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It is my pleasure to announce in this and the following entries the publication of three new volumes of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, starting with volume 8, edited by Professors B. Hess and X. Kramer.

From common rules to best practices in European Civil Procedure

 

2017, 486 p., ISBN 978-3-8487-4219-6

Click here to access the table of contents

Abstract:

What road should procedural innovation take? Twenty years after the adoption of the extended competence in the area of judicial cooperation under the Amsterdam Treaty, numerous instruments on European civil procedure have been developed and enacted by the EU legislature, and applied by national courts. There is no doubt that these instruments have built a genuine Judicial Area where citizens and businesses can rely on operating justice systems and functioning cross-border cooperation. While it remains important to study these legislative instruments and, where necessary, to establish new instruments, civil procedure in the EU has entered a new era in which the development of common standards and best practices in the Member States and at the EU level are of the essence.

The theme of the present book is inspired by the shift in focus from the establishment of new legislation with common rules to a focus on the actual implementation, application, and operationalization of the rules on cooperation in civil justice. While the discussion of common rules continues to be important and has regained importance as a result of the “common minimum standards” initiative of the European Parliament, some papers in this book also focus on how to move beyond common rules and towards best practices. These “best practices” in applying European instruments, implementing new pathways to civil justice – including eJustice, alternative dispute resolution (ADR) and collective redress — and the operationalizing of judicial cooperation, for instance through the European Consumer Centres and the European Judicial Network, give body to the principles of mutual trust and judicial cooperation. These can in turn feed the further development of the European civil procedure framework from the bottom up.

Part I is a general part dedicated to common standards of EU civil procedure, focusing on the harmonization of civil procedure and judicial cooperation in general. The central questions of this part concern whether there is a need for common standards of EU civil procedure, how to identify them, and whether we need harmonization to achieve harmonious cooperation.

The chapters included in Part II of the book are organized around the question as to whether and how innovative mechanisms for dispute resolution can enhance cooperation in the field of civil justice. E-Justice has been one of the spearheads of the European Commission to improve access to justice, with the establishment of the e-justice portal as the main achievement.

Part III is dedicated to alternative dispute resolution. Encouraging and improving Alternative Dispute Resolution (ADR) mechanisms, in particular for consumers, is another focal point in EU policy to simplify access to justice in recent years, and has resulted in the Directive on Consumer ADR48 and the Regulation on Consumer Online Dispute Resolution (ODR) along with the establishment of the ODR platform.

Part IV includes a number of short chapters on best practices in the EU to operationalize judicial operation and to improve mutual trust.

With contributions from more than 20 experts from practice and academia this remarkable conference volume offers valuable blueprints for a reinvigorated judicial cooperation.

Le gouvernement a diffusé aux associations une note de synthèse présentant le projet de loi asile-immigration. Le texte sera présenté par Emmanuel Macron lors de son discours à Calais et devrait être adopté en conseil des ministres courant février. 

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In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.

Pourvoi c/ Cour d'appel de Reims, Chambre correctionnelle, 23 juin 2017

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

Pourvoi c/ Cour d'appel de Douai, chambre 2, 29 juin 2017

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Spanish airline Vueling Airlines S.A is still intending to acquire large parts of the NIKI business. Vueling is part of the European aviation group IAG, which also includes British Airways, Iberia, Aer Lingus and LEVEL. The provisional insolvency administrator of NIKI Luftfahrt GmbH, therefore, will continue to drive the sales process. Vueling has provided interim financing of up to € 16.5 million to finance the NIKI business until the closing of the purchase agreement. This funding is only sufficient for a few weeks.

Meanwhile, NIKI has lodged an appeal with the Federal Court against the ruling by the Regional Court of Berlin. Due to the legal complaint of the NIKI management against the decision, it does not have legal force yet. The preliminary insolvency proceeding in Germany therefore continues.

NIKI is expected to apply for the opening of secondary insolvency proceedings in Austria by the end of the week, as well. According to the provisional insolvency administrator of NIKI this procedure is an important step to ensure the orderly processing of NIKI in Austria. In addition, the purchase agreement for the NIKI business should now be secured at short notice via this Austrian secondary process.

It remains to be seen how the German Federal Court deals with the question of the rebuttal of the assumption that NIKI’s COMI is located in Austria (the place of its registered office). It is even possible that the ECJ has to deal with this question for a second time after the Eurofood IFSC (Case C-341/04) case. As we will probably see a secondary proceeding commenced in Austria (NIKI seems to be one of the rare cases where the insolvency administrator of the main proceeding finds the commencement of a secondary proceeding useful for the success of the administration) we might even witness the application of some of the new rules of the EIR on the cooperation and coordination of main and secondary proceedings.

