recognition of the child’s legal relationship with the intended mother. However, according to the Court, a State is not required, in order to achieve such recognition, to register the child’s birth certificate in its civil status registers. It also declared that adoption can serve as a means of recognizing the parent-child relationship.

The ECtHR’s opinion thus confirms the position reached by French courts: the Cour de cassation accepted to transcribe the birth certificate only when the intended father was also the biological father. Meanwhile, the non-biological parent could adopt the child (See for a confirmation ECtHR, C and E v. France, 12/12/2019 Application n°1462/18 and n°17348/18).

The ECtHR advisory opinion was requested during the trial for a review of a final decision in the Mennesson case. Although it is not compulsory, the Cour de cassation has chosen to comply with its recommendations (Ass. plén. 4 oct. 2019, n°10-19053). Referring to the advisory opinion, the court acknowledged that it had an obligation to provide a possibility to recognize the legal parent-child relationship with respect to the intended mother. According to the Cour de cassation, the mere fact that the child was born of a surrogate mother abroad did not in itself justify the refusal to recognize the filiation with the intended mother mentioned in the child’s birth certificate.

When it comes to the mean by which this recognition has be accomplished, the Cour de cassation recalled that the ECtHR said that the choice fell within the State’s margin of appreciation. Referring to the different means provided under French law to establish filiation, the Court considered that preference should be given to the means that allow the judge to exercise some control over the validity of the legal situation established abroad and to pay attention to the particular situation of the child. In its opinion, adoption is the most suitable way.

However, considering the specific situation of the Mennesson twins who had been involved in legal proceedings for over fifteen years, the Court admitted that neither an adoption nor an apparent status procedure were appropriate as both involve a judicial procedure that would take time. This would prolong the twins’ legal uncertainty regarding their identity and, as a consequence, infringe their right to respect for private life protected by article 8 ECHR. In this particular case, this would not comply with the conditions set by the ECtHR in its advisory opinion: “the procedure laid down by the domestic law to ensure that those means could be implemented promptly and effectively, in accordance with the child’s best interest”.

As a result and given the specific circumstances of the Mennessons’ situation, the Cour de cassation decided that the best means to comply with its obligation to recognize the legal relationship between the child and the intended mother was to transcribe the foreign birth certificate for both parents.

The Cour de cassation’s decision of October 2019 is not only the final act of the Mennesson case, but it also sets a modus operandi for future proceedings regarding legal parentage of children born trough surrogate arrangements: when it comes to the relation between the child and the intended mother, adoption is the most suitable means provided under domestic French law to establish filiation. When such an adoption is neither possible nor appropriate to the situation, judges resort to transcribing the foreign birth certificate mentioning the intended mother. Thus, adoption appears as the principle and transcription as the exception.

Oddly enough, the Court then took the first chance it got to reverse its solution and choose not to follow its own modus operandi.

By two decisions rendered on December 18th 2019 (Cass. Civ. 1ère, 18 déc. 2019, n°18-11815 and 18-12327), the Cour de cassation decided that the intended non-biological father must have its legal relationship with the child recognized too. However, it did not resort to adoption as a suitable means of establishing the legal relationship with the intended parent. Instead, the court held that the foreign birth certificate had to be transcribed for both parents, while no references were made to special circumstances which would have justified resorting to a transcription instead of an adoption or another means of establishing filiation.

The Court used a similar motivation to the one used in 2015 for the transcription of the birth certificate when the intended father is also the biological father. It considered that neither the fact that the child was born from a surrogate mother nor that the birth certificate established abroad mentioned a man as the intended father were obstacles to the transcription of the birth certificate as long that they complied with the admissibility conditions of article 47 of the Civil Code.

But while in 2015 the Court referred to the fact that the certificate “did not contain facts that did not correspond to reality”, which was one of the requirements of article 47, in 2019 this condition is no longer required.

