La Cour européenne des droits de l’homme (CEDH), par un arrêt du 30 janvier, a condamné la France pour les conditions inhumaines et dégradantes de ses établissements pénitentiaires et le non-respect du droit à un recours effectif pour faire cesser ces atteintes.
The first 2020 issue RabelsZ has just been released. It features the following articles:
Magnus, Robert, Unternehmenspersönlichkeitsrechte im digitalen Raum und Internationales Privatrecht (Corporate Personality Rights on the Internet and the Applicable Law), pp. 1 et seq
Companies can defend themselves against defamatory and business-damaging statements made on the internet. German case law in this area is based primarily on the concept of a corporate right relating to personality, which has some similarities but also important differences to the personality rights of natural persons. A corresponding legal right is also recognised in European law. However, determining the applicable law for these claims proves to be difficult. First of all, it is an open though not yet much-discussed question whether the exception in Art. 1(2) lit. g Rome II Regulation for “violation[s] of privacy or personal rights” is limited to the rights of natural persons or whether it applies also to the corresponding claims of legal entities. Moreover, the determination “of the country in which the damage occurs” in accordance with Art. 4(1) Rome II Regulation is hotly debated with respect to violations of rights relating to personality, especially when the violations were committed via the internet. The thus far prevailing mosaic principle produces excessively complex results and therefore makes it unreasonably difficult to enforce the protected legal position. This article discusses alternative concepts for the determination of the applicable law for these actions and analyses the scope and background of the exception in Art. 1(2) lit. g Rome II Regulation.
Thon, Marian, Transnationaler Datenschutz: Das Internationale Datenprivatrecht der DS-GVO (Transnational Data Protection: The GDPR and Conflict of Laws), pp. 24 et seq
This article analyses the territorial scope of the new General Data Protection Regulation (GDPR) and addresses the question whether Article 3 GDPR can be considered as a conflict-of-law rule. It analyses the possibility of agreements on the applicable law and argues that Article 3 GDPR qualifies as an overriding mandatory provision. It finds that the issue of the applicable national law is no longer addressed by the GDPR and that a crucial distinction should therefore be made between internal and external conflicts of law. It argues that the country-of-origin principle is the key to determining which national data protection law applies. Furthermore, the article analyses Article 3 GDPR in more detail from the perspective of private international law. It finds that the targeting criterion is helpful in mitigating the problem of information asymmetries in view of the applicable data protection law. However, it criticizes the establishment criterion because it puts European companies at a competitive disadvantage. Finally, the article proposes to incorporate a “universal” conflict-of-law rule into the Rome II Regulation which should be accompanied by a general conflict-of-law rule specifically addressing violations of privacy and rights relating to personality.
Voß, Wiebke, Gerichtsverbundene Online-Streitbeilegung: ein Zukunftsmodell? Die online multi-door courthouses des englischen und kanadischen Rechts (Court-connected ODR: A Model for the Future? – Online Multi-door Courthouses Under English and Canadian Law), pp. 62 et seq
Will conflict management systems based on the model of companies such as eBay and PayPal soon become a part of civil proceedings before German state courts? Recently, some thought has been given to the development of a new “expedited online procedure” designed to provide an affordable and fast alternative to traditional civil litigation for small consumer claims, thus broadening access to justice. After a brief outline of the current barriers to the justice system and the shortcomings of the private ODR platforms consumers often turn to instead, this article explores the concept of online procedures which other legal systems have developed in response to similar challenges. The analysis of typical, trendsetting examples of e-courts – the Civil Resolution Tribunal under Canadian Law as well as the Online Court that is currently being established in England – reveals a new model of court-connected ODR that is based on the integration of private ODR structures into the justice system. By harnessing digital technologies and integrating methods of dispute prevention and consensual dispute resolution into the state-based proceedings, such online courts offer enormous potential for lay-friendly, accessible civil justice while at the same time using scarce judicial resources sparingly. On the other hand, online technology alone is not a panacea. Establishing online procedures in Germany poses challenges which go beyond the technical dimension. These procedures may conflict with constitutional requirements and procedural maxims such as the principle of open justice, the right to be heard before the legally designated court and the principle of immediacy. However, a well thought-out design and minor modifications of the English and Canadian models would avoid these conflicts without losing the benefits of the innovative procedure.