Coman e.a.
Citoyenneté européenne
Selon l’avocat général Wathelet, la notion de « conjoint » comprend, au regard de la liberté de séjour des citoyens de l’Union et des membres de leur famille, les conjoints de même sexe

Les articles 27 et 30 de la Convention de Lugano du 30 octobre 2007 doivent être interprétés en ce sens que, en cas de litispendance, la date à laquelle a été engagée une procédure obligatoire de conciliation devant une autorité de conciliation de droit suisse constitue la date à laquelle une « juridiction » est réputée saisie.

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Symeon Symeonides has posted on SSRN his 31st annual survey of American choice-of-law cases. The survey covers appellate cases decided by American state and federal courts during 2017. It can be found here https://ssrn.com/abstract=3093709  The table of contents is reproduced below.

Symeonides has also posted his annual Private International Law Bibliography for 2017. It can be found here https://ssrn.com/abstract=3094215.

 

31st Choice-of-Law Survey Table of Contents

 

Introduction

Part I. Jurisdiction

1. The Supreme Court Speaks (Again)
2. Foreign Sovereign Immunity
3. The Terrorism Exception
4. The Noncommercial Tort Exception
5. The Expropriation Exception
6. Jurisdiction Over Non-Recognized States
7. The Fukushima Nuclear Accident
8. The Political Question Doctrine

Part II. Extraterritoriality (or Non) of Federal Law

1. Fifth Amendment
2. Alien Tort Statute and Human Trafficking
3. Civil Rico and Domestic Injuries

Part III. Choice of Law

1. Torts
2. Georgia’s Peculiar Lex Loci Rule
3. Intrafamily Immunities and Families in Transit
4. Vicarious Liability
5. Distribution of Wrongful Death Proceeds
6. Hospital Liens
7. Medical Malpractice and State Immunity
8. Federal Tort Claims Act and United States Immunity
9. Defamation
10. Extraterritoriality (or Non) of State Statutes
11. Cross-Border Telephone Calls
12. State Civil RICO
13. Other Statutes
14. Air Travel, a “Needlestick,” and the Montreal Convention
15. Products Liability
16. Introduction
17. Cases Applying the Pro-Defendant Law of a Plaintiff-Affiliated State
18. Other Cases Applying a Pro-Defendant Law
19. Cases Applying a Pro-Plaintiff Law
20. Contracts
21. Choice-of-Law Clauses and Jury Waivers
22. Choice-of-Law Clauses and Trusts
23. Choice-of-Law Clauses and Old-Style Ordre Public
24. Separability(?) of Choice-of-Law Clauses
25. Scope of the Choice-of-Law Clause
26. Choice-of-Law and Forum-Selection Clauses
27. Choice-of-Law Clauses and Arbitration Clauses
28. Insurance Contracts
29. Choice-of-Law Methodology
30. Vacillation in Wyoming
31. The Methodological Table
32. Statutes of Limitation
33. New Jersey’s New Switch
34. Summary of State Practices
35. Choice-of-Law Clauses and Statutes of Limitations
36. Recovering Nazi-Looted Artwork
37. Marriage and Divorce
38. Marital Property

Part IV. Foreign Judgments and Awards

1. Sister-State Judgments
2. Land in another State
3. Due Process
4. Statutes of Limitations
5. Foreign-Country Judgments
6. Paternity and Public Policy
7. Child Custody and Human Rights
8. Child Support
9. Procedural Due Process
10. Service of Process
11. Jurisdiction in the State of Origin
12. Judgment “Contrary” to Arbitration Agreement
13. Statute of Limitations
14. Foreign Arbitration Awards

Entreprises en difficulté (loi du 26 juillet 2005)

Thank you Bob Wessels for again alerting us (with follow-up here and also reporting by Lukas Schmidt here) timely to a decision this time by the German courts in Niki, applying the Insolvency Regulation 2015, on the determination of COMI – Centre of Main Interests. Bob’s review is excellent per usual hence I am happy to refer for complete background.

Of particular note is the discussion on the extent of a court’s duty to review jurisdiction ex officio; the court’s correct assumption that in the event of foggy circumstances, the EIR’s presumption of COMI at the place of incorporation must have priority; and finally in my view the insufficient weight the court places on ascertainability by third parties.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

Western Sahara Campaign
Relations extérieures
Selon l’avocat général Wathelet, l’accord de pêche conclu entre l’UE et le Maroc est invalide du fait qu’il s’applique au Sahara occidental et aux eaux y adjacentes