Thus, it seems that the Cour de cassation is no longer reluctant to allow the full transcription of the foreign birth certificate of children born of surrogate arrangements. After years of constant refusal to transcribe the birth certificate for the non-biological parent, and just a few months after the ECtHR advisory opinion accepting adoption as a suitable means to legally recognize the parent-child relationship, this change of view was unexpected.

However, by applying the same treatment to both intended parents, biological and non-biological, this reversal of solution put into the spotlight the publicity function of the transcription into the French civil status register. As the Cour de cassation emphasized, a claim for the transcription of a birth certificate is different from a claim for the recognition or establishment of filiation. The transcription does not prevent later proceedings directed against the child-parent relationship.

But the end is still not near!  On January 24th, during the examination of the highly sensitive Law of Bioethics, the Sénat (the French Parliament’s upper house) adopted an article prohibiting the full transcription of the foreign birth certificates of children born trough surrogate arrangements. This provision is directly meant to “break” the Cour de cassation’s solution of December 18th 2019. The article will be discussed in front of the Assemblée nationale, the lower house, and the outcome of the final vote is uncertain.

The conflict over the legal parentage of children born trough surrogate arrangements is not over yet.  To be continued…

The project on Gender and Private International Law (GaP) at the Hamburg Max Planck Institute, jointly organized by Ivana Isailovic and Ralf Michaels, will end the academic year with a bang! After the inaugural workshop (see Asthma Alouane’s report here) and three successful reading sessions in the fall, there will be a whole day workshop with three themes and six fabulous conveyors who will enable a truly crossdisciplinary event.
A call for applications to take part is here. Note that some travel and accommodation money is available for emergent scholars!

The Law Department at the London School of Economics and Political Science (LSE) is pleased to host a Public Lecture by Visiting Professor Hannah Buxbaum, on ”Reasonableness’ Limits in Extraterritorial Regulation’.

About the topic:
Extraterritorial regulation has become commonplace. States frequently apply their laws to foreign conduct in order to protect local economic interests—and sometimes to advance shared interests, such as the protection of human rights. Are there limits to these exercises of state authority? If so, what is the source and content of those limits? This lecture will investigate the role of “reasonableness” as a limitation on extraterritorial regulation. It will focus in particular on developments in the United States, where the recently adopted Restatement (Fourth) of Foreign Relations Law has reframed the role of international law in limiting the reach of national legislation.

About the speaker:
Professor Hannah Buxbaum is Vice President for International Affairs, the John E. Schiller Chair in Legal Ethics and a Professor of Law at Indiana University. Professor Buxbaum is an expert on cross-border regulatory litigation and extraterritoriality, U.S. securities and competition law, and foreign relations law. 

Thursday 30 January 2020 6:30pm to 8:00pm
Hosted by the LSE Department of Law
Chair: Dr. Jan Kleinheisterkamp (LSE)SUMEET VALRANI LECTURE THEATRE LSE Centre Buildings (CBG.1.01)

The Lecture is open to all; there is no need to register. For more information, please contact Jan Kleinheisterkamp (LSE) or Jacco Bomhoff (LSE).

By Dr Lukas Schmidt (PhD EBS Law School), law clerk (Rechtsreferendar) at the Regional Court of Wiesbaden, Germany

In cross-border insolvencies questions of international jurisdiction might arise either in relation to the opening of an insolvency proceeding as such, or – further down the road – in relation to proceedings deriving from already opened insolvency proceedings. In both cases the European Insolvency Regulation Recast (Regulation 2015/848) provides for answers: According to Article 3 of the Regulation the courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. Article 6 of the Regulation provides that the courts in such Member States shall have jurisdiction as well for actions deriving directly from insolvency proceedings and closely linked with them. Both kind of decisions are to be automatically recognized in all other member states, either through Art. 19 (judgments opening insolvency proceedings) or through Art. 32 (other judgments).