Monsenepwo, Justin, Vereinheitlichung des Wirtschaftsrechts in Afrika durch die OHADA (The Unification of Business Law in Africa Through OHADA), pp. 97 et seq
In the 1980s, legal and judicial uncertainty prevailed in most western and central African countries, thereby impeding local and foreign investments. To improve the investment climate and further legal and economic integration in Africa, fourteen western and central African States created the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (Organization for the Harmonization of Business Law in Africa, OHADA) on 17 October 1993. As per the preamble of the Treaty on the Harmonization of Business Law in Africa, OHADA aims to harmonize business laws in Africa through the elaboration and the adoption of simple, modern, and common business law regulations adapted to the economies of its Member States. Nearly two decades after its creation, OHADA has developed ten Uniform Acts and three main Regulations, which cover several legal areas, such as company law, commercial law, security interests, mediation, arbitration, enforcement procedures, bankruptcy, transportation law, and accounting. This article analyses the historical background, the institutions, and the main provisions of some of these Uniform Acts and Regulations. It also recommends a few legal areas which OHADA should make uniform to increase legal certainty and predictability in civil and commercial transactions in Africa.
Vente immobilière
Donation
Procédure civile
Symeon Symeonides compiled a bibliography, available on SSRN, of books and articles in English in the field of private international law published 2019.
This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles that appeared in print during 2019, or earlier but were not included in the 2018 bibliography. It does not include articles or essays published in books (as opposed to journals), or writings appearing only in electronic form.
A postdoctoral fellowship at the Faculty of Law at the Hebrew University is available for the academic year of 2020-2021. The position is part of the “Old Identities, New Times: Does the Common Legal Identity Withstand Modernity?”, a research project headed by Dr Sharon Shakargy and funded by the Israeli Science Foundation (grant 835/18).
The research project deals with items of personal status, such as age, sex, religion, marital status, parenthood, legal capacity, and the changes in the regulation and perception thereof. The project investigates these items of personal status comparatively, focusing on Western legal systems but not limited to them. More details on the project are available here.
Scholars interested in perusing independent work related to the questions mentioned above are invited to apply.
Qualifications:
Position Details:
Interested applicants should submit a 2-page long research proposal, their CV and publication list, and 1-2 letter(s) of recommendation to Sharon.Shakargy@mail.huji.ac.il by March 15, 2020. Please indicate “postdoc position” in the subject line.
The University of Milan announces the first edition of the Master Programme on International Trade Compliance Control (IntTradec) to be held in Milan at the Department of International, Legal and Historical-Political Studies,
The Programme aims to train professional figures called to work within the Export Control Program, with a specific focus on International Trade Law, Private International Law, Customs Law and Tax Law. It includes teaching activities and workshops for a total of 500 hours, and a training period of 300 hours.
More information is available here (in Italian).
Director: Prof. Angela Lupone, University of Milan
Scientific Committee: Prof. Giovanna Adinolfi (UNIMI), dr. Cristian Battistello (consulente aziendale), prof. Andrea Carati (UNIMI), dr. Maurizio Castello, dr. Antonio Ciavatta (Baker Hughes), dr. Simone Dossi (UNIMI), prof. Manlio Frigo (UNIMI), prof. Alessandra Lang (UNIMI), prof. Laurent Manderieux (Università Bocconi), dr. Luca Moriconi (adjunct prof.), avv. Marco Padovan (Padovan Law Firm), dr. Marco Piredda (ENI S.p.a.), prof. Marco Pedrazzi (UNIMI), prof. Francesca Villata (UNIMI).
