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As noted by Marta Requejo in an earlier post, the European Commission has published on 12 March 2018 a proposal for a regulation on the law applicable to the third-party effects of assignments of claims.

On 4 April 2018, a seminar (in English) will take place at the Department of Law of the University of Ferrara under the title Voluntary Assignment and Contractual Subrogation under EU Private International Law. The Commission proposal will, of course, be one of the key topics of the seminar.

Speakers include Martin Gebauer (University of Tübingen), Antonio Leandro (University of Bari), Alina Ontanu (Erasmus University Rotterdam) and Riccardo Manfrini (lawyer in Treviso).

Further information may be found here.

In one of my many ponderings on research I would like to do but might never get an opportunity do (hence my repeated sharing of potential PhD topics) I came across an excellent post by Daniel Jowell QC on the application of EU competition law in the UK courts post-Brexit.

The usual disclaimer of course applies (let’s wait and see what happens in the future Treaty between the UK and the EU) yet one important consideration has wider appeal: how does one apply the classic conflicts suggestion that courts do not apply foreign public law, or if they do, do so with great caution?: both out of comity with the foreign State; and to protect one’s own ordre public.

Competition law is often seen as being of quasi-public nature. Daniel justifiably suggests that post Rome II (in which competition law is assigned a specific (if complicated) lex causae), the UK will revert to its standard rules which increase the possibility that UK courts might refuse to apply foreign competition law, including the EU’s, on public policy grounds.

One to remember.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.

Une décision judiciaire prononcée sans que le débiteur ait été informé de l’adresse de la juridiction à laquelle il convient d’adresser la réponse, devant laquelle comparaître ou, le cas échéant, auprès de laquelle un recours peut être formé contre cette décision, ne peut être certifiée, en tant que titre exécutoire européen, conformément aux dispositions du règlement (CE) n° 805/2004 du 21 avril 2004.

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Dans une décision communiquée le 1er mars 2018, la Cour européenne des droits de l’homme a estimé que le rejet par les juridictions françaises d’une demande de délégation d’autorité parentale croisée au sein d’un couple formé de deux femmes ne révélait aucune différence de traitement selon leur orientation sexuelle.

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Non lieu à renvoi

Non lieu à renvoi

On March 12, 2018, the Commission has proposed new rules to clarify according to which law such disputes are resolved: as a general rule, the law of the country where creditors have their habitual residence would apply, regardless of which Member State’s courts or authorities examine the case.

Click here to access the proposal, COM(2018) 96 final.

A case title which sounds a bit like a Scandinavian crimi – that’s because it almost is. In [2017] EWHC 2570 (Pat) Parainen Pearl et al v Jebsen Skipsrederi et al the facts amounted to claimants, who had purchased a vessel containing a pneumatic cement system patented by defendant (a company domiciled in Norway), seeking a declaration of non-infringement (DNI) of said patent. The purchase was somewhat downstream for the vessel had been sold a number of times before.

Claimants suggested jurisdiction for the UK courts for DNIs relating effectively to the whole of the EEA (at least under their reasoning; the specific countries sought were Sweden and Finland). For the English (and Welsh side of things jurisdiction is established without discussion under Article 5(3) Lugano, forum delicti. Reference was made to Wintersteiger and to Folien Fischer.

Claimants suggested that by the first sale to the original owner, defendants had ‘exhausted’ their intellectual property thus rendering the vessel into a good free to sold across the EEA. Should the court agree with that view, that finding of exhaustion would have to be accepted, still the argument went, across the EEA. Hence, an initial finding of exhaustion, given the need to apply EEA law the same in all EEA Member States, would have to be accepted by all other States and conversely this would give the English courts jurisdiction for pan-EEA DNIs.

Arnold J refers to among others Roche, Actavis v Eli Lilly, Marzillier. He holds that a potential finding by an English court of exhaustion may not necessarily be recognised and enforced by other courts in the EU or indeed EEA: it is not for the UK courts to presume that this will be so (despite their being little room for others in the EEA to refuse to enforce): ‘(Counsel for claimant) argued that.., on a proper application of European law, there could only be one answer as to whether or not the Defendants’ rights under the Patent in respect of the Vessel had been exhausted. In my view, however, it does not follow that it would be proper for this Court to exercise jurisdiction over matters that, under the scheme of the Lugano Convention, lie within the province of the courts of other Contracting States.’

Article 5(3) which works for UK jurisdiction, can then as it were not be used as a joinder-type (Article 6(1) Lugano; Article 8(1) Brussels I Recast) bridgehead for jurisdiction on further claims.

Conclusion: UK courts have no jurisdiction in so far as the DNIs extend beyond the UK designation of the Patent.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.4, Heading 2.2.12.1.

In [2017] EWCA Civ 1581 Taftnet v Bogolyubov the Court of Appeal held that an English court can allow addition of a claim which is time barred by the governing law identified by Rome I or Rome II. At 72 Longmore J notes ‘Under Article 12.1(d) of Rome I and Article 15(h) of Rome II, the applicable foreign law governs limitation of actions.’ However neither Rome I nor Rome II apply to matters of procedure (Article 1(3) in both of the Rome Regulations).

