Agrégateur de flux

The latest issue of the Zeitschrift für Europäische Privatrecht has just been released. It contains the following articles:

Thomas Ackermann, Sektorielles EU-Recht und allgemeine Privatrechtssystematik

In the German tradition, private law is considered as a system of consistent rules that can be reduced to a unity formed by a small number of axioms. This idea has been the driving force behind huge efforts to overcome the fragmentation of EU private law. However, the concept of a private law system is unsuitable for a democratic polity whose supranational level is formed by the EU. Instead, the systematic quest for unity and consistency should aim at positioning private law rules in the entirety of our legal order. This leads to a better understanding of European legislation and case-law in the field of private law.

Jürgen Basedow, Sektorielle Politiken und allgemeine Privatrechtssystematik

Following Ackermann the author elaborates on the distinction of horizontal and vertical EU legislation. The problems caused by the latter aggravate by the increasing use of regulations (instead of directives) and by the progressive adoption of rules on liability in acts aiming at market regulation. The author advocates renewed work on a Common Frame of Reference and the creation of a unit within the Commission that would be tasked with the survey of coherence of provisions of the private law acquis.

Brigitta Lurger, Die Dominanz zwingenden Rechts – die vermeintlichen und tatsächlichen Schattenseiten des EU-Verbraucherschutzrechts

EU private law, in particular EU consumer law, has encountered heavy criticism: It was, for instance, accused of being one-dimensional – ie only market functional – or to transform contract law into a set of mostly inadequate or inefficient mandatory rules. The article analyses this criticism by creating links between several discourses: (behavioral) law and economics, paternalism, fundamental rights, competences, contract law versus regulatory law, and the conflict between self-interest and social responsibility.

Gerhard Wagner, Zwingendes Vertragsrecht

Modern contract law, as applied between businesses and consumers, operates in the form of mandatory law. This pattern dominates not only in Europe, but also in the United States. It is supported by strong normative reasons. However, it is time to rethink the relationship between mandatory law and court control over standard business terms: Court control over standard terms does better than mandatory law in reconciling consumer protection and private autonomy, and should thus be preferred.

Pietro Sirena, Die Rolle wissenschaftlicher Entwürfe im europäischen Privatrecht

The article deals with the projects of a European private law, which have been drafted in black letter rules, and their influence upon the laws of the Member States as well as that of the European Union. The author points out that a genuine European private law could not overlook the best developments of the national legal cultures, which have been flourishing in the last two centuries on the basis of the national codifications of civil law and the judge-made common law.

Reinhard Zimmermann: Die Rolle der wissenschaftlichen Entwürfe im europäischen Privatrecht

The creation of various sets of „model rules“, „restatements“, or „non-legislative codifications“, particularly concerning contract law, is one of the most remarkable phenomena in the field of comparative private law over the last fourty years. The present essay argues that one important function of these model rules is to facilitate the discussion of legal problems beyond national borders and thus to stimulate the development of a truly European legal doctrine. They can thus help to achieve what Professor Sirena in his lecture is aiming for.

Horst Eidenmüller: Collateral Damage: Brexit’s Negative Effects on Regulatory Competition and Legal Innovation in Private Law

This article attempts to assess the consequences of Brexit for English and European private law. More specifically, I am interested in how the level of legal innovation in private law will be influenced by Brexit. I argue that Brexit will reduce the level of efficiency-enhancing legal innovation in Member States’ and European private law. Brexit will eliminate the UK as a highly innovative competitor on the European market for new legal products in private law, reducing the beneficial effects of regulatory competition. Further, private law-making on the European level will no longer benefit from the UK’s efficiency-enhancing influence. I substantiate and illustrate the main thesis of this article with examples taken mostly from contract law and dispute resolution, company law and insolvency law.

Marc-Philippe Weller/Chris Thomale/Susanne Zwirlein, Brexit: Statutenwechsel und Acquis communautaire

The Brexit will have considerable consequences for international private and procedural law. From an individual point of view, there will be changes to the applicable law that can be managed with the methods of the PIL. At a general and abstract level, the shape of the acquis will change in several respects.

Lado Chanturia, Die Ausdehnung des Europäischen Privatrechts auf Drittstaaten am Beispiel Georgiens

Georgia signed an Association Agreement with the EU on 27.6.2014. According to the Association Agreement (AA) the reform of private law should be considered as further development of the Europeanization of Georgian law, which began in the early 1990s. The political decision in favor of the Europeanization of law is now turning into an obligation of legal harmonization. The pertinent areas as per the agreement are electronic commerce, intellectual property rights, competition, company law, accounting and auditing, corporate governance and consumer policy.

Reiner Schulze, Die Ausdehnung des Europäischen Privatrechts auf Drittstaaten

Following the article by Lado Chanturia (‘Die Ausdehnung des Europäischen Privatrechts auf Drittstaaten am Beispiel Georgiens’, in this issue, page 919), this contribution analyses different ways of third countries adopting European Private Law beyond the institutionalized forms of approximation of law. In particular, it deals with the reception of the law of the Member States and the „acquis commun“ alongside the Acquis communautaire and criticizes the concept of a „legal transplant“ of European law in third countries.

On 19-20 November 2018, the conference: Challenge Accepted! Exploring Pathways to Civil Justice in Europe funded by the European Research Council takes place at Erasmus University Rotterdam. It focuses on artificial intelligence, ADR and ODR, self-representation, and court specialization in the context of improving access to and the quality of civil justice. Keynote speakers include Judith Resnik (Yale University) and Ruth de Bock (Advocate-General Dutch Supreme Court).