Stages and internships: Baker Hughes, Nuovo Pignone International S.r.l., Banca Popolare di Sondrio, Caleffi Hydronic Solutions, Comecer S.p.a., Elantas Europe S.r.l; Fratelli Cosulich S.p.a.; Modo Customs Services S.r.l.; Omal S.p.a., Sabaf S.p.a., StMicroelectronics S.r.l, Studio Legale Padovan (Milano).
Contacts: direzione.intgiurpol@unimi.it
Deadline: 3 February 2020 (2 p.m.) with possibility of extention.
Lydia Lundstedt and Erik Sinander (both Stockholm University) have published Enhancing Critical Thinking in Private International Law in The Law Teacher.
The abstract reads:
This article describes and evaluates the reforms that the authors (as course managers) introduced to enhance critical thinking in the compulsory course on private international law in the Master of Laws programme at Stockholm University. The reforms were made in response to a decision by the Stockholm University Law Faculty Board to develop the “Stockholm Model” in an effort to strengthen students’ critical and scientific approach to law. The Stockholm Model aims to place law in a broader context so students can understand its relation to and impact on society. It also shifts the focus from an orthodox teaching of the doctrinal subject areas to facilitating the students’ ability to apply legal and other social science methods to analyse and develop the law. The article evaluates the success of the measures and reflects on what more can be done to improve critical thinking.
The article can be read here.
Si, en application du règlement Rome II, en matière non contractuelle, la victime peut agir directement contre l’assureur du responsable si la loi applicable, à l’obligation non contractuelle ou au contrat d’assurance, le prévoit, le régime juridique de l’assurance est soumis à la loi de ce contrat.
Par un arrêt du 19 décembre 2019, la Cour de justice de l’Union européenne se prononce sur l’étendue de l’office du juge dans la procédure européenne d’injonction de payer.
Le défaut de délivrance d’un permis de communiquer entre une personne détenue et son avocat, avant un débat contradictoire différé organisé en vue d’un éventuel placement en détention provisoire, fait nécessairement grief à la personne mise en examen.
Contrat de travail à durée déterminée
Succession
Statuts collectifs du travail
by José Antonio Briceño Laborí, Professor of Private International Law, Universidad Central de Venezuela y Universidad Católica Andrés Bello
In 2019 the Venezuelan Private International Law (hereinafter “PIL”) academic community made clear that, despite all the difficulties, it remains active and has the energy to expand its activities and undertake new challenges.
As an example of this we have, firstly, the different events in which our professors have participated and the diversity of topics developed by them, among which the following stand out:
However, this year’s three most important milestones for our academic community occurred on Venezuelan soil. Below we review each one in detail:
The Venezuelan PIL Act, the first autonomous legislative instrument on this subject in the continent, entered into force on February 6, 1999 after a six months vacatio legis (since it was enacted in the Official Gazette of the Republic of Venezuela on August 6, 1998).
This instrument has a long history, as its origins date back to the Draft Law on PIL Norms written by professors Gonzalo Parra-Aranguren, Joaquín Sánchez-Covisa and Roberto Goldschmidt in 1963 and revised in 1965. The Draft Law was rescued in 1995 on the occasion of the First National Meeting of PIL Professors. Its content was updated and finally a new version of the Draft Law was sent by the professors to the Ministry of Justice, which in turn sent it to the Congress, leading to its enactment (for an extensive overview of the history of the Venezuelan PIL Act and its content, see: Hernández-Bretón, Eugenio, Neues venezolanisches Gesetz über das Internationale Privatrecht, IPRax 1999, 194 (Heft 03); Parra-Aranguren, Gonzalo, The Venezuelan Act on Private International Law of 1998, Yearbook of Private International Law, Vol. 1 1999, pp. 103-117; and B. de Maekelt, Tatiana, Das neue venezolanische Gesetz über Internationales Privatrecht, RabelsZ, Bd. 64, H. 2 (Mai 2000), pp. 299-344).