The Court of Appeal clearly takes Article 1(3) at face value by allowing amendment of the claim even if it thence includes a claim time barred under the lex causae: not to do so would endanger the consistent application of English procedural law. Article 12 cq 15 do not sit easily with Article 1(3). That has been clear from the start and it is an issue which needs sorting out. In the absence of such clarification, it is no surprise that the English courts should hold as Longmore J does here.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 3, Chapter 4.

Relève du champ d’application du règlement du 4 juillet 2012 en matière de successions une disposition nationale qui prévoit, lors du décès de l’un des époux, une répartition des acquêts forfaitaire par majoration de la part successorale du conjoint survivant.

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SaveComp is a project co-funded by the European Union whose goal is to collect and exchange best practices in the field of insolvency and pre-insolvency cross-border proceedings.

The project has now been concluded, and the final deliverables are available online.

These are a collection of more than 500 decisions regarding the EU Insolvency Regulation, available through the Unalex database, and a Final study, edited by Ilaria Queirolo (University of Genoa) and Stefano Dominelli (University of Milan), and authored by Stephan Biehl, Jan Brodec, Janeen Carruthers, José Juan Castelló Pastor, Rolef J. de Weijs, Tsvetelina Dimitrova, Carlos Esplugues Mota, Francisco Gómez Fonseca, Urs Peter Gruber, Boriana Musseva, Nikolay Natov, Vasil Pandov, Monika Pauknerová, Magdalena Pfeiffer, Dana Rone, Arthur Salomons, Dafina Sarbinova, Alexander Schley, Emil Tsanev, Teodora Tsenova, C.G. van der Plas and Aukje A.H. van Hoek.

The project, led by the University of Genoa, involved the Universities of Valencia, Amsterdam, Glasgow, Mainz, Prague and Valencia, the Turiba University in Riga, the Institute of Private International Law in Sofia and IPR Verlag.

Further to the splendid conference How European is European Private International Law? at Berlin on 2 and 3 March 2018, I would like to add some thoughts on an issue that was briefly raised by our fellow editor Pietro Franzina in his truly excellent conference presentation on “The relationship between EU and international Private International Law instruments”. Pietro rightly observed an “increased activity on the external side”, meaning primarily the EU’s PIL activities on the level of the Hague Conference.

At the same time, there seems to be still a blind spot for the EU’s Private International Law policy when it comes to the design of the EU’s Free Trade Agreements (FTAs). Although there is an increasingly large number of such agreements and although “trade is no longer just about trade” (DG Trade) but additionally about exchange or even export of values such as “sustainability”, human rights, labour and environmental standards and the rule of law, there seems to be no policy by DG Trade to include in its many FTAs a Chapter on judicial cooperation with the EU’s respective external trade partners.

To my knowledge there are only the following recent exceptions: The Association Agreements with Georgia and Moldova. Both Agreements entered into force on 1 July 2016.

Article 21 (Georgia) and Article 20 (Moldova) provide:

“Legal cooperation: 1. The Parties agree to develop judicial cooperation in civil and commercial matters as regards the negotiation, ratification and implementation of multilateral conventions on civil judicial cooperation and, in particular, the conventions of the Hague Conference on Private International Law in the field of international legal cooperation and litigation as well as the protection of children.”

Article 24 of the Association Agreement of 29 May 2014 with the Ukraine reads slightly differently:

“Legal cooperation: 1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.”

All other FTAs, even those currently under (re-) negotiation, do not take into account the need for the management of trust in the judicial cooperation of the trade partners in their deepened and integrated trade relations. Rather, foreign trade law and PIL seem to have remained separate worlds, although the business transactions that are to take place and increase within these trade relations obviously rely heavily on both areas of the law.

Some thoughts on why there is no integrated approach to foreign trade and PIL in the EU, why this is a deficiency that should be taken care of and how this could possibly be done are offered here (http://ssrn.com/abstract=3134324).

Quentin Declève alerted me to the Air Cargo damages compensation case currently making its way through the Dutch courts. (I have previously reported on jurisdictional issues re such cases; searching the tag ‘damages’ should help the reader).

I have difficulty locating the actual judgment addressing the issue in this post: namely applicable law in follow-up competition cases. I have however located one or two previous judgments addressing the damages claims assignment issue in same. This web of litigation seems to be particularly knotty and any help by Dutch or other readers would be appreciated.

At issue is whether Rome II applies to the facts ratione temporis; if it does, how Article 6 should be applied, in particular: locus delicti commissi, locus damni and ‘affected markets”; and if it does not, how the previous Dutch residual connecting factor ought to apply.

A case of great relevance to competition law and fair trading cases.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.

Pourvoi c/ Cour d'appel de Paris, Chambre 5-12, 05 décembre 2017

The Italian Ministry for Education, University, and Research (Ministero dell’Istruzione, dell’Università e della Ricerca, MIUR) has issued a public call for  24 researcher positions.

The call is open to scholars of all nationalities who have spent three years working at a non-Italian research center or university and have been awarded a PhD degree, or equivalent, after 31 October 2011 and by 31 October 2014.