Whereas Article 3 is also to be found in the old EIR (Regulation 1346/2000) as is Article 19 (Article 16) and Article 32 (Article 25), Article 6 is a new provision, however based without any doubt on the ECJ´s settled case law (Seagon, C-339/07 and Schmid, C-382/12) on the old EIR. Still on the old regulation, but with effect also for Art. 6 and 32 EIR, the ECJ has now specified in the case UB v. VA and others (C-493-18) the scope and the exclusive nature of the vis attractiva concursus as (now) laid down in Art. 6 of the EIR.

Some facts are necessary to understand the case:

The insolvent debtor UB, a Dutch citizen, owned an apartment and a property complex in France. Although his assets had been frozen by an English court he and his sister VA signed an acknowledgement of debt by which UB acknowledged owing VA the sum of EUR 500 000 in respect of various loans. UB undertook to repay that sum by 22 August 2017 and subsequently mortgaged, in favour of VA, the apartment and the property complex which he owned in France. In March 2010 he had sold the apartment to Tiger, a company founded by VA. On 10 May 2011 insolvency proceedings were opened against UB in the United Kingdom by the Croydon County Court. The Croydon County Court authorised the insolvency administrator, to bring an action before the courts in France in order to obtain a ruling that the sale of the properties and the mortgages granted over those properties were avoidable under the relevant United Kingdom bankruptcy law provisions. The insolvency administrator made use of this authorisation and succeeded before the French Regional Court and the Court of Appeal. However, the Court of Cassation referred the question of international jurisdiction of the French courts (and its recognition) to the ECJ for a preliminary ruling.

By answering the first two referred questions the ECJ has made clear – rather not surprising – that an action brought by the trustee in bankruptcy appointed by a court of the Member State within the territory of which the insolvency proceedings were opened seeking a declaration that the sale of immovable property situated in another Member State and the mortgage granted over it are ineffective as against the general body of creditors falls within the exclusive jurisdiction of the courts of the first Member State.

The ECJ has pointed out that for determining whether actions derive directly from insolvency proceedings not the procedural context of the action is decisive, but its legal basis (the trustee asked the French courts to rule on a declaration of ineffectiveness rather than on an action to set the transactions aside).

Equally insignificant for international jurisdiction to hear an action for the restitution of immovable property to the bankruptcy estate is where those assets are located. The court underlines that the objective of improving the efficiency and speed of cross-border insolvency proceedings is only consistent with concentrating all the actions directly related to the insolvency proceedings before the courts of the Member State within the territory of which those proceedings were opened.

More intriguing and not yet subject to the ECJ’s case law is the question whether a court can confer its international jurisdiction according to Art. 6 EIR. Eventually, this is what the Croydon Country Court did by authorizing the administrator to bring an action before the French courts in order to obtain a ruling that UB´s deals regarding the French properties were avoidable transactions under the relevant United Kingdom bankruptcy law provisions. The referring Court of Cassation therefore asked in his third question if the UK court’s decision authorizing the insolvency administrator to bring an action before the French courts could be classified as a judgment concerning the course of insolvency proceedings within the meaning of Article 25 (now Article 32), which may, on that basis, be recognised with no further formalities, pursuant to that article.

The court’s answer to this question is in line with its decision in Wiemer & Trachte v. Tadzher (C-296/17) in which it already confirmed the exclusive jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened for set aside actions. Hence, the ECJ refused the UK court’s approach quite quickly stating that Article 25 (now 32) EIR cannot be interpreted in such a way as to call into question the said exclusive nature of the international jurisdiction of the courts of the Member State within the territory of which the insolvency proceedings were opened to hear actions which derive directly from those proceedings and which are closely connected with them. According to the ECJ Article 25 EIR merely allows for the possibility that the courts of a Member State within the territory of which insolvency proceedings have been opened may also hear and determine an action which derives directly from those proceedings and is closely connected with them, whether that be the court which opened the insolvency proceedings under Article 3(1), or another court of that same Member State having territorial and substantive jurisdiction.

The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters will form the object of a conference (in English) scheduled to take place on 23 April 2020 at the Catholic University of Milan.

