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

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

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

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

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

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

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

Rui Dias, Pactos de Jurisdição Societários, Almedina, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Afonso Patrão, Hipoteca e Autonomia Conflitual, Gestlegal, 2018

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

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

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

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

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

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

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

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

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

A PhD thesis on the Private International Law of Sport.

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

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

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

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

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

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

Written by Gustavo Becker*  

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

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

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

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

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

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

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

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

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

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

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

*With contributions from Gustavo Moser

Pourvoi c/ Cour d'appel de Bordeaux, chambre de l'instruction, 29 décembre 2018

Pourvoi c/ Cour d'appel de Paris, chambre 1, pôle 7, 5 avril 2019

Pourvoi c/ Cour d'appel de Rennes, chambre de l'instruction, 22 mars 2019

Tribunal correctionnel de Mamoudzou, 24 avril 2019

Pourvoi c/ Cour d'appel de Grenoble, chambre de l'instruction, 5 avril 2019

Pourvoi c/ Cour d'appel de Paris, chambre 6, pôle 7, 29 novembre 2018