Agrégateur de flux

Uber - Working contract

Daniel Girsberger, Thomas Kadner Graziano and Jan L. Neels are the editors of Choice of Law in International Commercial Contracts, which has been published by Oxford University Press in the Oxford Private International Law Series.

The blurb reads as follows.

Although the possibility of making a choice of law in respect of international commercial contracts has become widely accepted, national law still diverges in many respects with regard to the scope and relevance of, and the limitations on, party autonomy, leading to uncertainty in international commercial relations. This book compares the Hague Principles on Choice of Law in International Commercial Contracts (2015) with national, regional, supranational, and international rules on choice of law around the world in order to chronicle the divergent approaches which exist today.

The work is introduced by a comprehensive comparative report which sets out the similarities and differences between the featured national, regional, supranational, and international rules, comparing such rules with those of the Hague Principles, thereby initiating a discussion on further harmonization in the field. Another report focuses on the application of the Hague Principles in the context of international commercial arbitration. Dedicated chapters analyse the Hague Principles from a historical, theoretical, and international organizational point of view. Finally, examining each jurisdiction in detail, the book presents sixty national and regional article-by-article commentaries on the Hague Principles written by experts from all parts of the world. This dedicated and in-depth global comparative study of national, regional, supranational, and international rules provides a definitive reference guide to the key principles in respect of choice of law for international commercial contracts.

A webinar will take place on 4 May 2021 at 2 pm CEST to launch the book. Prior registration (here) is required.

See here for more information on the book.

With a comprehensive and informative manuscript, in International Commercial Arbitration in the European Union – Brussels I, Brexit and Beyond (Edward Elgar, 2020, 320 pp.: see here a previous announcement of the publication) Chukwudi Ojiegbe provides a wide-ranging overview of the status quo of international commercial arbitration in the European Union, also duly taking into account the effects arising, in this specific area of the law, from the withdrawal of the United Kingdom from the European Union.

By means of a detailed historical and policy-oriented reconstruction, the Author assesses the history of the Brussels I Recast as it pertains to the provision on the arbitration exclusion. With careful analysis, he considers the implications of the nuanced and debated interface between arbitration and litigation in accordance with the Brussels I Regime as well as the consequences of such interface for the EU exclusive external competence in aspects of international commercial arbitration. Against this background, and further contributing to this complex area of the law, he sets out the findings on the impact of the United Kingdom’s withdrawal from the European Union.

In anticipation of a possible future recast of the Brussels I Regime, the Author argues in favour of the inclusion of specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation in favour of the arbitral tribunal. As he observes, the coordination between the jurisdiction of the courts of the Member States and arbitral tribunals would increase legal certainty, alleviating the problem of parallel court/arbitration proceedings and the risk of conflicting decisions.

Overall, this volume contributes clarity and advances the academic debate on the EU arbitration/litigation interface. By offering clear historical reconstructions and putting forth solutions to this longstanding problem, it will undoubtedly prove to be of interest to scholars and practitioners but it will also be a useful source for students who wish to deepen their understanding of this area of the law.

Under the coordination of Gustavo Ferraz de Campos Monaco, the Faculty of Law of the University of São Paulo is hosting its 1st Conference on Private International Law.

For all those interested in submitting papers or attending the conference, further information in English is available here.

Another treat for German-reading friends and colleagues of CoL: On the occasion of Erik Jayme’s 85th birthday on 7th June 2019, Martin Gebauer and Stefan Huber, both at the University of Tübingen (one of the few „Universities of Excellence“ in Germany), convened the symposium “Politisches Kollisionsrecht: Sachnormzwecke, Hoheitsinteressen, Kultur”. Friends and colleagues, many of them originating academically from the University of Heidelberg (another one of the few „Universities of Excellence“) and its Institute for Comparative Law, Conflict of Laws and International Business Law, or with close ties to this place, gathered. The book that emerged from this inspiring event collects the prints of the presentations and includes fascinating contributions. Martin Gebauer, for example, deconstructs the myth of “classical” private international law in an eye-opening historical analysis, and Stefan Huber deals with the interplay, and symptomatic antinomies, of substantive law objectives and notions of procedural justice in relation to heads of jurisdiction for the protection of weaker parties under the Brussels regime. The volume is wrapped up by an introduction rich of insights and thoughts by Gebauer and Huber on “Politisches Kollisionsrecht” and by wonderful “news from the academic world” by Erik Jayme in which he shares memories and anecdotes from his rich life as one of the most renowned scholars of private international law worldwide. Highly recommended!

