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American Society of International Law’s Dispute Resolution Interest Group will be presenting its 2018-2019 U.S. Supreme Court “International Law” Year in Review. This panel discussion will review decisions from the U.S. Supreme Court’s 2018-2019 term involving issues relating to international law and/or international relations. The discussion will include an in-depth look at the reasoning behind the decisions Republic of Sudan v. Harrison and Jam v. International Finance Corp., and will look at the prospects for several Foreign Sovereign Immunities Act cases granted or pending certiorari for the upcoming 2019-2020 term, among others. Our panelists, comprising some of the leading experts on international law issues, will also explore what these decisions tell us about the current Supreme Court’s views on matters of international interest, as well as the influence the newly appointed Justice Kavanaugh has had on these issues.

Please join us for a lively and interactive discussion and debate.

DETAILS:

Thursday, September 12
6-8pm
ASIL Tillar House, Washington DC

Registration is available here

PANELISTS

Lori Damrosch, Hamilton Fish Professor of International Law and Diplomacy, Columbia Law School

Matthew McGill, Partner, Gibson Dunn LLP

David Stewart, Professor of Law, Georgetown University Law Center

Moderated by

Caroline Edsall Littleton, Jones Day

Jennifer Permesly, Skadden Arps Slate Meagher & Flom LLP

On January 4, 2020, the Conflict of Laws Section of the American Association of Law Schools (AALS) will host a panel at the AALS Annual Meeting in Washington, DC.   Registration is available here.

Sessions Information
January 4, 2020

10:30 am – 12:15 pm

Room: Maryland Suite B
Floor: Lobby Level
Hotel: Washington Marriott Wardman Park Hotel

Description: The biggest development in conflict of laws in the last 100 years is the move to party autonomy. The panel will discuss issues relating to the interpretation and enforcement of choice-of-law clauses, forum selection clauses, and arbitration clauses. It will also discuss the reasons why parties may choose to arbitrate or litigate future disputes at the time of contracting.

Speakers

Moderator: John F. Coyle, University of North Carolina School of Law

Speaker: Pamela Bookman, Fordham Law School

Speaker: Christopher R. Drahozal, University of Kansas School of Law

Speaker: Laura E. Little, Temple University, James E. Beasley School of Law

Speaker: Julian Nyarko, Stanford Law School

In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

1. If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

2. If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

3. If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

4. If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

5. If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Le 7 août 2019 la chambre criminelle a rendu deux arrêts intéressants relatifs au déroulement de la procédure d’extradition devant la chambre de l’instruction.

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Le 24 juillet 2019 la chambre criminelle a rendu deux intéressants arrêts relatifs au mandat d’arrêt européen.

en lire plus

Pourvoi c/ Cour d'appel de Riom, 2e chambre civile, 5 mars 2019

Pourvoi c/ Cour d'appel de Riom, 2e chambre civile, 5 mars 2019

Arthur Eyffinger, legal historian and former Head Librarian of the International Court of Justice, recently published T.M.C. Asser (1838–1913): In Quest of Liberty, Justice, and Peace (Brill 2019). As the name suggests, the two-volume biography retraces the life of Tobias Asser, who famously won the Nobel Peace Prize in 1911 for his contributions to the field of private international law, including the establishment of the Hague Conference on Private International Law, the initiative to found the Institut de Droit International, and his role in the subsequent creation of the Hague Academy of International Law.

A copy of the book was presented to the great-grandson of Tobias Asser, Professor Daan Asser, yesterday in the context of a mini-symposium co-hosted by the Royal Netherlands Society of International Law (KNVIR) and the Institut de Droit International, which is currently holding its 79th session in the Peace Palace in the Hague. The symposium featured contributions by Marta Pertegás Sender, Janne Nijman, Jean Salmon, Hans van Loon, and the author, Arthur Eyffinger, himself.

Given that the UK Supreme Court has given permission to hear a third appeal concerning collective actions – two of which have direct cross-border relevance (Merricks v MasterCard Inc [2019] EWCA Civ 674; Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191; and Wm Morrisons Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339) – it may be timely to also reflect on the development of border-crossing collective actions considered in a European context.

