Agrégateur de flux

The José María Cervelló Chair of IE Law School and the ONTIER law firm announce the “Eleventh José María Cervelló Busines Law Prize”.
The main purpose of the Prize is to promote legal study and research, and to facilitate access to the LLM courses of IE Law School for people who do not have the necessary financial resources.

The prize consists of the award of € 30,000 as follows:
€ 10,000 will be given to the author of the winning essay.
€ 20,000 will be assigned to the José María Cervelló Chair to be applied to its scholarship programme for the study of legal or tax courses at IE Law School.
Up to a maximum of two runner-up awards may be given to essays of sufficient quality to merit that distinction.

The subject of the essays opting for the “Eleventh José María Cervelló Business Law Prize” is: “Brexit: Legal consequences of the departure of the United Kingdom from the EU for businesses. Legal framework of the withdrawal and new Legal Framework, special reference to the problems of transitory law in respect of contracts, corporate operations and litigation”

All essays must be original, unpublished works written in Spanish or English. The length is a minimum of 25 and a maximum of 35 pages. The closing date for entries is Monday 8th May 2017 at 23:59 p.m. (Madrid, Spain time). The award ceremony will take place in June or July 2017, at IE Law School. All participants will be notified in due course.

All persons or Spanish or foreign nationality who are graduates in Law, holding either a pre-Bologna “licenciatura” qualification or a degree (grado) may take part.

For further details (members of the jury; essay format; presentation) click here: Cervello Prize on Brexit

Dr. Anabela Susana de Sousa Gonçalves, Assistant Professor at the University of Minho, has provided this piece of information to be shared with CoL readers. BILETA stands for British and Irish Law Education and Technology Association.

The Law School of the University of Minho (Braga, Portugal) will be hosting the BILETA Annual Conference, held from Thursday 20th to Friday 21st of April 2017.

The theme of the conference is: International perspectives on emerging challenges in Law, Technology and Education.

Keynote speakers will be:

• Professor Joe Cannataci: UN Special Rapporteur on the right to privacy
• Professor Jose-Luis Pinar: Professor of Administrative Law, CEU University of Madrid. Former Director of the Spanish Data Protection Agency (2002-2007). Former Vice-Chairman of the European Group of Data Protection Commissioners (Art. 29 Working Party Data Protection) (2003-2007)
• Professor Burkhard Schafer: Professor of Computational Legal Theory, The University of Edinburgh

In relation to this conference postgraduate students have the opportunity to enter two postgrad competitions. To do so they need to submit a full paper (6-10,000 words) by the deadline of the 31st of March. Three papers will be chosen to compete for the Google award, which will involve defending the work in a session at the conference and a public vote. The remaining papers will go forward for the BILETA award, to be selected by the BILETA Exec. Please indicate on submission of the abstract whether you aim to enter the competitions.

Abstracts of around 400-500 words are welcome on any area relating to the conference theme, with key areas including:

• Society, Business and Data Protection
• Intellectual Property Rights in the Information Society
• International challenges in IT regulation
• Private International Law solutions for the emerging challenges in Law and Technology
• E-commerce
• Public policies and governance in ICT Law
• Dispute resolution and management in virtual environments
• Technology and criminal investigation
• New technological platforms and education in law
• Smart environments in educational contexts
• Smart cities: ethical and legal challenges
• Multicultural Societies, Integration and ICT Law

The deadline for submission of abstracts has been extended to Friday the 17th of February 2017.  Abstracts should be emailed to: bileta2017@gmail.com 

Please contact Catherine Easton c.easton@lancaster.ac.uk if you have any general queries about the conference.  

In addition, BILETA 2017 will feature special panels such as a discussion on the impact of Brexit on the development of UK and EU Information Technology Law

For travelling, accommodation and further relevant details please click here.

 

Statistiques judiciaires 2016 : la durée des procédures poursuit sa tendance à la baisse au profit des citoyens

Professions médicales et paramédicales

On Friday, 24 February 2017, the research project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters” is organizing a workshop on European International Family Law under the title

“European Open Issues in Private International Law:

Matrimonial and Maintenance Law”

at the University of Genoa.

The unalex project is aimed at the expansion of a multilingual international source of literature on legal instruments of EU law and of international uniform law. It is based on the already existing unalex portal (http://www.unalex.eu/), a legal information system on European and international uniform law, containing a well equipped collection of international case law, structured Compendia and a large number of additional materials.

During the workshop „unalex open issues“ shall be discussed as a new instrument, stimulating a scientific debate on controversial opinions from different legal systems. In addition the concept of an Encyclopedia of European family law will be presented, serving to document relevant legal texts of different Member States.