The Spanish online journal Cuadernos de Derecho Transnacional, edited by the University Carlos III of Madrid under the directorship of Professors Calvo Caravaca and Castellanos Ruiz, and bearing the quality seal of the Spanish Foundation for Science and Technology (FECyT), has just released the first issue of 2021 (volume 13).

As usual, the journal is composed of four sections: Estudios (in-depth scientific analysis of topics related to Private International law, Uniform law and Comparative law); Varia (comprising shorter studies and notes on case law); Congresos; and Reseñas (book reviews). The whole content is open-access.  Most of the contributions of this issue are written in Spanish, all of them with a summary in English.

Under the heading Estudios the current issue comprises 27 articles. Among the many topics addressed are the following: Brexit and its impact for cross-border litigation in contractual and insolvency matters; family law, in particular in relation to child abduction (but not only); the protection of personality rights in cross-border settings; Covid-19 and its legal consequences on international contracts; competition law (commercial practices based on big data and algorithms, but also the liability of subsidiaries for antitrust infringements of the parent company); legal and bioethical implications of artificial intelligence; smart contracts and lex cryptographia.

Under Varia, this issue of CDT compiles notes to all recent decisions of the CJEU on PIL – maintenance, successions, contract and tort-, together with annotations to Spanish decisions on appeal or second appeal addressing PIL issues.

The second issue will be published in October; contributions should follow the guidelines for authors and are accepted until June. All submissions are peer reviewed.

For German-speaking conflict of law friends, especially those with a strong interest in its procedural perspective (and this seems to apply to almost all of them by now, I guess), the year 2021 has begun beautifully, as far as academic publications are concerned. Two fantastic textbooks were released, one on European civil procedural law, and one on international civil procedural law:

After more than ten years the second edition of Burkhard Hess’s 2nd edition of  his textbook on „Europäisches Zivilprozessrecht“ is now on the table, 1026 pages, a plus of nearly 300 pages and now part of the renowned series „Ius Communitatis“ by DeGruyter. It is a fascinating account of the foundations („Grundlegung“, Part 1, pp. 3 – 311) of European civil procedure as well as a sharp analysis of the instruments of EU law („Europäisches internationales Zivilprozessrecht“, Part 2, pp. 313 – 782). Part 3 focuses on the interplay between autonomous and European procedural law (pp. 783 – 976). Extensive tables of the cases by the ECJ and the ECtHR as well as a large subject index help to access directly the points in question. The foreword rightly points out that European civil procedural law has reached a new phase. Whereas 10 years ago, the execution of the agenda under the then still new competency in (now) Article 81 TFEU was at issue, today enthusiasm and speed have diminished. Indeed, the ECJ had to, and still has to, defend „the fundamental principles of EU law, namely mutual trust and mutual recognition, against populist attacks and growing breaks of taboos by right-wing populist governments in several Member States“ (Foreword, p. 1, translation here and all following ones by myself; see also pp. 93 et seq. on the struggle for securing independence of the national judge in Hungary and Poland as a matter of the EU‘s fundamental values, Article 2 TEU). At the same time, the EU legislator and the ECJ had shown tendencies towards overstreching the legitimatory potential of the principle of mutual trust before the EU returned to „recognition with open eyes“ (as is further spelled out at para. 3.34, at p. 119), as opposed to blind trust – tendencies that worried many observers in the interest of the rule of law and a convincing balancing of the freedom of movement for judgments and other juridical acts. The overall positive view by Hess on the EU’s dynamic patterns of judicial cooperation in civil matters, combined with the admirable clarity and comprehensiveness of his textbook, will certainly contribute considerably to address these challenges.

