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Entries for the St Petersburg International Legal Forum Private Law Prize will close on 15 November 2017. The first prize, to the value of 10 million rubles, will be awarded to the author of the best research monograph or author(s) of a research article published on any topic of private law, private international law or comparative law. There is no word or page limit for monographs and articles. (Textbooks and academic commentaries are not eligible.)

Candidates’ monographs or articles must be nominated by one of the 81 universities and institutions listed on pages 8-11 of the competition guidelines, which are accessible here: https://spblegalforum.ru/cm/userfiles/file/SPBILF-2018_Award_eng.pdf.

The prize’s selection committee consists of experts many of whom are well-known to the readers of this blog, including Jürgen Basedow, Marta Pertegás, Michael Bonell, Roy Goode and Takeshi Kojima, to name a few.

The prize will be awarded at the VIII St Petersburg International Legal Forum in May 2018.

Further details on the conditions of the prize and the selection committee are available here: https://spblegalforum.ru/en/2018_SPBILF_Award.

On 2 and 3 November 2017, the Radboud University at Nijmegen hosted the 9th Transnational Commercial Law Teachers’ Meeting. In these meetings, teachers of transnational commercial law from all over the world gather to discuss fundamental issues and core instruments of unified or harmonized commercial law as laid down in the “bible” of transnational commercial law by Roy Goode, Herbert Kronke and Ewan McKendrick (see here), but also current trends and teaching methods.

This time, the meeting focused on “Transnational Commercial Law and Natural Resources”. After the opening by the President of the University Daniel Wigboldus, Herbert Kronke (Iran-US Claims Tribunal, emeritus of Heidelberg University, former Secretary-General of UNIDROIT) and Thomas Keijser (Radboud University), in a first panel chaired by Charles Mooney, University of Pennsylvania Law School, several speakers addressed the latest developments of UNIDROIT’s Cape Town Convention on International Interests in Mobile Equipment and its latest Protocol on Mining, Agriculture and Construction Equipment (MAC Protocol) as well as further potential areas of application such as e.g. renewable energy machinery but also with a view to other types of cross-border secured transactions (Howard Rosen, Rail Working Group, Benjamin von Bodungen, German Graduate School of Management and Law, Teresa Rodríguez de las Heras Ballell, Universidad Carlos III de Madrid, Ole Börger, Judge at the Oberlandesgericht at Bremen, Peter Winship, Southern Methodist University School of Law, Louise Gullifer, University of Oxford/Radboud University, Jeffrey Wool, Aviation Working Group, University of Washington School of Law, University of Oxford).

A second panel chaired by Anna Veneziano, Secretary-General of UNIDROIT ad interim, University of Teramo, dealt with UNIDROIT’s projects on contract farming, in particular its Legislative Guide, discussed by Henry Gabriel, Elon School of Law and Bruno Zeller, University of Western Australia.

In the following Athanassios Kaissis (Aristotle University and International Hellenic University of Thessaloniki) shortly presented the concept and the didactics of his LL.M. in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law, and the author of these lines did likewise on the semester abroad program of EBS University in Wiesbaden “EBS Law Term: Transnational Commercial Law”.

Chaired by Herbert Kronke, Hector Tsamis (PhD student of the International Hellenic University), Hannah Buxbaum (Indiana, Maurer School of Law), and Charles Mooney presented legal and regulatory approaches towards sustainable finance and sustainability reporting and securities disclosure regimes. It became clear that sustainability is being more and more supported on all levels including capital markets regulation (financial disclosure requirements) and corporate governance (non-financial accounting standards). The first day closed with an inspiring dinner speech by Roy Goode.

The second day focused on private law in general in respect to responsibilities, liabilities and litigation. On the first panel chaired by Hannah Buxbaum, Hans van Loon (Former Secretary-General of the Hague Conference) presented principles and building blocks for a global legal framework for civil litigation in environmental matters. He referred to international instruments bringing about a shift of paradigm such as e.g. the UN 2030 Agenda for Sustainable Development or the Ruggie Principles taken up more and more in strategic litigation such as the law suit against RWE in Germany by a Peruvian farmer at the city of Huaraz on the delictual responsibility for contributing to climate change and thus threatening the livelihood of the claimant. This case (see e.g. the report by the NGO Germanwatch) will be decided upon appeal by the Upper Regional Court of Hamm on 13 November 2017, a timely moment during the UN Climate Change Conference in Bonn. Jaap Spier (retired Advocate-General in the Supreme Court of the Netherlands, Universities of Amsterdam and Stellenbosch) continued the topic with a view on enterprise principles. Marc Loth (Tilburg University) drew some lessons from the Urgenda case, a Dutch case raising the issue of state liability for climate change (Urgenda Foundation v. The State of the Netherlands, see e.g. here) and Jan van Dunné, Erasmus University Rotterdam, analyzed liability issues in gas and coal mining for damages caused by soil subsidence, earthquake and subsoil water management under Dutch law. Finally, Tedd Moya Mose (PhD student of Queen Mary University of London), presented on international financing of renewable energy.

