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The 2018 Asia Pacific Colloquium of the Journal of Private International Law (JPIL) will be held on Monday 10 December 2018 at the Law Faculty of Doshisha University in Kyoto, Japan.

Scholars, researchers, legal practitioners and other interested persons are now invited to submit abstracts in English of paper proposals for presentation at the Colloquium.  While proposals for papers to be presented at the Colloquium may be on any topic, they must have as their primary focus the private international law aspects of the chosen topic.  Recent PhD graduates in the Asia Pacific region are especially invited to submit proposals.

The Colloquium will be in the form of an all-day roundtable discussion conducted in English.  Persons whose papers have been chosen will deliver their presentations in turn.  Each presentation will run for 20 minutes and be followed by a discussion of 20 minutes in which all participants in the Colloquium (including members of the JPIL’s Editorial Board and specially-invited private international law academics from the Asia-Pacific region) will comment on the presentation. The objective of the Colloquium will be to assist presenters to improve their papers with a view to eventual publication, possibly in the JPIL subject to acceptance by its Editorial Board.

Abstracts are to be submitted by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 July 2018.  Abstracts should be accompanied by cvs and contact details of the person making the submission.  Persons whose abstracts have been accepted will be informed accordingly by 15 July 2018.  Such persons will be expected to submit their full papers in PDF format by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 October 2018.  Papers should be in English and between 4,000 and 10,000 words in length (inclusive of footnotes).  Accepted papers will be circulated in advance among those taking part in the Colloquium.  Persons who have not heard from the Colloquium organisers by 15 July 2018 should assume that their submissions have not been accepted.

Persons selected to make presentations should note that they will be wholly responsible for their travel to and from, and their accommodation in, Kyoto for the Colloquium.  Neither the JPIL nor the Faculty of Law Doshisha University are in a position to provide any funding in respect of a selected person’s expenses.  Further inquiries may be addressed to Professor Naoshi Takasugi at ntakasug@mail.doshisha.ac.jp.

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Thursday 21 and Friday 22 June 2018 the Summer School in International Financial Law. Participation is free of charge, but registration is compulsory at Eventbrite. The sessions will be held in English with simultaneous translation into Italian. Here is the programme (available for download):

Thursday 21 June 2018 – 14h00

14h30 Welcome Address

• Giuseppe De Luca, Deputy-Rector, University of Milan
• Ilaria Viarengo, Director of the Department of International, Legal, Historical and Political Studies

15h00 Cross-Border Company Matters

Chair: Manlio Frigo, University of Milan

• The EU Proposal for a Directive on Cross-Border Conversions, Mergers and Divisions (Bartlomiej Kurcz, DG Justice and Consumers, European Commission)
• A German Perspective (Leonhard Hübner, University of Heidelberg)
• An Italian Private International Law Perspective (Francesca C. Villata, University of Milan)
• Italian and Comparative Corporate Law Perspectives (Marco Ventoruzzo, Bocconi University)

General discussion (with the participation of Maria Vittoria Fuoco, Department on the Functioning of the Judiciary, Italian Ministry of Justice)

– – –

Thursday 21 June 2018 – 17h30

17h30 Taking Security over Shares and Other Financial Securities

Chair: Giovanna Adinolfi, University of Milan

• Investors Rights in Securities and Shareholdings in the Post-CSDR Era (Christina Tarnanidou, University of Athens of Economics and Business, Rokas, Athens)
• Securities settlement through T2S (Aranzazu Ullivarri Royuela, BME Post Trade Services, Madrid)

General discussion

– – –

Friday 22 June 2018 – 9h30

9h30 Financial Collaterals and Bonds

Chair: Giovanna Adinolfi, University of Milan

• Cross-Border Financial Collateral within the Eurosystem (Klaus Loeber, Market Infrastructures and Payments, European Central Bank)
• Bonds Issuance (Matthias Lehmann, Rheinischen Friedrich-Wilhelms-Universität Bonn)

General discussion

10h45 – 13h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Francesca C. Villata, University of Milan

• Presentation of the Proposal (Maria Vilar-Badia, DG Justice and Consumers, European Commission)
• Factoring (Christine Van Gallebaert, Université Paris 2 Panthéon-Assas, Jones Day, Paris)
• Collateralization (Joanna Perkins, Financial Markets Law Committee, London)

General discussion

– – –

Friday 22 June 2018 – 14h00

14h00 – 17h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Stefania Bariatti, University of Milan

• Securitization (Gilles Cuniberti, University of Luxembourg)
• Selected practical issues (Francisco Garcimartín Alférez, Universidad Autónoma de Madrid, Linklaters, Madrid)
• The Relationship with the EU Regulation on Cross-Border Insolvency (Stefania Bariatti, University of Milan, Chiomenti, Milan)
• The Relationship with the EU Rules on the Cross-Border Insolvency of Banks and Insurances (Matthias Haentjens, University of Leiden)

General discussion – Closing Remarks

(Many thanks to Prof. Francesca Villata for the tip-off)

I post this item mostly as a point of reference for discussions on mandatory law, employment disputes, and the use of arbitral tribunals to circumvent limitations in domestic litigation.