Equally admirable for its clarity and comprehensiveness is Haimo Schack’s 8th edition of his textbook on „Internationales Zivilverfahrensrecht“, including international insolvency and international arbitration, 646 pp., now elevated from the „short textbook series“ to the „large textbook series“ at C.H.Beck. The first part addresses foundations of the subject (pp. 1 – 68), the second part describes the limits of adjudicatory authority under public international law (pp. 69 – 90), the third part analyses all international aspects of the main proceedings (pp. 91 – 334), the fourth part recognition and enforcement (pp. 335 – 427), the fifth and sixth part deal with insolvency (pp. 428 – 472) and arbitration (pp. 473 – 544). Again, an extensive table of cases and a subject index are offered as valuable help to the user. Schack is known for rather sceptical positions when it comes to the narrative of mutual trust. In his sharp analysis of the foundations of international procedural law, he very aptly states that the principle of equality („Gleichheit“) is of fundamental relevance, including the assumption of a principal equivalence of the adminstrations of justice by foreign states, which allows trust in and integration of foreign judicial acts and foreign laws into one’s own administration of justice: „Auf die Anwendung eigenen Rechts und die Durchführung eines Verfahrens im Inland kann man verzichten, weil und soweit man darauf vertraut, dass das ausländische Recht bzw. Verfahren dem inländischen äquivalent ist“ (We may waive the application of our own law and domestic proceedings because and as far as we trust in the foreign law and the foreign proceedings are equivalent to one’s own, para. 39, at p. 12) – a fundamental insight based, inter alia, on conceptual thinking by Alois Mittermaier in the earlier parts of the 19th century (AcP 14 [1831], pp. 84 et seq., at pp. 95, justifying recognition of foreign judgments by the assumption that the foreign judge should, in principle, be considered „as honest and learned as one’s own“), but of course also on Friedrich Carl v. Sagigny, which I allowed myself to further substantiate and transcend elsewhere to the finding: to trust or not to trust – that is the question of private international law (M. Weller, RdC, forthcoming). In Schack’s view, „the ambitious and radical projects“ of the EU in this respect „fail to meet with reality“ (para. 126, at p. 50). Equally sceptical are his views on the HCCH 2019 Judgments Convention („Blütenträume“, para. 141, at p. 57, in translation something like „daydreams“).

Perhaps, the truth lies somewhere in the middle, namely in a solid „trust management“, as I tried to unfold elsewhere.

The public policy exception is used as a shield to protect fundamental domestic values in case of a contradiction between the applicable foreign law and fundamental principles of justice of the forum. Alongside the public policy exception, the instrument of “overriding mandatory provisions” – or “public policy rules” – was established in the middle of the 20th century and is today codified in many acts of European Private International Law (see e.g. Article 9 of the Rome I Regulation). Overriding mandatory provisions are rules of outstanding importance for public order, which the legislator intends to be respected even where a case is governed by foreign law under ordinary conflict-of-laws rules.

The Book

In his PhD thesis Die Methodik der ‘Eingriffsnorm im modernen Kollisionsrecht, published in German and recently honoured with the prestigious Gerhard Kegel Prize, Adrian Hemler describes the problem of applying of overriding mandatory provisions as a symptom of numerous fundamental uncertainties in the doctrines of PIL. In his view, the theory of overriding mandatory provisions obscures the fact that PIL needs further differentiation through conflicts-of-laws rules yet to be developed. Based on this, he sees the function of the public policy exception as a safeguard of the supremacy of constitutional law. In sum, he traces overriding mandatory provisions back to the well-known principle lex specialis derogat legi generali, while also basing the public policy exception on the principle lex superior derogat legi inferiori.

Flash Back

The thesis opens with an in-depth historical analysis. Hemler points out that the distinction between the “positive” enforcement of individual rules through overriding mandatory rules on the one hand and the “negative” protection of fundamental principles through the public policy exception on the other hand has not been made until the second half of the 20th century. In addition, he shows how overriding mandatory provisions have been gradually isolated as rules that seemingly do not fit into the ordinary system of “neutral” conflicts-of-laws rules.