Speakers include Gilles Cuniberti (University of Luxembourg), Elena D’Alessandro (University of Turin), Francisco Garcimartín Alférez (Autonomous University of Madrid), Marko Jovanovic (University of Belgrade), Antonio Leandro (University of Bari) and Matthias Weller (University of Bonn). Fausto Pocar (University of Milan) will chair the conference while Luca Radicati di Brozolo (Catholic University of Milan) will offer some concluding remarks.

The event benefits from the support of EAPIL, the European Association of Private International Law, and of the Interest Group on Private International Law of SIDI, the Italian Society of International and EU Law.

Attendance is free, but those wishing to attend are required to register by 10 April 2020 through the conference website. In view of the limited seating capacity of the room where the conference will take place, early registration is recommended.

For more information: pietro.franzina@unicatt.it.

Speaker: Professor Alex Mills (Faculty of Laws, UCL)

Chair: Professor Campbell McLachlan QC (Victoria University Wellington)

Date and time: 06 February 2020, 6:00 pm to 7:00 pm

Location: Bentham House, UCL Laws, London, WC1H 0EG, United Kingdom

Abstract

The boundary between public and private legal relations at the international level has become increasingly fluid. State actors engage internationally in private commercial activity, while the privatisation of traditional governmental functions has led to private actors exercising ostensibly public authority, and accelerated the development of a hybridised public-private international investment law. Privatisation as a general phenomenon is much debated, although there has been relatively little focus on the governmental functions which are perhaps of most interest to lawyers – law making, law enforcement, and dispute resolution. This lecture will argue that modern legal developments in the context of private law and cross-border private legal relations can be usefully analysed as two distinct forms of privatisation. First, privatisation of the allocative functions of public and private international law, in respect of both institutional and substantive aspects of regulation. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration.

About the Speaker

Alex Mills is Professor of Public and Private International Law in the Faculty of Laws, University College London. His research encompasses a range of foundational issues across public and private international law, as well as international investment law and commercial arbitration. He has degrees in Philosophy and Law from the University of Sydney, and an LLM and PhD (awarded the Yorke Prize) from the University of Cambridge, where he also taught before joining UCL. His publications include ‘Party Autonomy in Private International Law’ (CUP, 2018), ‘The Confluence of Public and Private International Law’ (CUP, 2009), and (co-authored) ‘Cheshire North and Fawcett’s Private International Law’ (OUP, 2017). He was awarded the American Society of International Law’s Private International Law Prize in 2010, has Directed Studies in Private International Law at the Hague Academy of International Law, and is a member of Blackstone Chambers Academic Advisory Panel and the Editorial Board of the International and Comparative Law Quarterly.

The organisors request you to consult for more information and to register for the event here.

The event is free to attend. The following URL provides full information and registration details: https://www.eventbrite.com/e/the-development-of-private-international-law-in-the-uk-post-brexit-tickets-89779245139

Date: Friday 28th February 2020, 9am-5pm.

Location: Queen Mary University of London, 67-69 Lincoln’s Inn Fields, Room 3.1, London, WC2A 3JB

This is the first of four public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspectives.

About the event

With Brexit having taken place on 31 January 2020 this workshop comes at an ideal time to focus on how private international law in the UK should develop once the implementation period for the UK leaving the EU has finished (which under UK law should be on 31 December 2020). Several eminent speakers will address the issue from four key perspectives:

• Global – Professor Trevor Hartley LSE
• Commonwealth – Professor David McClean, University of Sheffield
• EU/EEA – Michael Wilderspin – Commission Legal Service
• Intra-UK – Dr Kirsty Hood QC, Faculty of Advocates, Scotland

There will be a discussant for each perspective and then plenty of time for questions and comments after each main speaker.

The workshop will also hear from the organisers of this AHRC Research Network:

• Professor Paul Beaumont, University of Stirling
• Dr Mihail Danov, University of Exeter (who will report on his English pilot study)

Furthermore some empirical research findings will be shared by:

• Professor Sophia Tang, University of Newcastle
• Dr Jayne Holliday, University of Stirling

Those interested in advising on the development of this Research Network are welcome to stay for an informal meeting to be held at the end of the workshop between 5.10 and 6pm.