In FC Black Stars Basel 4A_7/2018, the Swiss Supreme Court held in April that mandatory Swiss law on limited arbitrability of domestic employment disputes, cannot be circumvented by submitting dispute to international arbitration. Schellenberg Witmer have succinct analysis here.

Note in particular 2.3.3:

Vor diesem Hintergrund erscheint es zur Vermeidung von Wertungswidersprüchen folgerichtig, den in Art. 341 OR angeordneten Schutz der sozial schwächeren Partei im Rahmen der Beurteilung der freien Verfügbarkeit nach Art. 354 ZPOinsoweit in das Prozessrecht hinein zu verlängern, als Schiedsvereinbarungen nicht uneingeschränkt zugelassen werden

Geert.

 

En application de l’article 36 de l’accord de coopération en matière de justice du 24 avril 1961 liant la France et le Burkina Faso, une décision prononcée dans ce pays ne peut pas obtenir l’exequatur en France dès lors que le contrat litigieux comportait une clause attributive de juridiction désignant un tribunal français et que le juge burkinabé était donc dépourvu de compétence indirecte.

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Erasmus School of Law (under the ERC project Building EU Civil Justice) in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University) are hosting the seminar ‘Innovating International Business Courts: A European Outlook’ that will take place in Rotterdam on 10 July 2018.

In relation thereto Erasmus Law Review invites submissions for its upcoming special issue on International Business Courts – a European and Global Perspective on topics relating to court specialization, specifically relating to the development of international business courts in Europe and beyond, and focusing on justice innovation and their relevance for access to justice and the judicial system, including the challenges they may pose for judicial administration, litigants and other stakeholders. Contributions can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches are especially encouraged. The issue will also include papers focusing on the Netherlands, the United Kingdom (England and Wales), France, Germany, and Belgium, and deriving from the seminar.

Authors of selected papers will be exempt from registration fees for the seminar and will have the opportunity to present a poster during the drinks after the seminar.

Please submit an abstract in English of no more than 500 words to Erlis Themeli (themeli@law.eur.nl) and Alexandre Biard (biard@law.eur.nl) before 10 June 2018. Please include your name, affiliation, and a link to your research profile. You will be informed on the outcome on 24 June 2018 at the latest. Responsible issue editors are Xandra Kramer (Erasmus University Rotterdam/Utrecht Utrecht) and John Sorabji (University College, London).

The final paper should be 8,000-12,000 words in length (including footnotes) and must comply with the Erasmus Law Review’s Authors Guidelines. Selected papers will go through the regular double-blind peer review process and publication is subject to the outcome of this review process. The deadline for submission of the paper is 1 October 2018.

For more information see the Call for Papers.

I reported earlier on Sulamerica and the need properly and preferably, expressly to provide for choice of law vis-a-vis arbitration agreements, in particular vis-a-vis three elements: lex arbitri, lex curia, lex contractus. In Shagang the High Court added its view on the possible relevance of a fourth factor: the geographical venue of the arbitration, and its impact in particular on the curial law: the law which determines the procedure which is to be followed.

Atlas Power Ltd -v- National Transmission and Despatch Co Ltd  [2018] EWHC 1052 is another good illustration of the relevance (but in practice: rarity) of the proper identification of all four factors.

Bracewell excellently identify the four take away points from Atlas Power:

1. It is the seat of arbitration that determines the curial law of the arbitration, not the governing law of the contract.
2. (To English Courts) the choice of the seat of arbitration is akin to an exclusive jurisdiction clause in favour of the courts of the place designated as the seat of the arbitration having the supervisory role over the arbitration.
3. The English courts can and will use their powers to grant anti-suit injunctions to prevent a party from commencing foreign proceedings in breach of an arbitration agreement.
4. Complex drafting increases the risk of satellite litigation and the accompanying delay and expense.

The core point which Atlas Power illustrates is that specific identification of arbitration venue, curial law, lex contractus and lex arbitri is best done in simple terms. Overcomplication, particularly variance of any of these four points, is a truly bad idea. Specifically: the arbitration clause in the contracts between the parties (text from Bracewell’s overview)

1. Started by providing that the “arbitration shall be conducted in Lahore, Pakistan”.
2. Then stated that if the value of the dispute was above a certain threshold or fell within a certain category, either party could require that the arbitration be conducted in London.
3. Finally, the clause provided that, notwithstanding the previous sentences, either party may require that the arbitration of any dispute be conducted in London, provided that if the dispute did not satisfy the threshold or category requirements set out earlier in the clause the referring party would pay the costs of the arbitration incurred by the other party in excess of the costs that would have been incurred had the arbitration taken place in Pakistan.