Further information on the program and registration is available here.

Find the description of the panels below.

Panel 1: The computer as the court

Artificial Intelligence (AI) research is fast advancing on new frontiers, which promise to make computers replicate traits of human intelligence. In the near future, we might see robots or machines that handle legal cases and might even replace humans as judges. We might see the computer as the court. However, AI is a term that encompasses many technologies with as many applications. This panel aims at providing an overview of the different AI technologies and their benefits. Furthermore, it explores what ethical issues are raised by replacing judges with AI units. It will try to map near?future AI innovations in the court system.

Panel 2: Consumer ADR/ODR: Justice behind closed doors? ADR (and its digital incarnation, ODR) are commonly presented as tools facilitating informal, accessible, fast and cost?effective access to justice for consumers while preserving public resources. However, such new forms of privatised Justice have raised a number of questions relating, among others, to their transparency, effects on due process or accountability. Representatives of ADR providers from several Member States and academics will critically discuss the role and potential of ADR/ODR in 21st century justice systems.

Panel 3: Access to civil justice: Taking lawyers out of the equation?

Richard Susskind’s ‘The End of Lawyers?’ underscored the existential need of the legal profession to adapt to an ever?changing landscape of legal services under the influence of the increased use of information technology, commoditisation, outsourcing, and so on. Not only are lawyers subject to change in the way they work, lately we see that, in attempts at making the administration of justice cheaper, faster and accessible, lawyers may not be part of the equation at all. Increasing possibility for self?representation in the Netherlands and the drastic cuts to legal aid in the UK provide the backdrop for a discussion about the changing landscape of civil justice and representation. This panel focuses the discussion on the relevance of legal assistance for effective dispute resolution and critically assesses the impact of the diminishing role of lawyers on the administration of justice.

Panel 4: Court specialization: Turning the tide of the ‘vanishing trial’?
Court specialization may enhance the efficiency of civil justice, provide expertise and, as a result, improve the quality and uniformity of court decisions. However, one cannot turn a deaf ear to the concerns expressed. Specialized courts may impair the geographical proximity of justice, put in question the independence and impartiality of the judiciary, establish stereotype procedures and lastly lead to a proliferation of forums resulting in a judicial labyrinth. Although specialized courts have long existed, recent legislative initiatives signal a shift towards an even greater court specialization. Courts specializing in international commercial cases, patent or company matters are only some to mention. By mapping the risks and benefits of specialized courts this panel assesses the impact court specialization has on access to justice on a European level.

When is a court ‘seized’ under EU civil procedure /private international law? The question is highly relevant in light of the application of the lis alibi pendens principle: the court seized second in principle has to cede to the court seized first. Williams J in [2018] EWHC 2035 (Fam) MB v TB notes the limited attempt at harmonisation under EU law and hence the need for the lex fori to complete the procedural jigsaw.

On 8 July 2016 MB (the wife) issued a divorce petition seeking a divorce from TB (the husband). On 16 August 2016 the husband issued a divorce petition against the wife out of the Munich Family Court. On the 22 August 2016 the husband filed an acknowledgement of service to the wife’s petition asserting that the German court was first seized because it was ‘not accepted England is first seized, owing to failures to comply with art. 16 and 19 of Council Regulation (EC 2201/2003) and relevant articles of the EC Service Regulation (EC 1393/2007).

At issue were two considerations: whether seizure of the English courts had been effected; and whether the wife’s issuing of the petition on 8 July 2016 is an abuse of process on the basis that the wife did not at that time consider the marriage to have irretrievably broken down but was issuing a petition simply to secure the English jurisdiction in the event that a divorce was needed? This latter element amounts to disciplining a form of fraus, on which I have reported before – eg here that there is very little EU law.

In Regulation ‘Brussels IIa’ (2201/2003) – concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, as in the other Regulations, ‘seising of a Court’ is defined as:

1. A court shall be deemed to be seised: 

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

These ‘steps required’ are not further defined under EU law and hence rest with national law. Under relevant English law, Williams J held that the husband was aware of the wife’s petition before it was validly served on him, and that this was enough for the English courts to have been validly seized.

Geert.

L’article 132-23 du code pénal permet, sous réserve de la réunion des conditions légales, l’application d’une période de sûreté sans que le juge ait à la prononcer expressément. Ce mécanisme ne méconnaît pas les principes d’individualisation et de nécessité des peines. Le texte est donc déclaré conforme à la Constitution.

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Thank you 20 Essex Street for flagging (and analysing)  [2018] EWHC 3009 (Comm) Qingdao Huiquan, granting anti-suit against a foreign litigant who is not a party to an exclusive choice of forum agreement (in particular: arbitration agreed in a settlement agreement). The third party, SDHX, is engaging in proceedings in China, and is related to one of the parties to the settlement agreement.

SDHX appeal to privity of contract is tainted by its invoking elements of the settlement agreement in the Chinese proceedings. Under relevant authority, this was ground for Bryan J to issue aint-suit against it.

A classic cake and eating it scenario, one could say: at 36: ‘I have had particular regard to the fact that it is clear from the Settlement Agreement that SDHX is indeed seeking to rely upon the terms of the Settlement Agreement in advancing its claims in the Chinese proceedings and that, in doing so, therefore, it has to take the burden of the arbitration clause, if an arbitration clause be a burden,..as well as the benefits that it seeks to derive from that agreement.’

Evidently Brussels I Recast is not engaged.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.2.10.