The winner of the call will work as a Senior Researcher with an initial 3-year working contract (Ricercatore a tempo determinato, tipologia B) that leads to Associate Tenured Track Professorship subject to National Scientific Habilitation (Abilitazione Scientifica Nazionale, «ASN»).

The English translation of the Ministerial Decree is available at the following address: (http://cervelli.cineca.it/).

The deadline to submit the application is 28 March 2018, h. 24.00 (Italian local time).

***

In the context of this call, the University of Milan, Department of International, Legal, Historical and Political Studies (http://eng.intgiurpol.unimi.it/ecm/home) wishes to express its interest to welcome outstanding researchers in the areas of Public and Private International Law, EU Law, Comparative Law who would like to apply.

For additional information please contact Dr. Stefano Dominelli (stefano.dominelli@unimi.it).

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford

Last weekend, more than a hundred scholars of private international law followed the invitation of Jürgen Basedow, Jan von Hein, Eva-Maria Kieninger, and Giesela Rühl to discuss the ‘Europeanness’ of European private international law. Despite the adverse weather conditions, only a small number of participants from the UK – whose presence was missed all the more dearly – were unable to make it to Berlin. Thus, the Goethe-Saal of the Max Planck Society’s Harnack House was packed, and so was the conference programme, which spanned over two full days.

It was kicked off by Andreas Stein (European Commission) and Johannes Christian Wichard (German Ministry of Justice), who underlined both the accomplishments of and the challenges for European private international law in their respective welcome addresses. The programme then proceeded from a closer look at the sources of European private international law (and their relationship with other international instruments and the domestic laws of the member states) to an analysis of its application in the courts of the member states (including the ascertainment of foreign law) to a discussion of the ‘Europeanness’ of academic discourse and legal education within the EU and outside of it (with a focus on the political dimension of EU private international law).

All presentations provided ample food for thought, as was evidenced by the lively discussions that followed each panel. They highlighted a number of interesting tendencies, such as the remaining ‘piecemeal character’ of the field, the ambiguities caused by an ever-increasing number of recitals in European instruments, the regrettable absence of private international law from the legal curriculum in many EU member states, and a certain convergence of academic styles, not least through the growing adoption of German-style commentaries and the emergence of English as the undisputed lingua franca of the field. One of the more contentious issues discussed was the possible creation of a general instrument of private international law (think: Rome 0 Regulation), or even a complete codification, with numerous participants pointing towards its potential for more coherence, clarity, and ‘teachability’ of European private international law – while others urged more caution.

The most prominent theme of the two days, though, seemed to be the observation that the emergence of a distinctly European scholarship of private international law should be both welcomed and fostered. The idea of creating an association that could provide an institutional framework for further dialogue between European scholars, practitioners, and other stakeholders in private international law was mentioned more than once – and received almost unanimous support during the round table discussion that concluded the conference. It was fitting, then, that the conference included the official launch of the Encyclopedia of Private International Law, many authors of which were present in Berlin. This truly Herculean project, just as the conference itself, is testimony to how fruitful such dialogue can be.

(This Call for paper is provided for by Jeanne Huang)

The issue of cross border protection of intellectual property (IP) was very important and explained the use of bilateral and multilateral treaties such as the Berne Convention and the Paris Convention. One of the fundamental principles underlying these treaties was territoriality and the national treatment principle. However, the advent of the 21st century brought
digitisation and globalisation, which have significantly impacted upon the territoriality protection. Finding the best way to protect IP within the context of globalisation and digitisation was the most fundamental question that the workshop sought to answer. We invite colleagues working on private international law and IP to submit expressions of interest to present at the workshop, which will be held at the Faculty of Law, University of New South Wales on Saturday, 18 August 2018, from 9:30 am -5:00 pm. The workshop is
designed to allow researchers working in the field of private international law and IP to deliver work-in-progress papers to their peers. We particularly welcome submissions to discuss and debate the draft International Law Association Guidelines of Intellectual Property and Private International Law, available at http://www.ip.mpg.de/fileadmin/IP/pdf3/ILA_Guidelines-6Oct2015.pdf.

We are keen to receive proposals that focus on private-international-law issues in cross-border IP disputes, such as:
• Jurisdiction,
• Applicable Law,
• Recognition and Enforcement of Judgments,
• Arbitration or
• Private international law issues in smart contracts, blockchain transactions and other digitalized transactions.

For paper proposals, speakers are to submit a title and 150-200 word abstract, along with a one-page CV for potential inclusion in the workshop. Please send your proposal to Jeanne.Huang@unsw.edu.au by 15 April 2018.

Un pilote de ligne accomplit habituellement son travail en France, dès lors que sa base d’affectation est un aéroport situé en France où il reçoit ses instructions et qu’un quart de ses vols est effectué à partir ou à destination de la France.

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La Cour de justice de l’Union européenne a rejeté le recours de la SNCF contre l’arrêt l’ayant condamné à rembourser plus de 642 M€ (hors intérêts) dans une affaire d’aide d’Etat qui dure depuis plus de quinze ans.

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