 

Various procedural events led to Phillips J essentially having to decide: whether the parties had validly and lawfully chosen London as the seat of the arbitration (answer: yes); and whether, in light of Pakistani law (which was the law governing the contracts), the choice of London as the seat of arbitration did not result in the English courts having exclusive supervisory jurisdiction with the effect that the courts of Pakistan had at least concurrent jurisdiction (answer: no, for this would result in an unsatisfactory situation where more than one jurisdiction could entertain challenges to an award)

Variation of any litigation relevant articles really does open all sorts of cans of worms.

Geert.

 

Professor Hannah Buxbaum has recently published an important report (see here), prepared for the International Academy of Comparative Law’s International Congress, on forum selection clauses.  Below is the abstract.

Abstract

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case?

This report, prepared for the International Academy of Comparative Law in connection with its XXth International Congress, analyzes the approach to these questions in the United States. The bottom line is straightforward: almost always, in consumer as well as commercial contracts, forum selection clauses will be enforced. Navigating the array of substantive, procedural, and conflicts rules whose interplay yields that result, though, is far less straightforward. That is the task of this report. Following a short background, it surveys current state law on their use, in consumer as well as commercial contracts. The report then discusses the interpretation and enforcement of forum selection clauses in both state and federal courts. It analyzes their effect on jurisdiction as well as on doctrines involving venue, such as removal and forum non conveniens. The report also covers choice of law problems, particularly as they arise in the course of litigation in federal courts.

Pourvoi c/ Tribunal de police de Paris, 28 novembre 2017

To celebrate its 30th Private International Law Day, the SICL is holding a conference devoted to the new challenges of what is sometimes described as the “collaborative” or “sharing” economy. It will take place in Lausanne on 28th June 2018.

The concept of economy includes crowdfunding, “Uberisation” and all other intermediary activities using a digital platform. These mass phenomena, witnessed on a global scale, put in question the very notion of the territorial division of state borders. Is the digital space in which these platforms operate a true space, capable of being delineated and regulated at the national level, and which falls into the territorial scope of application of a law? Or is it rather a volatile cloud, globalised, delocalised, incapable of being pinned down on such a territorial basis? Is it still possible for nation states to guarantee their citizens and/or residents legal protection with regard to the intermediaries who employ them or who offer them their services? Or has it not become essential, even urgent, that a supranational law be devised and placed in the same cloudy skies in which the platform operates? Further still: is it possible to require platforms and their operators to be measured against the particular requirements of a state, notably those concerning the protection of workers and consumers? What role can contemporary private international law play in this regard?

All these questions present a challenge to the supposed neutrality sought by private international law and bring to the fore its potential political and protective role. In this respect, the state can use private international law in order to guarantee cross border protection to the weakest actors in the marketplace – notably, workers and consumers – who reside within its territory (and/or its citizens). On the other hand, however, it may be argued that state interference aimed at constraining those who operate in the digital economy may lead to harmful distortions of the global market. In this regard, what guarantees should be afforded to the freedom of the internet and, at the same time, to that of workers, whose decisions to join and work with a digital platform are made of their own free will? These considerations therefore demand that we draw on the traditional principles of party autonomy and decisional harmony. Speakers include Janine Berg, ILO Genève, Andrea Bonomi, Université de Lausanne, Miriam Cherry, University of St. Louis, Valerio De Stefano, KU Leuven, Marie-Cécile Escande Varniol, Université Lumière, Lyon II, Pietro Franzina, Università degli Studi di Ferrara, Ljupcho Grozdanovski, Université de Genève, Florence Guillaume, Université de Neuchâtel, Tobias Lutzi, University of Oxford, Anne Meier, MSS Law, Edmondo Mostacci, Università Bocconi, Etienne Pataut, Université Paris 1, Panthéon-Sorbonne, Ilaria Pretelli, Institut suisse de droit comparé, Teresa Rodríguez de las Heras Ballell, Universidad Carlos III de Madrid, Gian Paolo Romano, Université de Genève, et Gerald Spindler, Georg-August-Universität.

Click here for whole program and further information.

The European Commission has published yesterday two communications, proposing the amendment of the Evidence and Service Regulations (1201/2000 & 1393/2007 respectively).

The texts can be retrieved here  & here.

The key amendments suggested by both proposals have been summarized by Prof. Emmanuel Guinchard here & here.

‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.

Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.

Leave for appeal has been applied for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 8.

 

 

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Chambre de l'instruction de la cour d'appel de Lyon, 27 mars 2018

Engagement solennel devant la Cour de justice de l’Union européenne de quatre nouveaux membres de la Cour des comptes européenne

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Espace de liberté, sécurité et justice
La notion de « droit de visite » comprend le droit de visite des grands-parents à l’égard de leurs petits-enfants