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Written by Yan WANG, Huaqiao University 

It was with great sadness that we received word from her family that Professor GUO Yujun passed away at 1:50 am GMT+8 on 22 April 2023, at the age of 59.

Professor GUO was a distinguished professor of private international law, art law, and cultural heritage law at the Wuhan University International Law Institute in China. She is the Vice-President and Secretary-General of China Society of Private International Law. During her 30 years at Wuhan University, she taught and mentored hundreds of students, inspiring many of them to work under her supervision from the undergraduate to doctoral level.

She published more than 100 academic articles and works in Chinese, English and Japanese with a wide range of domestic and international influence. She had been to Hokkaido University Law Faculty as a Japanese Government (MEXT) Scholarship student from the October 1991 to April 1993. During her academic career, she went to Harvard University, Osnabrück University, and Max Planck Institute for Comparative and International Private Law as a visiting scholar.

Professor GUO earned the affection from her family, friends, colleagues, and students. A list of her representative private international law publications can be found here.

 

This week a conference took place to honor Professor Linda Silberman at New York University (NYU). She is currently the Clarence D. Ashley Professor of Law Emerita at NYU. The full program is available here.

Anyone who has had the privilege of taking Linda Silberman’s classes would agree with me that she is an outstanding scholar and professor. Someone who takes the art of teaching to another level, a very kind and brilliant person who truly enjoys building the legal minds of the lawyers and academics of the future. In my view, nothing in the academic world compares to taking the “international litigation” class with her. Thus, this is more than a well-deserved event.

The conference flyer indicates the following:

“When Professor Linda Silberman came to NYU in 1971, she was the first woman hired for the NYU Law tenure-track faculty. In 1977, she became the first tenured female professor on the NYU Law faculty. Although she took emerita status in September 2022, she continues as the Co-Director of the NYU Center on Transnational Litigation, Arbitration, and Commercial Law. For over 30 years, Professor Silberman taught hundreds of first-year students Civil Procedure and she is the co-author of a leading Civil Procedure casebook that starts with her name. Throughout her career, Professor Silberman also taught Conflict of Laws and in the past twenty-five years branched out to teach Comparative Procedure, Transnational Litigation, and International Arbitration. Professor Silberman is a prolific scholar and her articles have been cited by numerous courts in the United States, including the Supreme Court, and also by foreign courts. Professor Silberman has been active in the American Law Institute as an Advisor on various ALI projects, including serving as a co-Reporter on a project on the recognition of foreign country judgments. She has also been a member of numerous U.S. State Department delegations to the Hague Conference on Private International Law. In 2021, Professor Silberman gave the general course on Private International Law at the Hague Academy of International Law.”

Below I include some of the publications of Professor Silberman (an exhaustive list is available here):

Books

• Civil Procedure: Theory and Practice (Wolters Kluwer 6th ed., 2022; 5th ed., 2017; 4th ed., 2013; 3d ed., 2009; 2d ed., 2006; 1st ed., 2001) (with Allan R. Stein, Tobias Barrington Wolff and Aaron D. Simowitz)
• Recognition and Enforcement of Foreign Judgments (Edward Elgar Publishing, 2017) (ed. with Franco Ferrari)
• Civil Litigation in Comparative Context (West Academic Publishing 2d ed., 2017; 1st ed., 2007) (with Oscar G. Chase, Helen Hershkoff, John Sorabji, Rolf Stürner et al.)
• Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute (American Law Institute, 2006) (with Andreas F. Lowenfeld)
• The Hague Convention on Jurisdiction and Judgments: Records of the Conference held at New York University School of Law on the Proposed Convention (Juris, 2001) (ed. with Andreas F. Lowenfeld)

