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Over the course of the last decades the European legislature has adopted a total of 18 Regulations in the area of private international law (including civil procedure). The resulting substantial degree of legislative unification has been described as the first true Europeanisation of private international law and even as a kind of “European Choice of Law Revolution”. However, until today it is largely unclear whether the far-reaching unification of the “law on the books” has turned private international law into a truly European ”law in action”: To what extent is European private international law actually based on uniform European rules common to all Member States rather than on state treaties or instruments of enhanced cooperation? Is the way academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or is the actual application and interpretation of European private international law rather still influenced or even dominated by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

To answer these and related questions Jürgen Basedow (MPI Hamburg), Jan von Hein (University of Freiburg), Eva-Maria Kieninger (University of Würzburg) and Giesela Rühl (University of Jena) kindly invite you to the conference “How European is European Private International Law?”. that will take place on 2 and 3 March 2018 in Berlin. Bringing together academics and practitioners from all over Europe the conference will provide a platform to shed light on the present lack of „Europeanness“of European private international law and to discuss how European private international law can become more truly European in the future.

More information is available on the conference website and on the conference flyer. Please register by 1 February 2018.

The programme reads as follows:

Friday, 2 March 2018

9.00 am    Registration

9.30 am    The Europeanisation of Private International Law

• Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)
• Prof. Dr. Giesela Rühl, University of Jena (Germany)
• Dr. Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission

1st Part: Europeanness of Legal Sources

10.00 am   The relationship between EU and international Private International Law instruments

• Speaker: Prof. Pietro Franzina, Università degli Studi di Ferrara (Italy)
• Commentator: Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)

10.45 am    Discussion

11.15 am     Coffee break

11.45 am     The relationship between EU and Member State Private International Law

• Speaker: Prof. Johan Meeusen, Universiteit Antwerpen (Belgium)
• Commentator: Prof. Dr. Jan von Hein, University of Freiburg (Germany)

12.30 pm    Discussion

1.00 pm      Lunch break

2nd Part: Europeanness of Actual Court Practice

2.00 pm     The application of European Private International Law and the ascertainment of foreign law

• Speaker: Prof. Marta Requejo Isidro, MPI Luxembourg (Luxembourg)
• Commentator Prof. Paul Beaumont, University of Aberdeen (United Kingdom)

2.45 pm     Discussion

3.15 pm      Coffee break

3.45 pm      The application of European Private International Law and the role of national judges

• Speaker: Prof. Agnieszka Frackowiak-Adamska, University Wroclaw (Poland)
• Commentator: Prof. Michael Hellner, Stockholms Universitet (Sweden)

4.30 pm     Discussion

5.00 pm     The application of European Private International Law and the role of national court systems

• Speaker: Prof. Xandra Kramer, Universiteit Rotterdam (Netherlands)
• Commentator: Prof. Pedro de Miguel Asensio, Universidad Complutense de Madrid (Spain)

5.45 pm     Discussion

6.15 pm     End of day 1

7.30 pm     Reception and conference dinner

Saturday, 3 March 2018

3rd Part: Europeanness of Academic Discourse and Legal Education

8.30 am       National styles of academic discourse and their impact on European Private International Law

• Speaker: Prof. Sabine Corneloup, Université de Paris/Sorbonne (France)
• Commentator: Prof. Dário Moura Vicente, Universidade de Lisboa (Portugal)

9.15 am     Discussion

9.45 am     Coffee break

10.15 am    Overriding mandatory laws, public policy and European Private International Law

• Speaker: Prof. Marc-Philippe Weller, University of Heidelberg (Germany)
• Commentator: Prof. Stephanie Francq, Université Catholique de Louvain (Belgium)

11.00 am     Discussion

11.30 am     Legal education and European Private International Law

• Speaker: Prof. Thomas Kadner Graziano, Université de Genève (Switzerland)
• Commentator: Prof. Gilles Cuniberti, Université de Luxembourg (Luxembourg)

12.15 pm     Discussion

12.45 pm     Lunch break

2.00 pm      The future of European Private International Law in theory and practice

• Opening statement: Karen Vandekerckhove, Former Head of Unit, DG Justice and Consumers, European Commission
• Discussants: Prof. Paul Beaumont, Prof. Gilles Cuniberti, Prof. Dr. Eva-Maria Kieninger Prof. Johan Meeusen, Prof. Marta Requejo Isidro

4.00 pm     Concluding remarks

• Prof. Dr. Jan von Hein, University of Freiburg (Germany)

4.15 pm     End of conference

The Hague Academy has long offered three week summer courses in private international law. Beginning in 2019, it will also offer winter courses in January.