After a second interlude on didactics by Camilla Anderson (University of Western Australia) and Caslav Pejovic (Kyushu University), Athanassios Kaissis took the chair for the afternoon panel on dispute resolution. Pauline Ernst (Radboud University) and Gerard Meijer (NautaDutilh) presented on experiences from practice on arbitration and energy sector, both commercial and investor-state. Anna Marhold (Tilburg University) reported on dispute resolution mechanisms and the role of the industry in European regulatory agencies for energy. Vesna Lazic (Utrecht University) spoke about the “enforcement” of annulled arbitral awards in light of the Pemex and (one of the several) Yukos cases. Finally, the author of these lines presented on a recent type of cases in environmental litigation in which claimants seek to draw the foreign, in particular African, subsidiaries of European groups of companies into European courts in order not only to get damages but also to get injunctive relief against the subsidiary to stop them from further pollution or to have them taking measures immediately to protect the local population.

The primary example at the moment is Royal Dutch Shell and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria Ltd. In the UK, this is the case of Okpabi & Ors v Royal Dutch Shell Plc & Anor, [2017] EWHC 89 (TCC), 26 Jan 2017, appeal pending. Similar case against other UK parents are Lungowe & Ors v Vedanta Resources Plc & Anor, [2016] EWHC 975 (TCC), 27 May 2016, appeal dismissed 13 October 2017, [2017] EWCA Civ 1528, and AAA & Ors v Unilever Plc & Anor, [2017] EWHC 371 (QB), 27 February 2017. For the respective ligitation against Shell in the Netherlands see A.F. Akpan v. Royal Dutch Shell, plc, District Court of the Hague (Rechtbank), 30 January 2013, confirmed on the jurisdictional issues by the Court of Appeal (Gerechtshof) of the Hague, judgment of 17 December 2015). As opposed to most English decisions, the Dutch Court of Appeal signalled a willingness to further develop the applicable Nigerian tort law in light of (the similar) English law on the parent’s duties of care for its subsidiaries towards a liabililty, but the appeal on the merits is still pending. This evolving case law meets with legislative initiatives (e.g France, the Netherlands, Switzerland, EU in respect to conflict minerals) that seek to establish more clearly a direct delictual liability of the parent company that in turn is the key requisite for establishing “annex” jurisdiction (“forum connexitatis”) under a “real case” or proximity analysis for the foreign subsidiary located in third states to which Article 8 no. 1 Brussels Ibis Regulation does not apply, but rather the respective for a connexitatis under national jurisdictional law. Such forum connexitatis does not exist under German national procedural law which might be the explanation why this type of case has not arisen in Germany, but one might of course think of delictual jurisdiction for both the parent and the foreign subsidiary by mutual attribution of delictual actions as joint tortfeasors, a concept that is interpreted broadly under section 32 German Code of Civil Proceudre but of course again requires such a delictual claim against the parent under the applicable tort law in the first place.

After some input on space law by Frans van der Dunk (University of Nebraska-Lincoln, College of Law) the conference was closed by Dean Steven Bartels. The conference expressed its gratitude and appreciation to him and in particular to Thomas Keijser and his splendid team for inviting the 9th TCL Teachers’ Meeting to Radboud University and for the great hospitality of one of the best universities of the country (at [one of?] the oldest cities in what is today the Netherlands and a Member of the Hanse, i.e. the Hanseatic League, as of 1402).

La personne faisant l’objet d’un mandat d’arrêt européen, mise en examen et placée sous contrôle judiciaire dans le cadre d’une procédure concomitante en France, peut être provisoirement détenue sans que la durée de cette mesure présentencielle ne soit déraisonnable.

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The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has issued a Preliminary Explanatory Report on the draft Convention on Judgments (Preliminary Document No 7 of October 2017) in both English and French for the attention of the Special Commission meeting of November 2017 on the Recognition and Enforcement of Foreign Judgments.

The Preliminary Explanatory Report was prepared by Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain, and Geneviève Saumier, McGill University, Canada.

More information relating to the meeting is available at https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission/.  As is evident from the Information Documents currently listed (some of which are available), the meeting will deal in particular with intellectual property rights and the extent to which they should be included in the scope of the draft Convention.

By way of comparison, it should be noted that intellectual property rights were discussed at length during the meetings of the Hague Convention of 30 June 2005 on Choice of Court Agreements (see Articles 2 n) and o) and 10(3)) and eventually, Article 21). This was, in my view, a good compromise.