A primary goal of the unalex project is to interest and to win authors from different European legal systems to create Compendia and commentaries and to form a network of authors.

Registration for the conference is possible by sending an e-mail to francesca.maoli@edu.unige.it.

Cour d'appel de Paris, pôle 2, chambre 5, 7 février 2017

Cour d'appel de Saint-Denis de la Réunion, chambre d'appel de Mamoudzou, 31 janvier 2017

Cour d'appel de Paris, pôle 1, chambre 1, 7 février 2017

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 12, 27 septembre 2016

Cour d'appel de Douai, chambre de l'instruction, 27 janvier 2017

Le Pen / Parlement
Droit institutionnel
Le Président du Tribunal de l’UE ne suspend pas l’exécution des décisions du Parlement européen visant à recouvrer auprès de MM. Jean-Marie Le Pen et Bruno Gollnisch et de Mme Mylène Troszczynski les sommes versées à titre de rémunération pour des assistants parlementaires locaux

Congregación de Escuelas Pías Provincia Betania
Aide d'État
Selon l’avocat général Kokott, les exonérations fiscales dont bénéficient les écoles relevant d’une autorité ecclésiastique n’enfreignent pas, en général, le principe de l’interdiction des aides d’État

Schmitt
Rapprochement des législations
La Cour de justice prononce son arrêt dans l’affaire sur les implants mammaires à base de silicone industrielle de qualité inférieure

On 24 January 2017, the Grand Chamber of the ECtHR rendered its judgment in the case of Paradiso and Campanelli v. Italy. The case involves a child born in Russia following a gestational surrogacy contract entered into by an Italian couple with a Russian woman. The couple complained that the measures taken by the Italian authorities in respect of the child, which resulted in the latter’s permanent removal, had infringed their right to respect for private and family life, guaranteed by Article 8 of the Convention.

The Grand Chamber held that Italy did not violate Article 8 of the ECHR. Having regard to the absence of any biological tie between the child and the intended parents, the short duration of the relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court considered that the conditions for the existence of family life had not been met. The Court accepted, however, that the facts of the case fell within the scope of the applicants’ private life.

In the Court’s opinion, the Italian authorities, having concluded that the child would not suffer grave or irreparable harm as a result of the separation from the Italian couple, struck a fair balance between the different interests at stake, while remaining within the State’s margin of appreciation. 

Il 24 gennaio 2017, la Grande Camera della Corte europea dei diritti dell’uomo si è pronunciata nel caso Paradiso e Campanelli c. Italia. Il caso riguarda un minore nato in Russia a seguito di un contratto di maternità surrogata concluso da una coppia di italiani con una donna russa. La coppia si lamentava del fatto che le misure assunte dalle autorità italiane, che avevano comportato l’allontanamento del minore, integravano una violazione del diritto alla vita privata e familiare garantito dall’art. 8 della Convenzione europea dei diritti dell’uomo.

La Grande Camera ha concluso che non vi è stata alcuna violazione dell’art. 8 da parte delle autorità italiane. Considerata la mancanza di un legame biologico tra il bambino ed i genitori committenti, la breve durata del rapporto con il minore e l’incertezza dei legami giuridici, e nonostante l’esistenza di un progetto genitoriale nonché la qualità dei legami affettivi, la Corte ha ritenuto che le condizioni per l’esistenza della vita familiare non fossero soddisfatte. La Corte ha riconosciuto, tuttavia, che la fattispecie interessasse la vita privata dei ricorrenti.

Per la Corte, le autorità italiane, nel considerare che il minore non avrebbe sofferto un pregiudizio grave o irreparabile dalla separazione dalla coppia, hanno effettuato un giusto bilanciamento tra tutti gli interessi in gioco, nel rispetto del margine di apprezzamento lasciato allo Stato.

Dans ses conclusions du 7 février 2017 dans l’affaire X et X/État belge portée devant la Cour de justice de l’Union européenne (CJUE), l’avocat général, Paolo Mengozzi, apporte des précisions sur les conditions de délivrance d’un visa humanitaire par les États membres. Il se prononce à l’occasion d’une question préjudicielle portant sur l’interprétation de l’article 25, paragraphe 1, sous a), du code des visas, relatif au visa à validité territoriale limitée (Règl. (CE) n° 810/2009, 13 juill. 2009).

en lire plus

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2016: Brexit ante portas!
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2015 until November 2016. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

P. Mankowski: Modern Types of Migration in Private International Law
Migration has become a ubiquitous phenomenon in modern times. Modern immigration law has developed a plethora of possible reactions and has established many different types of migrants. Private international law has to respond to these developments. The decisive watershed is as to whether a migrant has acquired refugee status under the Geneva Refugees Conventions. If so, domicile substitutes for nationality. A mere petition for asylum does not trigger this. But subsidiary protection as an equivalent status introduced by EU asylum law must be placed on equal footing. Where habitual residence is at stake, it does matter whether a residence has been acquired legally or illegally under the auspices of immigration law. Yet for judging whether a habitual residence exists, the extension of permits might be a factor.