Overriding Mandatory Rules and Public Law

Hemler demonstrates that the isolation of overriding mandatory provisions arises from the tendency to implicitly identify these rules with national public law. He shows how this equation leads to the application of principles (seemingly) governing conflicts of public law rules. Up to now, it was widely assumed that the application of foreign public law would impossible, as it would amount to allowing a foreign state to exercise power on the national territory of another. Hemler criticises this assumption by explaining the general methodology of conflicts-of-laws rules. Following a theory developed by Boris Schinkels, he divides each legal rule analytically into a “rational” and an “imperative” element. The rational element describes a universal idea needed for the proper resolution of a legal conflict. An example of the rational element is the written form requirement for certain contracts, e.g. those concerning the transfer of land. The imperative element, in contrast, describes the state’s order to apply the rule. In the example of the written form requirement, the imperative element would be the legislator’s intent relating to the enforcement of the requirement to all land situated on its country’s territory.

Within this structure of legal provisions, Hemler views the position of autonomous conflicts-of-laws rules as follows: Since citizens have a right to decide for themselves which rules are to be applied in their country, its courts cannot just bow to the will of another state. On the other hand, it would go too far to exclude the application of foreign law altogether. Rather, the forum issues its own imperative command regarding any rules of foreign law, which leads to the exclusive applicability of the foreign rule’s rational element. The disregard of the foreign imperative is a direct consequence of the modern, autonomous structure of conflicts of laws. Hence, courts only transpose the foreign “idea of what ought to be” without any elements of foreign sovereignty. This isolated application of the foreign rational element and its combination with a domestic imperative element leads to the creation of a domestic legal norm with a foreign ratio (a “synthesised” legal norm, so to speak).

Since the applied foreign rational element is stripped of any element of the exercise of foreign sovereignty, Hemler argues that the application of foreign law does not conflict with the sovereignty of the court’s country or that of a third country whose law is applicable under ordinary rules of private international law. Hence his conclusion that courts may apply foreign public law without any restrictions, especially without the need of the foreign law being “neutral” or “pre-state”.

No Need for Special Conflicts Rules Regarding Overriding Mandatory Provisions

Going further, Hemler shows that there are no convincing reasons to treat overriding mandatory provisions differently from other norms. In particular, he opines that these provisions do not call for a separate system of conflicts-of-laws rules. Hemler shows that the whole category of overriding mandatory provisions can be dispensed with and that one should instead focus on the development of a more differentiated set of conflicts-of-laws rules. He explains in detail how such special conflicts-of laws-rules are to be developed.

A New Understanding of the Public Policy Exception

His findings allow Hemler to shed also some light on the public policy exception. Given that every application of foreign law leads to a synthesised legal norm of the forum, he concludes that the public policy exception can actually be understood as a constitutional control device regarding “synthesised” law. In Hemler’s view, such an understanding facilitates the inclusion of numerous new phenomena into the methodology of private international law.

Conclusion

As this short overview demonstrates, this is a though-provoking book. Overriding mandatory provisions have so far played the role of a black box in private international law. After many failed attempts to “domesticise” these rules, this is the most serious theory to integrate these rules into the edifice of conflict-of-laws theory. Particularly striking is the breadth of the author’s perspective, which is not limited to overriding mandatory rules, but also includes the role of constitutional law, public law in general as well as the public policy exception. For the interested reader, this book is a good reason to brush up their German or start to learn it!

The Court of Justice delivered today its judgment in Case C‑729/19 (TKF v Department of Justice for Northern Ireland), which is about the Maintenance Regulation:

“1. Article 75(2)(a) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as applying only to decisions given by national courts in States which were already members of the European Union on the date of adoption of those decisions.