This is mainly because universities in the southern hemisphere are teaching during the months of July and August, when the Academy’s courses are taking place, which makes it difficult for their students to come to The Hague during that period. On the other hand, their vacation period during the southern summer will allow these students to come to the Academy in January without conflicting with their academic year. The winter courses were therefore created in the first instance with students from this part of the world in mind.

However, these students are not the only ones for whom the courses are designed. Doctoral students, from whichever part of the world they may come, are not generally required to be present at their university at all times. Therefore, those from the northern hemisphere can also attend these courses every January. In such a case, they will have an additional opportunity to meet distinguished professors from various countries, as well as other doctoral students from other parts of the world, and to benefit from exchanges in the common interest of their doctoral research work. As it does during the summer, the Academy will facilitate these exchanges with the assistance of a teacher who will be put in charge of organising and channelling them.

As for the rest, the organisation of the courses and their publication, seminars, directed studies and diploma will be exactly the same as in the summer. The only difference is that the distinction between a public international law period and a private international law period has been abolished in favour of a single three-week period of “international law”, taking into account the general trends in the development of the subject.

Registrations will open from 3 January 2018.

Further information at
https://www.hagueacademy.nl/programmes/winter-courses/

The program for January 2019 is here.

by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany.

On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels.

After welcoming remarks by Dr. Angelika Fuchs, Prof. Bénédicte Fauvarque-Cosson, University Paris II – Panthéon-Assas, chaired the first panel on the scope of the Directive. To begin with, Prof. Fauvarque-Cosson reminded the participants of the past developments in European contract law, mentioning the UPICC, the Principles of European Contract Law, and the CESL. The challenges these projects had to face clearly showed that for most member states contract law represented the heart of their legal traditions, and member states were therefore reluctant towards radical changes.

Evelyne Gebhardt, MEP, Co-rapporteur for the IMCO and JURI Committees, explained the position of the IMCO/JURI joined committee after the vote on 21 November 2017. In order to ensure updates for consumers and interoperability, a sensible inclusion of embedded digital content (EDC) was proposed. The scope of the Directive was extended to also include OTTs (Over-the-top content) in order to ensure remedies and conformity rights in this field. The overall objective were a high level of consumer protection and to anticipate rules for digital content on a European scale in order to prevent deviating national legislation.

Jeremy Rollson, Microsoft, praised the work of the Commission and the European Parliament. With regard to platforms, he proposed a modernization of the scope. Since the release of the proposal in 2015 by the commission, the technology had already gone through major changes. As various forms of OTTs existed, it proved hard to find a one size fits all model, however it were necessary to agree on certain principles. Rollson outlined the difficulties businesses were facing, because many different legal instruments had to be considered. He suggested a targeted scope in order to ensure the applicability of the rules.

The question, which rules should apply to embedded digital content, was addressed by Prof. Karin Sein, University of Tartu, Estonian EU Presidency Team. After having explained the advantages and disadvantages of the different approaches, she reported on the council’s opinion to exclude embedded digital content from the scope of the Digital Content Directive. This solution offered the upside that from a consumer’s perspective it was easily understandable, that the rules for goods also applied to smart goods. The overall goal was to achieve a future-proof solution, which was at the same time easily understandable for the average consumer.

In the following discussion Evelyne Gebhardt disagreed with Prof. Sein on the topic of embedded digital content and presented the European Parliament’s opinion to extent the scope of the directive to EDC. The European Parliament preferred the split approach. This approach offered the main advantage that it were not up to the consumer to define where the product’s defect lay, but the supplier had to determine whether the defect touched the digital content or the good itself. Prof. Sein replied that, overall, it was less relevant, where the rules were installed, since this was only a question of technique. Nevertheless, the installation of specific rules remained the main objective. Prof. Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, agreed and added the main requirements of the rule were that it needed to be forward-looking and at the same time practical for consumers. Prof. Fauvarque-Cosson highlighted the different scope of the Digital Content Directive in contrast to the CESL, as the scope was limited to B2C-contracts and moreover the territorial scope covered domestic as well as cross-border contracts.

Prof. Karin Sein introduced the audience to the second panel’s focus on conformity criteria, remedies and time limits. Agustín Reyna, BEUC, compared the specifications of the conformity criteria in the Commission’s proposal to the Council’s proposal and the IMCO/JURI report. During the upcoming Trilogues he would expect an agreement on a balance between objective and subjective criteria. He pointed to the possible conflicts between contractual disclaimers (subjective) and consumer expectations (objective). He praised the amendment in Art. 6a (5), which introduced specific rules for updates for digital content or digital services. In his opinion the relation between third party rights and copyright issues needed further clarification.