Articles

• “Nonparty Jurisdiction,” 55 Vand. J. Transnat’l L. 433 (2022) (with Aaron D. Simowitz)
• “Introductory Note to Monasky v. Taglieri (U.S. Sup. Ct.),” 59 Int’l Legal Materials 873 (2020)
• “Misappropriation on a Global Scale: Extraterritoriality and Applicable Law in Transborder Trade Secrecy Cases,” 8 Cybaris Intell. Prop. L. Rev. 265 (2018) (with Rochelle C. Dreyfuss)
• “Lessons for the USA from the Hague Principles,” 22 Uniform L. Rev. 422 (2017)
• “The Transnational Case in Conflict of Laws: Two Suggestions for the New Restatement Third of Conflict of Laws—Judicial Jurisdiction over Foreign Defendants and Party Autonomy in International Contracts,” 27 Duke J. Compar. & Int’l L. 405 (2017) (with Nathan D. Yaffe)
• “The US Approach to Recognition and Enforcement of Awards After Set-Asides: The Impact of the Pemex Decision,” 40 Fordham Int’l L.J. 799 (2017) (with Nathan Yaffe)
• “Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?” 91 N.Y.U. L. Rev. 344 (2016)(with Aaron Simowitz)
• “The End of Another Era: Reflections on Daimler and Its Implications for Judicial Jurisdiction in the United States,” 19 Lewis & Clark L. Rev. 675 (2015)
• “Limits to Party Autonomy at the Post-Award Stage,” in Limits to Party Autonomy in International Commercial Arbitration (Juris 2016)(with Maxi Scherer)
• “United States Supreme Court Hague Abduction Decisions: Developing a Global Jurisprudence,” 9 J. Comp. L. 49 (2014);
• “The Need for a Federal Statutory Approach to the Recognition and Enforcement of Foreign County Judgments,” 26th Sokol Colloquium (2014)
• “Civil Procedure Meets International Arbitration: A Tribute to Hans Smit,” 23 Am Rev. Int. Arb. 439 (2012)
• “Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective,” 63 S.Ct. L. Rev. 591 (2011)
• “Morrison v. National Australia Bank: Implications for Global Securities Class Actions,” 12 YB. Priv. Int. L. (2011 “The Role of Choice-of-Law in National Class Actions,” 156 U. Pa. L. Rev. 2001 (2008).

 

* photo credited to NYU

For quite a long time, what China had been doing for its interregional private laws was modelling their solutions on international conventions such as the Hague Service Convention, the Hague Evidence Convention and the Hague Judgments Convention etc. Normally they eventually got a slimmed-down Arrangement for the corresponding matter. This was quite different from what happed in the EU where the enhanced versions of the Hague Conventions could be seen and something extra could even be achieved. Also different from the EU where the ECJ could give answers when many questions at national law level were elevated and tested in the context of Regulations at the EU level, there has been no common court for interregional instruments within China so far. Apart from those bilateral Arrangements, all regions within China are basically treating one another as a ‘foreign country’ in terms of private laws.

The situation is, however, changing, at least from the Mainland side. Yesterday, I was invited to attend a conference which was under the support of the Supreme People’s Court of PRC and organized by the High Court of Guangdong Province that is geographically the closest one to Hong Kong and Macau. The purpose of the conference was to read the Draft Interpretation prepared by a research team of the Guangdong High Court and to be formally adopted and issued by the Supreme People’s Court later on. This Draft Interpretation is, again, an unilateral act of the Mainland China who wants to better its civil procedural rules regarding cases related to Hong Kong and Macau (possibly also Taiwan included). Indeed, different from the past experience for the past decades where inter-regional private cases were generally handled in analogy with foreign-related ones, the Mainland China is now trying to differentiate them. It wants to have more advanced and enhanced rules for interregional private cases. Keep an eye on the development of Chinese interregional private laws ……

Lex & Forum Law Review and Sakkoulas Publications SA are organizing an online conference on:

The International Dimension of Intellectual Property Disputes

PRESIDING:

Prof. Lia Athanasiou, University of Athens

PRESENTERS:

• Prof. Dan Svantesson, Faculty of Law, Bond University/Australia,

‘Intellectual Property disputes and PIL: A Swedish and Australian perspective’

• Prof. Dr. Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, William S. Boyd School of Law, University of Nevada, Las Vegas, Stanford University

‘The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies’

• Prof. Dr. Gerald Spindler, Faculty of Law, Georg-August Universität Göttingen

‘EU Digital Services Act und EU Digital Markets Act and its impact on private international law’

• Dr. Ioannis Revolidis, University of Malta,

‘International jurisdiction on online copyright infringements’

More information available here

Commission / Pologne (Indépendance et vie privée des juges)
Principes du droit communautaire
État de droit : le montant de l’astreinte journalière imposée à la Pologne est réduit d’un million à 500 000 euros

FAMIMOVE is an international project co-funded by the European Commission under the JUST-2022-JCOO program. The FAMIMOVE website is now live and may be consulted by clicking here.