To this end, Csongor István Nagy (of University of Szeged’s Faculty of Law) has just published an interesting open access monograph with Springer on collective actions in Europe. It is called Collective Actions in Europe – A Comparative, Economic and Transsystemic Analysis and is available at https://ssrn.com/abstract=3440551 .

Assurances - Règles générales

Procédures civiles d'exécution

Officiers publics et ministériels (tarifs)

Many thanks Sofja Goldstein for alerting me a while back to the Hoge Raad’s decision to refer to the CJEU and what is now known to be Case C-186/19. The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. As Sofja reports, in 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

SHAPE and JFCB from their side seized the Dutch courts for interim relief, seeking (i) to lift the attachment, and (ii) to prohibit Supreme from attaching the escrow account in the future.

The Supreme Court acknowledges the Dutch Courts’ principle jurisdiction at the early stages of the procedure on the basis of Article 35’s rule concerning provisional measures, yet at this further stage of the proceedings now feels duty-bound firstly under Article 27 of Brussels Ia to consider whether Article 24 paragraph 5 applies (Belgium being the place of enforcement of any attachment should it be upheld); further and principally, whether the Brussels I a Regulation applies at all given that SHAPE and NATO invoke their immunity (it is in my view unlikely that the invocation or not of an immunity defence may determine the triggering or not of Brussels Ia), this immunity interestingly being the result of a Treaty not between The Netherlands and NATO but rather resulting from the headquarter agreement between NATO and Belgium.

An interesting example of public /private international law overlap.

Geert.

Like quite a few of the Opinions and Judgment in my recent blog posts, Szpunar AG’s recent Opinion in C-555/18 KHK v BAC (*mutters his usual rant on the idiocy of the parties’ anonimisation rule*) was issued just before many of us took a short summer break. Carlos Santaló Gorisseemingly did not and I am happy to refer in the main to his analysis.

The Advocate General refers first of all to the infamous decision in 125/79 Denilauler, excluding ex parte provisional or protective measures from enforcement under the then Brussels Convention. The European Account Preservation Order Regulation 655/2014 was intended to fix this particular chink in the European civil procedure armour. Which national decisions fit with its definition of ‘authentic instrument’ is the subject of current proceedings, and Szpunar AG as Carlos reports takes a balanced approach between facilitating free movement without assisting abuse.

Of note is that the EAPO Regulation hitherto has received very little practice. Clarification of its precise scope is crucial.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.15, Heading 2.2.16.1.1.

For those of you who are interested in the case Monasky v. Taglieri currently before the US Supreme Court, please note that an extremely useful amicus curiae brief was filed this week by Reunite International Child Abduction Centre (as stated on its website Reunite is the “leading UK charity specialising in parental child abduction and the movement of children across international borders”).  This brief will certainly help put things into perspective with regard to the weight that should be given to parental intent when determining the habitual residence of the child under the Hague Child Abduction Convention (but it only answers the second question presented).

Other amicus curiae briefs have also been filed this week (incl. the one for the United States, which addresses accurately, in my view, the first question presented with regard to the standard of review of the district court’s determination of habitual residence; such determinations should be reviewed on appeal for clear error – and not de novo, which is more burdensome-). This reasoning is in line with the Balev case of the Canadian Supreme Court (2018 SCC 16, 20 April 2018).

For more information on this case, see my previous post here.

I include some excerpts of the brief of Reunite below (p. 18):

“It can therefore be seen that, while still important, parental intention is not necessarily given greater weight in English and Welsh law than any other factor when determining a child’s habitual residence. Further, the court evaluates parental intention in relation to the nature of the child’s stay in the country in question (by way of example, whether it was for a holiday, or some other temporary purpose, or whether it was intended to be for a longer duration).

“In that way, parental intention is treated as one factor within a broad factual enquiry, rather than as separate and, perhaps, determinative enquiry that precedes or is separate from an evaluation of the child’s circumstances. Within such an enquiry, the factors that are relevant to the habitual residence determination will vary in terms of the weight that they are given depending on the circumstances of the case. Lord Wilson’s judgment in Re B provides an example of how those facts might be weighed up against each other.”

Succession