C. Mäsch/B. Gausing/M. Peters: Pseudo-foreign Ltd., PLC and LLP: Limited in liability or rather in longevity? – The Brexit’s impact on English corporations having their central administration in Germany
On 23rd of June 2016, the people of the United Kingdom voted in a referendum against the UK staying in the European Union. If, as can be expected, the withdrawal negotiations under Art. 50 of the EU Treaty will not address the issue of pseudo-English corporations operating in the remaining Member States of the EU, the Brexit will have severe consequences for companies incorporated under English law (e.g. a Ltd., PLC or LLP) having their central administrative seat in Germany. No longer protected by the freedom of establishment within the EU (Art. 49, 54 TFEU) these legal entities will be under German PIL and the so-called Sitztheorie subjected to domestic German company law. They will thus be considered simple partnership companies (German GbR or OHG), losing from one day to the next i.a. their limited liability status – an unexpected and unjustified windfall profit for creditors, a severe blow for the company shareholders. In this paper it will be argued that the outcome can and indeed should be rectified by resorting to the legal rationale of Art. 7 para 2 EGBGB (Introductory Act to the German Civil Code). This provision preserves the legal capacity of a natural person irrespectively of whether a change in the applicable law stipulates otherwise. Extending that concept to legal entities will create a “grace period” with a fixed duration of three years during which the English law continues to apply to a “German” Ltd., PLC or LLP, giving the shareholders time to decide whether to transform or re-establish their company.

L. Rademacher: Codification of the Private International Law of Agency – On the Draft Bill Submitted by the Federal Ministry of Justice
Based on a resolution adopted by the German Council for Private International Law, the German Federal Ministry of Justice and Consumer Protection has submitted a bill to amend the Introductory Act to the German Civil Code (EGBGB) in the to date uncodified area of agency in private international law. This paper provides an overview of the proposed Art. 8 EGBGB and identifies questions of interpretation as well as remaining gaps. The draft provision applies to agents who were authorized by the principal, i.e. neither to statutory agents nor to representatives under company law. The proposal strengthens party autonomy by allowing a choice of law. Absent a choice of law, the applicable law is determined by objective criteria depending on the type of agent. The respective connecting factors, such as the agent’s or principal’s habitual residence, require perceptibility for the third party. If these requirements are not met, the applicable law residually is determined by the identifiable place of the agent’s acts or by the principal’s habitual residence. For the most part, the proposal can be characterized as a restatement of previous case law and academic writing.

H. Roth: Rule and exceptions regarding the review of the European Order of Payment in exceptional cases according to art.20 par. 2 of Reg. (EC) 1896/2006
According to Art. 20 para. 2 of Reg. (EC) 1896/2006, the European Order of Payment can be reviewed in exceptional cases. This additional legal remedy is only applicable in exceptional cases such as collusion or other malicious use of process. It is not sufficient that the defendant would have been able to detect misrepresentations by the claimant.

M. Pika/M.-P. Weller: Private Divorces and European Private International Law
Whilst substantive German family law requires a divorce to be declared in court, the instant case addresses the effect of a private divorce previously undertaken in Latakia (Arabic Republic of Syria) under Syrian law. Although, from a German perspective, the Syrian Sharia Court’s holding has been merely declaratory, the European Court of Justice considered its effect before German courts to be a matter of recognition. Accordingly, it rejected the admissibility of the questions referred to the Court concerning the Rome III Regulation. This ruling indicates the unexpected albeit preferable obiter dictum that the Brussels II bis Regulation applies on declaratory decisions concerning private divorces issued by Member States’ authorities. Subsequently, the Higher Regional Court Munich initiated a further, almost identical preliminary ruling concerning the Rome III Regulation. However, the key difference is that it now considered the Regulation to be adopted into national law.

A. Spickhoff: Fraudulent Inducements to Contract in the System of Jurisdiction – Classification of (contractual or legal) basis of claims and accessory jurisdiction
Manipulation of mileage and concealment of accidental damage belong to the classics of car law and indicate a fraud. But is it possible to qualify a fraudulent misrepresentation in this context as a question of tort with the meaning of art. 7 no. 2 Brussels I Regulation (recast)? German courts deny that with respect to decisions of the European Court of Justice. The author criticizes this rejection.