The project  aims to improve the protection of migrant children and families by bringing actual practice more in line with EU goals and values, such as the protection of fundamental rights and best interests of the child. It also seeks to provide more effectiveness to EU objectives through a better coordination of instruments in overlapping fields, such as Regulations in private international law in family law matters and migration law rules. The duration of the project is 24 months (from 1 January 2023 to 31 December 2024). For more information, click here.

The Consortium is coordinated by Prof. Marta Pertegás Sender (University of Maastricht) and is comprised of the following partners: Prof. Bettina Heiderhoff (University of Münster), Prof. Costanza Honorati (University of Milano-Bicocca); Prof. Fabienne Jault (University of Versailles Saint-Quentin-en-Yvelines), Prof. Ulf Maunsbach (Lund University), Prof. Orsolya Szeibert (Eötvös Loránd University) and Prof. Jinske Verhellen (Ghent University). Each Partner is further supported by colleagues with expertise in  cross-cutting fields, thus bringing together experts who are representatives from a large range of European regions. More information is available here.

FAMIMOVE (actually, FAMIMOVE 2.0) is a spin-off of an earlier project with the same name, which was very successful and resulted in two insightful documents published by the European Parliament: Children on the Move: A Private International Law Perspective and Private International Law in a Context of Increasing International Mobility: Challenges and Potential.

Any new developments on FAMIMOVE will be published here – stay tuned!

 

Two relatively new Scandinavian free online law library projects ease the accessibility of older legal writings, which opens new possibilities for researchers. First, the Danish law library project jurabog was launched. Being inspired by that, the similar Swedish project juridikbok.se followed. The two projects are both free and their respective focus are to collect older legal writings and make them available online.

Whereas the Danish project aims at collecting Danish legal writing, the Swedish project collects Swedish legal writings. The collections are general, but content several books on private international law. Even if most of them are in either Danish or Swedish, one can find private international law books written in English.

On the Danish website, one can for instance find Ole Lando’s General Course of 1985 for the Hague Academy (Recueil des Cours) which had the title The Conflict of Laws of Contracts – General Principles. Also, the general course in the same series from 1958 on The Scandinavian Conventions on Private International Law by Allan Philip is found on the website.

The Swedish library contains e.g. Michael Bogdan’s dissertation Expropriation in Private International Law (1975) as well as Stig Strömholm’s dissertation Torts in the conflict of laws (1961).

In the contemporary digital reality, the free Scandinavian law library projects seem to be pioneering by offering an alternative to the paywalls that often delay and hinder research.

La rédaction de Dalloz actualité fait une petite pause pendant les vacances de printemps.

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As announced on this blog and on the blog of the EAPIL, a series of webinar has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal.

This is just a quick reminder for those who also read the EAPIL blog – and a new announcement for those who do not – that registration is open through the form available here.

 

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: Surrogacy in comparative perspective (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

La finale du concours « European Law Moot Court » aura lieu demain, le 21 avril, à la Cour de justice de l'Union européenne à Luxembourg

Judge François Ancel (Cour de cassation) and Professor Gustavo Cerqueira (University of Nice) are the editors of a book on the Respective Roles of (French) Courts and Parties in the Application of Choice of Law Rules (L’office du juge et la règle de conflit de lois).

The book collects the proceedings of a conference held at the Cour de cassation in May 2021.

A summary of the conference is available on the website of the court in French and in English.

Intervyuirasht organ na DAB pri MS (Femmes victimes de violences domestiques)
Espace de liberté, sécurité et justice
Crime d’honneur, mariage forcé et violence domestique : l’avocat général Richard de la Tour précise les conditions dans lesquelles une ressortissante de pays tiers peut bénéficier de la protection internationale

Blue Air Aviation
Liberté d'établissement
La diffusion d’une œuvre musicale à des fins de musique d’ambiance dans un moyen de transport de passagers constitue une communication au public au sens du droit de l’Union

Autorità Garante della Concorrenza e del Mercato (Commune de Ginosa)
Liberté d'établissement
Les concessions autorisant l’exploitation des plages italiennes ne peuvent pas être renouvelées automatiquement mais doivent faire l’objet d’une procédure de sélection impartiale et transparente