To celebrate the 20th anniversary of the Act, the Private International and Comparative Law Professorship of the Central University of Venezuela and the “Tatiana Maekelt” Institute of Law with the participation of 7 professors and 9 students of the Central University of Venezuela Private International and Comparative Law Master Program.
All the expositions revolved around the Venezuelan PIL Act, covering the topics of the system of sources, vested rights, ordre public, in rem rights, consumption contracts, punitive damages, jurisdiction matters, international labour relations, recognition and enforcement of foreign judgements, transnational provisional measures and the relations between the Venezuelan PIL Act and international arbitration matters. The conference was both opened and closed by the professor Eugenio Hernández-Bretón with two contributions: “The Private International Law Act and the Venezuelan university” and “The ‘secret history’ of the Private International Law Act”.
On the occasion of the XVIII National Meeting of Private International Law Professors, the Private International and Comparative Law Master’s Degree Program of the Central University of Venezuela launched its website and the first issue of its yearbook. This specialized publication was long overdue, particularly in the Master’s Program context which is focused on educating and training researchers and professors in the areas of Private International Law and Comparative Law with a strong theoretical foundation but with a practical sense of their fields. The Yearbook will allow professors, graduates, current students and visiting professors to share their views on the classic and current topics of Private International Law and Comparative Law.
This first issue included the first thesis submitted for a Master’s Degree on the institution of renvoi, four papers spanning International Procedural Law, electronic means of payment, cross-border know-how contracts and International Family Law, sixteen of the papers presented during the Commemoration of the Twentieth Anniversary of the Venezuelan Private International Law Act’s entry into force, and two collaborations by Guillermo Palao Moreno and Carlos Esplugues Mota, professors of Private International Law at the University of Valencia (Spain), that shows the relation of the Program with visiting professors that have truly nurtured the students’ vision of their area of knowledge.
The Call of Papers for the 2020 Edition of the Yearbook is now open. The deadline for the reception of contributions will be April 1st, 2020 and the expected date of publication is May 15th, 2020. All the information is available here. The author guidelines are available here. Scholars from all over the world are invited to contribute to the yearbook.
On December 3rd, 2019 was launched a book to pay homage to Professor Eugenio Hernández-Bretón. Its magnitude (4 volumes, 110 articles and 3298) is a mirror of the person honored as we are talking about a highly productive and prolific lawyer, professor and researcher and, at the same time, one of the humblest human beings that can be known. He is truly one of the main reasons why the Venezuelan Private International Law professorship is held up to such a high standard.
The legacy of Professor Hernández-Bretón is recognized all over the work. Professor of Private International Law at the Central University of Venezuela, Catholic University Andrés Bello and Monteávila University (he is also the Dean of the Legal and Political Sciences of the latter), Member of the Venezuelan Political and Social Sciences Academy and its President through the celebration of the Academy’a centenary, the fifth Venezuelan to teach a course at The Hague Academy of International Law and a partner in a major law firm in Venezuela (where he has worked since his law school days) are just some of the highlights of his career.
The contributions collected for this book span the areas of Private International Law, Public International Law, Comparative Law, Arbitration, Foreign Investment, Constitutional Law, Administrative Law, Tax Law, Civil Law, Commercial Law, Labor Law, Procedural Law, Penal Law, General Theory of Law, Law & Economics and Law & Politics. The book closes with six studies on the honored.
The contributions of Private International Law take the entire first volume. It includes the following articles:
As we see, the contributions are not just from Venezuelan scholars, but from important professors and researchers from Latin America, USA and Europe. All of them (as well as those included in the other three volumes) pay due homage to an admirable person by offering new ideas and insights in several areas of law and related sciences.
The book will be available for sale soon. Is a must have publication for anyone interested in Private International Law and Comparative Law.
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