This event is free and open to all but registration is required because spaces are limited.

Professor Paul Beaumont and Dr Mihail Danov would like to thank Queen Mary University of London for their wonderful support by hosting the first three workshops and also AHRC for funding the Research Network.

Future Events

The second and third workshop of this series will be held on Wednesday 1st and Thursday 2nd April 2020 in the same location, Queen Mary University of London, Room 3.1, 67-69 Lincoln’s Inn Field, London and will focus on the future development of private international law in the UK in relation to commercial law (April 1) and family law (April 2).

The final workshop will be held on Thursday 2nd July 2020. This will be held as a joint venture with the Journal of Private International Law and will be held at Reed Smith, Broadgate Tower, 20 Primrose Street, EC2A 2RS

Tickets for these events will be available shortly.

by Matthias Lehmann

Smart contracts and the conflict of laws is a widely discussed topic today (see for instance the post by Giesela Rühl). A new contribution to this debate comes from ISDA, the International Swaps and Derivatives, in collaboration with the Singapore Academy of Law and leading law firms. Also involved is the provider of an existing smart contract platform (Corda), which guarantees the paper’s practical relevance. The analysis focuses on a potential smart derivative contract to be implemented on Corda. 

The authors of the paper take the view that a court in Singapore and the UK would have little difficulties in determining the law governing such a contract – it would simply be the one chosen in the derivatives master agreement. The same goes for the choice of the competent court. In this context, it is important to note that only B2B transactions are considered, with no consumer contracts being involved. The authors also see little risk for the intervention of public policy rules.

Collateralised derivative transactions, which are of utmost practical importance, are more problematic to the extent that the collateral is governed by the lex rei sitae. But the paper also sees a way out here: The collateral could be represented by a token (through so-called tokenisation). Given that tokens have no real geographic location, the law applicable to the token could be determined again by a choice of the parties. 

The paper even suggests an innovative way to avoid the need for enforcement: The parties could agree that the “notary” of the platform must implement any judgment rendered by the chosen court. In this way, the need to apply for cross-border recognition and enforcement in the country in which the platform is established would fall away. 

Whether this proposal works in practice remains to be seen. One may reasonably fret that the platform will not enjoy complete immunity from the country in which it is established. As long as the courts of this country are liberal, there is however little reason for fear. The Singapore High Court has already shown its readiness to extending property protection to the holders of cryptocurrencies. The country could thus provide a safe haven for the operation of a smart derivatives platform, but that does not exclude the continuing power of its courts to intervene and the possible application of national law, e.g. in case of an insolvency of the platform provider.

By Tasha Joseph

Teams are invited to register for the PAX Moot, Asser Round 2020. Registration will be possible until March 30th. However we do advise teams to register as soon as possible. The registration fee is 100 Euros per team.

The moot court competition comprises a written round and oral round. For the written round each team will be required to submit a written assignment as requested by the case (for details, see Rules and Procedures). The oral round will be scheduled as a 2 full-day event on 28-29 May 2020, preceded by a welcoming event for all teams on 27 May (evening). The first day of the competition (general rounds) will be held at the University of Antwerp. On the second day, the participating teams will be invited to the EU Commission in Brussels, where the semi-finals and final rounds will be held.

This year, we have invited Alex Layton QC, a leading specialist in private international law, to draft the case and be a member of the final panel of the oral round.

The organising team hopes that this year’s competition will attract many teams from EU Member States and beyond! Besides the collective prizes for best team and best written submission, one member of the final winning team will be given the “Best Speaker Award” of the moot, and our partner, Herbert Smith Freehills, has graciously invited the next recipient of that award for an internship in its Paris office!

For further information please visit www.paxmoot.com, or email us at info@paxmoot.com.

Sincerely,

PAX Moot Team