Staudenmayer added to the discussion on the inclusion of updates that consumers needed to be informed about possible updates as well as a right to terminate. The topic, whether the consumer should be able to keep the old version, was discussed controversially. With regard to the remedies package, Staudenmayer justified the facilitation of the right of termination by stating that most suppliers also preferred a termination of the contract, caused by the fact that they did not want to invest in a bad product and rather develop a new one. On the other hand consumers also profited, as the easier termination gave an incentive to suppliers to develop good products. Regarding the reversal of burden of proof, he reported on the commission’s reason to not imply a time limit, since digital content was not subject to wear and tear. However, as the council and the European Parliament supported a time limit for the burden of proof, a discussion on how long this period will be and when it should start is expected. To conclude, Staudenmayer emphasized the transition our economy is undergoing as it is turning towards a digital economy and reminded the participants of the importance of promoting this change in order to stay competitive on a global scale.

Panel II ended with a Round Table on the topic “Balancing the interest of suppliers and consumers? Watering down full harmonization?”. Fauvarque-Cosson explained the historic development from a preference for minimum to a preference for maximum harmonization and indicated that recently some member states saw the subsidiarity principle endangered. Therefore she suggested more targeted rules as a substitute for full harmonization. Concerning updates, Anna Papenberg, stated that updates could often be very burdensome and consumers needed access to previous versions. Prof. Schulte-Nölke referred to the suggestion of the ELI regarding embedded digital content, which proposed that in this case hard- and software should be subject to remedies and the consumer should be allowed to cherry-pick a system. The Round Table ended with the conclusion that defining a targeted scope could lead to similar results as full harmonization.

After a short lunch break, Stephen Deadman, Facebook Global Deputy Chief Privacy Officer reported on “Data and its role in the digital economy”. He stated that in the future, as part of a new wave of innovation, people would be made aware of the value of their data with the aim of empowering people in their life by using their data. In his opinion data driven innovation and privacy should become mutually enforcing. He underlined that data were not to be classified as a currency, as it were neither finite nor exclusive. In fact, data were superabundant and, by using data, people did not give up data.

Romain Robert, Legal Officer, Policy & Consultation Unit, EDPS, presented the “Interaction of the GDPR, the e-Privacy legislation and the Digital Content Directive”. He stressed the EDPS’s opinion that data were significantly different from money as a counter performance. He referred to the EDPS opinion from April 2017 on the proposed Directive and explained the position, why the term “data as a counter performance” should be avoided. Differences between the Digital Content Directive and the GDPR arose with regard to the definition of personal data. In the EDPS opinion almost all data provided by the consumer would be considered as personal data.

Insight on the topic “Data as a price under contract law?” was provided by Prof. Hans Schulte-Nölke, University of Osnabrück and the Radboud University Nijmegen. In his opinion the Digital Content Directive was not properly coordinated with the GDPR. He pointed to a conflict between contract law and the GDPR, as under data protection law personal data were protected as a fundamental right, whereas in contract law personal data could be considered as a counter-performance for a service. Hence under contract law the contract was the reason for the right to exchange, thus for what had been exchanged under the contract. Therefore the supplier had a right to keep the counter performance after proper performance of the contract. Meanwhile the GDPR granted a right to withdraw consent at any time (Art. 7 (3) GDPR). How can a balance be achieved in a way that, on the one hand, contract law is interpreted in the light of the GDPR and, on the other hand, considering the principle that GDPR supersedes contract law, but contract law purposes are still met. He came to the conclusion the GDPR should not hinder contract law. Further, he raised the question, whether a counter performance could be assumed, in the case that a supplier gathered more information than the amount that were necessary for the performance of the service.

“Provision of data and data processing under the proposed regime” was the subject of the Round Table at the end of the conference day. Jeremy Rollson drew the attention to his opinion that data were neither comparable to oil nor to a currency, but without doubt very valuable. Robert Reyna agreed and further elaborated that the idea of “data as a counter performance” put suppliers in a very strong position, as they could determine, which data to label as a counter performance and which to label a necessity for the contract. A solution to balance this power of determination could be a presumption in consumer law. Anna Papenberg specified that a consumer could not give away personal data, but, more specifically, the exploitation rights of data. The fact that consumers did not give up data, but that their data was being used, were not the same as a counter performance, added Stephen Deadman. It was agreed on the necessity to limit the power of the supplier in order to define, which data counted as counter performance and which was necessary for the execution of the contract. The event ended with warm words of thanks to the organizers and speakers for a highly interesting conference day.