2. Regulation No 4/2009 must be interpreted as meaning that no provision of that regulation enables decisions in matters relating to maintenance obligations, given in a State before its accession to the European Union and before the date of application of that regulation, to be recognised and enforced, after that State’s accession to the European Union, in another Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239895&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8777055

Advocate General Tanchev delivered today his opinion in case C‑508/19 (M.F. v J.M., joined parties: Prokurator Generalny, Rzecznik Praw Obywatelskich), which is about the Rule of Law:

“The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that, in circumstances such as those of the main proceedings, a person appointed to the position of judge of the Sąd Najwyższy (Supreme Court), Disciplinary Chamber, does not comply with that requirement if his act of appointment was delivered in flagrant breach of national rules governing the procedure for the appointment of judges of the Supreme Court, which is a matter for the referring court to establish. In the context of that assessment, the referring court must appraise the manifest and intentional character as well as the gravity of the breaches in question.

The second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter must be interpreted as meaning that a court chamber does not constitute an independent and impartial tribunal, within the meaning of those provisions, when the objective conditions in which it was created, its characteristics as well as the manner of appointment of its members are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

In such a situation, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply national law provisions which reserve jurisdiction to rule on actions, such as the one in the main proceedings, to such a chamber, so that those actions may be examined by a court which fulfils the requirements of independence and impartiality referred to above and which would have jurisdiction were it not for those provisions”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=239898&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=3157544

Rendez-vous lundi 26 avril.

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Une personne détenue en vue de l’exécution d’un mandat d’arrêt européen relève de l’article 5, § 1, f) de la Convention européenne des droits de l’homme, de sorte que la chambre de l’instruction, saisie du contentieux de l’exécution d’un tel mandat aux fins de poursuites, n’a pas à s’assurer de l’existence d’indices graves ou concordants à l’encontre de la personne recherchée.

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Le Parquet européen, nouvel organisme chargé de lutter contre la grande criminalité transfrontière portant atteinte au budget de l’Union européenne, devrait commencer ses activités le 1er juin 2021, selon un communiqué publié le 7 avril dernier.

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Thank you indeed Gilles Cuniberti for flagging and discussing the end of March decision (Press Release only) by the Paris Court of First Instance in which it held that an action against an arbitrator for damages following his failure to disclose a conflict of interests, which led to the annulment of the award, fell within Brussels Ia despite its arbitration exception.

I have more sympathy for the decision than Gilles. At the very least I am not surprised national courts should be confused about the demarcation. Brussels Ia inserted the Smorgasbord of confusion following West Tankers, by collating an even prima facie conflicting array of ins and outs in its recital 12. Even before the entry into force of Brussels Ia, Cooke J in Toyota v Prolat held that recital 12 is of no use. Other than in fairly straightforward cases such as Premier Cruises v DLA Piper Russia, good argument might exist on many conceivable cases.

Deciding the demarcation with help from the New York Convention itself (one might have suggested that what is included in New York, should not be included in Brussels Ia) does not help in the case at issue for as ia Tadas Varapnickas notes, Uncitral and New York are silent on the status of the arbitrator.

Assuming BIa applies, there must be little doubt there is a contractual relation, even between the arbitrator and the party who did not appoint her or him, in the BIa Article 7(1) sense, following CJEU flightright.

Curial seat was Paris, yet hearings and deliberations had taken place in Germany. Forum contractus as a provision of services was held to have been Germany.

This is where Burkhard Hess, at the request of Gilles, took over: Burkhard further discusses the findings on arbitration, agrees with Germany as the forum contractus per ia CJEU Wood Floor Solutions, and suggests (see similarly Mann J in Philips v TCL) the German courts are bound by the Paris’ court’s findings per CJEU Gothaer.

Much relevant. I do not know whether appeal is being sought.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff.;

Consorzio Italian Management e Catania Multiservizi et Catania Multiservizi
DFON
Selon l’avocat général Michal Bobek, la Cour devrait revoir sa jurisprudence (les critères Cilfit) sur l’obligation de renvoi préjudiciel qui incombe aux juridictions nationales statuant en dernier ressort

FBF
Droit institutionnel
Selon l’avocat général Bobek, la Cour devrait déclarer invalides les orientations sur les modalités de gouvernance et de surveillance des produits bancaires de détail de l’Autorité bancaire européenne