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

Rubrique : à venir

Hart Publishing Ltd. (UK) has just announced the release of Cross-Border Litigation in Europe, edited by Paul Beaumont, Mihail Danov, Katarina Trimmings and Burcu Yüksel (ISBN 9781782256762, £90.00). The following description is drawn from the publisher’s flyer:

“This substantial and original book examines how the EU Private International Law (PIL) framework is functioning and considers its impact on the administration of justice in cross-border cases within the EU. It grew out of a major project (ie EUPILLAR: European Union Private International Law: Legal Application in Reality) financially supported by the EU Civil Justice Programme. The research was led by the Centre for Private International Law at the University of Aberdeen and involved partners from the Universities of Freiburg, Antwerp, Wroclaw, Leeds, Milan and Madrid (Complutense).
The contributors address the specific features of cross-border disputes in the EU by undertaking a comprehensive analysis of the Court of Justice of the EU (CJEU) and national case law on the Brussels I, Rome I and II, Brussels IIa and Maintenance Regulations. Part I discusses the development of the EU PIL framework. Part II contains the national reports from 26 EU Member States. Parts III (civil and commercial) and IV (family law) contain the CJEU case law analysis and several cross-cutting chapters. Part V briefly sets the agenda for an institutional reform which is necessary to improve the effectiveness of the EU PIL regime. This comprehensive research project book will be of interest to researchers, students, legal practitioners, judges and policy-makers who work, or are interested, in the field of private international law.”

For further details, please click here.

Dans une affaire concernant l’Allemagne et l’implication alléguée d’un homme d’affaires dans le crime organisé, la Cour européenne des droits de l’homme (CEDH) estime que le refus de retrait d’un article de presse n’a pas enfreint l’article 8 de la Convention dès lors que les juridictions nationales ont ménagé un juste équilibre entre les intérêts en présence.

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Au théâtre Hébertot, jusqu’au 7 janvier 2018, Charles Tordjman signe une remarquable mise en scène d’une grande finesse de la célébrissime pièce de Reginald Rose, à partir d’une nouvelle adaptation de Francis Lombrail. Grâce à l’excellent jeu des douze acteurs, la tension qui caractérise ce texte est particulièrement palpable.

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Attention scholars of international law: The registration for the 2018 summer courses of The Hague Academy of International Law has opened. Over the years, thousands of students and professionals have come to the Peace Palace in The Hague to acquire a deeper understanding of Public International Law and Private International Law. Have a look at the program here:

https://www.hagueacademy.nl/…/up…/2013/11/PROGRAMME-2018.pdf

And register here:

https://www.hagueacademy.nl/registration-forms/

Les articles 8 et 14 de la Convention européenne des droits de l’homme n’interdisent pas à un État de réserver le « partenariat civil » aux couples homosexuels.

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Cette cassation vient s’ajouter à une liste déjà longue d’arrêts dans lesquels la chambre criminelle censure les décisions des juges du fond qui condamnent une personne morale sans identifier l’organe ou le représentant qui a commis l’infraction pour son compte. 

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Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?

The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.

According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).

Whereas the Court of Cassation ruled that the reserved portion is mandatory in internal matters, the question of its imperative nature in international cases was yet unclear. Authors disagree. While some consider that the réserve héréditaire cannot be considered as such as part of French ordre public international, others consider that due to the fact that it is an expression of solidarity among family members as well as a guarantee of equality between heirs, it has to be part of French international public policy.

The controversy was aggravated in 2011 when the Conseil Constitutionnel condemned le droit de prélèvement for amounting to a discrimination based on nationality. The droit de prélèvement is another specific French mechanism. It allows French heirs that have been deprived of the reserved portion from the assets located abroad to deduct the equivalent of such reserved portion from the part of the deceased’s assets that are located in France. As a consequence of this decision, the reserved portion remained the only protection for heirs from the risk of disinheritance.

However, in both decisions, the Court found that the mere fact that the foreign law does not provide for a mechanism such as the reserved portion does not amount to a violation of French international public policy. The foreign law could nevertheless be disregarded, but only if its concrete application in a specific case leads to a situation that would be incompatible with French essential principles.

Giving the particulars circumstances of the cases, the Court found that in both cases the application of Californian law was not contrary to French public policy. First, the Court outlined that the deceased had lived in California for over thirty years and that most of their assets were located there. As a consequence, both situations were not strongly connected to the French forum. Then, the Court pointed out that the children living in France were adults and that their economic situation will not suffer from their being deprived of the succession.

These observations lead the Court to consider that, in these situations, the Californian law is not contrary to French international public policy even though it does not provide for a reserved portion. The Court emphasis on the particular circumstances of the case, namely that the situation was mainly located in California and that none of the claimants was in need or economically instable, indicates that these circumstances weighed strongly on the outcome. It does not exclude that, in different circumstances, a foreign law that would not provide for a reserved portion could be dismissed as contrary to public policy.

Prior to the coming into force of the Succession Regulation, the solution appears in accordance with its public policy provision. Stating that courts could only refuse to apply provisions that are manifestly incompatible with the forum’s international public policy, Article 35 allows that foreign laws be disregarded when their application could lead to serious consequences. It does not appear to be the case in the present situations.

The new discussed question is now: In which case the application of a foreign law not including a reserved portion could lead to a situation incompatible with French essential principles?