The Commentary on the Brussels II ter Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso-Luis Calvo Caravaca, María-Asunción Cebrían Salvat, Gilles Cuniberti, Stefano Dominelli, Agnieszka Frąckowiak-Adamska, Estelle Gallant, Thomas Garber, Oliver Knöfel, Vesna Lazić, Luís Pietro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Maire Ní Shúilleabháin, Marta Pertegás Sender, Walter Pintens, Ilaria Queirolo, Dimitrios K. Stamatiadis and Spyros Tsantinis.

See here for further information.

La Cour européenne des droits de l’homme continue son incursion en droit de la concurrence par le prisme des droits fondamentaux. Elle s’est prononcée sur des visites domiciliaires et saisies par l’Autorité de la concurrence et la compatibilité de l’absence de contrôle a posteriori avec l’article 8 de la Convention, laissant de côté la question substantielle des modalités de réalisation de telles opérations.

Sur la boutique Dalloz Droit de la concurrence Voir la boutique Dalloz

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The University of Urbino will host on 17 May 2023 a conference on the international aspects of the Digital Services Act (DSA) in a hybrid way.

The speakers include Marie-Elodie Ancel, Basile Darmois, Federico Ferri, Valère Ndior, Edoardo Alberto Rossi, Massimo Rubechi and Maria Isabel Torres Cazorla.

For registration and the full programme, see here.

For further info, write an email at edoardo.rossi@uniurb.it.

The author of this post is Verena Wodniansky-Wildenfeld, University of Vienna.

Since the introduction of the Rome II Regulation, the question whether rules of conduct of non-governmental organisations are to be taken into account in the context of Article 17 of that Regulation has been the subject of extensive discussion.

A recent decision of the Austrian Supreme Court dealt with the impact of the FIS Rules, which are drawn up by the international ski federation (FIS) and contain guidelines to assist in the promotion of skiing and snowboarding (I.1. FIS rules), with regard to Article 17 Rome II. The court held that the FIS Rules can generally fall within the “rules of safety and conduct” defined in Article 17 Rome II. However, this is only the case if the rules at the place of the event causing the damage are not identical to the rules of safety and conduct of the applicable law. Further examination was therefore not necessary, as the FIS rules are used to determine the duty of care in both states: the state where the harmful act was committed and the state of the applicable law. Nevertheless, the ruling contributes to provide clarity on the interpretation of “rules of safety and conduct” and enrich the case law on Article 17 Rome II.

Facts of the case

The case at hand concerned the collision of two skiers domiciled in the Netherlands in an Austrian ski resort. Prior to the accident, the plaintiff was on the slope above the defendant when the defendant crossed the plaintiff’s lane without turning to see if any skiers are coming from above. In the following crash, both parties were injured.

Judgment

The Austrian Supreme Court first found the application of Dutch substantive law under Article 4(2) Rome II to be undebated. Article 4(2) Rome II provides an exception to the law of the place where the damage occurred, as appointed in Article 4(1) Rome II, in favour of the law of the common habitual residence of the person claimed to be liable and the person sustaining the damage. As the place where the damage occurred and the place where the harmful act was committed normally coincide in skiing accidents, the issue of the FIS rules as foreign rules of safety and conduct arises mainly in cases governed by Article 4(2) Rome II.

The further examination was therefore limited to the assessment of the FIS Rules, as the defendant’s conduct could have constituted a breach of Rule 1. According to this rule every skier must behave in a way not to endanger or harm others. The Court holds that the question whether the conduct in question results in liability is governed exclusively by the lex causae determined in Article 4(2), and thus by Austrian law. However, the court confirms the FIS Rules can be taken into account as a rule of conduct and standard of due care. As both Austrian and Dutch law measure the conduct of skiers against the FIS Rules, the latter are in any case taken into account by the application of Dutch law. Thus, no conduct rules foreign to the applicable law needed to be taken into account and their consideration under Article 17 Rome II was superfluous.

Assessment

Although ultimately the “rules of safety and conduct” at the place of the harmful event were not taken into account, the Supreme Court thus seems to have clarified that for the required standard of care, also norms established by non-state organisations are to be considered under Article 17 Rome II.