K. Siehr: In the Labyrinth of European Private International Law. Recognition and Enforcement of a Foreign Decision on Parental Responsibility without Appointment of a Guardian of the Child Abroad
A Hungarian woman and a German man got married. In 2010 a child was born. Two years later the marriage broke down and divorce proceedings were instituted by the wife in Hungary. The couple signed an agreement according to which the child should live with the mother and the father had visitation rights until the final divorce decree had been handed down and the right of custody had to be determined by the court. The father wrongfully retained the child in Germany after having exercised his visitation rights. The mother turned to a court in Hungary which, by provisional measures, decided that rights of custody should be exclusively exercised by the mother and the father had to return the child to Hungary. German courts of three instances recognized and enforced the Hungarian decree to return the child according to Art. 23 and 31 (2) Brussels IIbis-Regulation. The Bundesgerichtshof (BGH) as the final instance decided that the Hungarian court had jurisdiction under Art. 8–14 Brussels IIbis-Regulation and did not apply national remedies under Art. 20 Brussels IIbis-Regulation. In German law, the hearing of the child was neither necessary nor possible and therefore the Hungarian return order did not violate German public policy under Art. 23 (a) or (b) Brussels IIbis-Regulation.

H. Dörner: Better too late than never – The classification of § 1371 Sect. 1 German Civil Code as relating to matrimonial property in German and European Private International Law
After more than 40 years of discussion the German Federal Supreme Court finally (and rightly so) has classified § 1371 Sect. 1 of the German Civil Code as relating to matrimonial property. However, the judgment came too late as the European Succession Regulation No 650/2012 OJ 2012 L 201/07 started to apply on 17 August 2015 thus reopening the question of classification in a new context. The author argues that a matrimonial property classification of § 1371 Sect. 1 German Civil Code under European rules is still appropriate. He discusses two problems of assimilation resulting from such a classification considering how the instrument of assimilation has to be handled after the regulation came into force. Furthermore, he points out that a matrimonial property classification creates a set of new problems which have to be solved in the near future (e.g. documentation of the surviving spouse’s share in the European Certificate of Succession, application of different matrimonial property regimes depending of the Member state in question).

H. Buxbaum: RICO’s Extraterritorial Application: RJR Nabisco, Inc. v. European Community
In 2000, the European Community filed a lawsuit against RJR Nabisco (RJR) in U.S. federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). After more than fifteen years and a number of intermediate judicial decisions, the litigation came to its likely close in 2016 with the U.S. Supreme Court’s ruling in RJR Nabisco, Inc. v. European Community. The Court held that RICO’s private cause of action does not extend to claims based on injuries suffered outside the United States, denying the European Community any recovery. The case was the third in recent years in which the Supreme Court applied the “presumption against extraterritoriality,” a tool of statutory interpretation, to determine the geographic reach of a U.S. federal law. Together, these opinions have effected a shift in the Court’s jurisprudence toward more expansive application of the presumption – a shift whose effect is to constrain quite significantly the application of U.S. regulatory law in cross-border cases. The Court’s opinion in RJR proceeds in two parts. The first addresses the geographic scope of RICO’s substantive provisions, analyzing whether the statute’s prohibition of certain forms of conduct applies to acts occurring outside the United States. The second addresses the private cause of action created by the statute, asking whether it permits a plaintiff to recover compensation for injury suffered outside the United States. After beginning with a brief overview of the lawsuit, this essay discusses each of these parts in turn.

T. Lutzi: Special Jurisdiction in Matters Relating to Individual Contracts of Employment and Tort for Cases of Unlawful Enticement of Customers
A claim brought against two former employees, who had allegedly misappropriated customer data of the claimant, and against a competitor, who had allegedly used said data to entice some of the claimant’s customers, provided the Austrian Oberster Gerichtshof with an opportunity to interpret the rules on special jurisdiction for matters relating to individual contracts of employment in Art. 18–21 of the Brussels I Regulation (Art. 20–23 of the recast) and for matters relating to tort in Art. 5 No. 3 of the Brussels I Regulation (Art. 7 (2) of the recast). Regarding the former, the court defined the scope of Art. 18–21 by applying the formula developed by the European Court of Justice in Brogsitter concerning the distinction between Art. 5 No. 1 and 3 (Art. 7 (1) and (2) of the recast); regarding the latter, the court allowed the claim to be brought at the claimant’s seat as this was the place where their capacity to do business was impaired. Both decisions should be welcomed.