I have reported before on the relevance of lex curia /curial law and other lex causae decisions to be made in the arbitration context. I have also reported on the qualification of ‘international‘ for conflict of law /private international law purposes. And finally of course privity of choice of court and -law is no stranger in my postings either. All these considerations apply in the arbitration context, too.

Thank you Herbert Smith for flagging CS(COMM) 447/2017 GMR Energy, in which all these issues featured in the arbitration context. The judgment would not seem to add anything new (mostly applying precedent) however it is a usual reminder of the principles. As reported by HS (and with further factual background there), GMR Energy argued

• on the plain reading of the arbitration clauses, Singapore was not the seat of arbitration but only the chosen place or venue for hearings; Not so, the High Court found: reference to SIAC rules and to Singapore  points to Singapore as the curial seat;
• the parties being Indian, choice of a foreign seat for arbitration would be in contravention of Section 28 of the Indian Contract Act 1872 which provides that agreements which restrain parties’ rights to commence legal proceedings are void (save for those which do so by way of an arbitration agreement) – GMR Energy contended that an agreement between Indian parties to arbitrate offshore would fall foul of this provision. This, too, the High Court rejected: per precedent, offshore arbitration is compatible with the Act. (It is also particularly useful for Indian subsidiaries of foreign companies); and
• for two Indian parties to choose an overseas seat for their arbitration (thereby disapplying Part I of the Arbitration Act) would amount to a derogation from Indian substantive law, and therefore would not be permissible. This, the High Court ruled, is not a decision to make at the stage of jurisdictional disputes between the parties.

Further, on  the issue of privity, Doosan India ‘contended that GMR Energy should be party to the SIAC Arbitration proceedings by virtue of common family ownership and governance, lack of corporate formalities between the companies, common directorships, logos and letterheads, and GMR Energy’s past conduct in making payments towards GCEL’s debts’ (I am quoting HS’s briefing here). This is referred to as the alter ego doctrine and the High Court upheld it. Liability for affiliated undertakings’ actions is to be discussed on the merits (here: by the arbitral tribunal). But a the level of jurisdiction (including reference to arbitration), Doosan India’s arguments were upheld: the common ownership between the entities; the non-observance of separate corporate formalities and co-mingling of corporate funds; and GMR Energy’s undertaking to discharge liabilities of GCEL (and the fact that it had made part payments towards the same) all conspire to the conclusion that GMR Energy is bound by the arbitration agreement.

An interesting confirmation of precedent and ditto application of the alter ego doctrine.

Geert.

Par le biais de cet arrêt portant sur le contrôle de l’arrestation et la détention provisoire d’un ancien ministre de Géorgie appartenant désormais à l’opposition politique, la grande chambre de la Cour européenne des droits de l’homme (CEDH) précise son interprétation de l’article 18.

en lire plus

Tribunal de Grande Instance de Créteil,12ème chambre correctionnelle, 27 novembre 2017

Procédure civile

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

With International Insolvency Law Part II having been published, Bob Wessels’ 10 volume series ‘Insolventierecht’ (Insolvency Law) is now completed in its 4th edition. The publication comprehensively deals with the European Insolvency Regulation Recast as entered into force on 26 June 2017, while International Insolvency Law: Part I Global Perspectives on Cross-Border Insolvency Law, already published at the end of 2015, covers the core concepts of Cross-Border Insolvency Law, other regional frameworks than the EIR and relevant instruments of soft law. Thus, both books collectively provide a comprehensive overview of the current state on Cross-Border Insolvency Law. The book is ‘user supported’ as it was possible to send useful information or comments to the author on drafts of texts of the book which were available online in early 2017. International Insolvency Law Part II comes in form of a commentary, which makes its structure more or less self-explaining. Besides the commentary itself, it offers an introduction to the EIR, a bibliography, table of cases and legislation, as well as five appendices and a consolidated index for Part I and Part II.

The commentary itself is up to date, as it includes all recent case-law and literature so that you can find profound information on all questions relevant in the context of the EIR. Highly recommended is the part on Cross-Border Cooperation and Communication, which sheds some light into this area of cross-border insolvency law that is shaped by practitioners and courts more than by the legislator. Then again, one might have wished to see some more thoughts on the new instrument of the undertaking in Art. 36 EIR, e. g. on the question of applicable law, especially the interplay between the undertaking and the rules governing rights in rem and acts detrimental to creditors.

Not only the commentary itself, but also its exhaustive bibliography and table of cases covering presumably every source relevant in cross-border insolvency law today make International Insolvency Law Part II a standard reference for practitioners as well as academics.

International Insolvency Law: Part II European Insolvency Law, 4th edition 2017 is available here.