While mandatory rules, e.g. of formalised and customary law, distinguishing legal from illegal conduct, are evidently encompassed by Article 17 Rome II, it is debated whether purely private safety and conduct rules can also be considered as “rules” in the understanding of Article 17 Rome II. “Soft law”, such as the FIS Rules of Conduct, is the most prominent example of such standards.

The question of the relevance of the FIS rules to cross-border situations in the context of Rome II has been addressed by other courts before. In a similar case, the Higher Regional Court Munich had assumed that the FIS Rules were to be taken into account as customary law at the place of the harmful event (Austria). However, according to Austrian case law, the FIS Rules cannot be considered customary law in Austria. Moreover, in Austria as in the Netherlands, the FIS Rules of Conduct were never legally codified or given legal force in the form of a decree. The situation, however, differs in European countries. In Italy, for example, the conduct on the ski slopes is prescribed by special law through the third section of the law on safety in skiing (Law No. 363 of 24 December 2003). Also, in Slovenia the obligatory conduct of skiers is regulated by special law (Act No. 110/2002 of 18 December 2002).

There is also controversy in literature as to what significance rules of non-state actors have within the framework of Article 17 Rome II. The key question is whether Article 17 Rome II requires a binding nature of the rule or whether purely factual obedience of rules set by private actors is sufficient.  According to the “local data theory”, a very broad approach is to be taken. As even state law is only taken into account as a matter of fact, a differentiation between the legally or factually binding nature between statutory law and “soft law” created by non-state organizations cannot be justified (Calliess/Renner/v. Hein Art 17, para. 19; Dicey/Morris/Collins CoL 34-069).

A second theory seeks to distinguish between two aspects: The question whether and to what extent non-legal standards of conduct are relevant for the liability shall be assessed exclusively in accordance with the lex causae. Insofar as the lex cause takes recourse to soft law when determining liability, the standards of conduct at the place of the event giving rise to the liability must then be taken into account on a second level (BeckOGK/Maultzsch Art 17 Rn 21; NK-BGB/Lehmann Art 17 para 34).

A third theory considers it neither possible nor necessary for the FIS Rules to be taken into account under private international law per se. Nevertheless, on the level of substantive law, they can serve as an interpretative aid for the liability if the national tort law system provides a general clause for the assessment of the conduct of the tortfeasor (Diehl IPRax 2018, 374)

With the present decision, the Austrian court has not explicitly taken a position on the controversy raised in the literature. Up until now it seemed that the Supreme Court would follow the second theory. In a purely domestic decision, the Supreme Court stated that under Austrian Civil Law, considerable importance to the FIS rules is to be attributed, but only “in applying the general principle that everyone must behave in such a way as not to endanger others.” However, the fact that the Supreme Court does not mention the Dutch sweeping clause and recourse to soft law when determining liability, which would be a necessary precondition for the applicability of the FIS Rules under the second theory, seems contradictory to this approach. The reference in the case at hand to the FIS Rules for assessing the duty of care with regard to Article 17 Rome II without further explanation is therefore rather surprising. For the final act of the ongoing debate, a decision of the CJEU will nevertheless have to be awaited. In any way, whether the FIS Rules are considered under Dutch Law cannot, contrary to the Supreme Court’s judgment, matter in their application under Article 17 Rome II. 

Bien que la Cour européenne des droits de l’homme interdise aux juridictions d’exprimer un avis préalable ou une idée préconçue sur le fond lors de questions de procédure ou de compétence, une juridiction nationale qui se prononce sur la matérialité des faits dans le cadre d’un recours préjudiciel ne viole pas le droit à la présomption d’innocence ni le droit à un tribunal impartial dès lors qu’elle entend appliquer les garanties procédurales prévues par le droit national pour les jugements sur le fond.

Sur la boutique Dalloz Droit et pratique de l’instruction préparatoire 2022/23 Voir la boutique Dalloz

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Alors que la Cour européenne tenait audience le 29 mars dernier dans deux affaires concernant l’urgence climatique, dont Carême c/ France, un tour d’horizon s’impose sur les enjeux conventionnels des requêtes en cours d’examen.

Sur la boutique Dalloz Code de l’environnement 2023, annoté & commenté Voir la boutique Dalloz

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