Agrégateur de flux

Tribunal de Grande instance de Nanterre, pôle civil, 2e chambre, section sociale, 15 juillet 2016

Cour de justice de la République

The Friedrich-Schiller-University Jena (FSU), Faculty of Law, invites applications for the post of a fulltime, permanent Lecturer in English Common Law (salary class E 13) beginning 1 October 2016.

Background:

The Faculty of Law at the FSU Jena is operating a LL.B. degree course “International Legal Studies”. It merges the traditional German legal education with a comprehensive training in the law of England and Wales. Graduates will be able to continue their education as a barrister or solicitor in England and Wales, as the degree from this course fulfils the requirements for the academic stage of training set by the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB). The different areas of English Civil Law, Public Law and Criminal Law are taught at a level equal to that of English universities.

For more information on the Faculty please visit http://www.rewi.uni-jena.de/.

Requirements:

The successful candidate should hold a university degree in law from a law school in the UK or from a similar academic background. He or she should be able to demonstrate profound teaching experience in Common Law at an English speaking university at undergraduate and graduate level. A PhD and additional research experience are welcome. He/she should be an English native speaker or master the English language at mother tongue level. Proficiency in the German language is not required, but the candidate should be willing to acquire at least a working knowledge of German.

Tasks:

The successful candidate will teach the different areas of English common law within the degree course “International Legal Studies”. He/she will co-operate directly with the director of the Law & Language Centre and will also support all the academic activities associated with the Centre. It is also expected that he/she will support the Faculty’s Moot Court Competition Teams.

We offer a permanent, full time position. However, the successful candidate will initially be appointed for a limited period of two years with the possibility of permanent employment at a later stage. Salary is paid according to E 13 German TV-L (salary agreement for public service employees). As an equal opportunity employer the FSU is committed to increase the percentage of female scientists and therefore especially encourages them to apply. Severely disabled persons are encouraged to apply and will be given preference in the case of equal suitability.

Further inquiries in English or German may be directed to the Dean of the Faculty of Law, Professor Dr. Walter Pauly (dekan@recht.uni-jena.de).

Application:

Applications should be submitted by email in pdf-format by 12. August 2016 to the Dean of the Faculty of Law, Prof. Dr. Walter Pauly: dekan@recht.uni-jena.de (Friedrich-Schiller-University Jena, Dean of the Faculty of Law, Prof. Dr. Walter Pauly, Carl-Zeiß-Straße 3, D-07743 Jena, Tel: ++49 (0)3641-94200, FAX: ++49 (0)3641-942232).

Application costs must be borne by the applicant.

In C-196/15 Granarolo, extensive reference is made to Brogsitter, in which the CJEU held that the fact that one contracting party brings a civil liability claim against the other is not sufficient to consider that the claim concerns ‘matters relating to a contract’ within the meaning of Article 7(1) Brussels I Recast. That is the case only where the conduct complained of may be considered a breach of contract, which may be established by taking into account the purpose of the contract, which will in principle be the case only where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter. 

Kokott AG Opined that there was no such contractual relationship in the case at hand: see my review of the Opinion. The Court held last week and was less categorical. It suggests a contractual relationship between the parties (which did not have a framework agreement in place: rather a long series of one-off contracts) should not be excluded: the long-standing business relationship which existed between the parties is characterised by the existence of obligations tacitly agreed between them, so that a relationship existed between them that can be classified as contractual (at 25).

What follows can be considered a CJEU addition to the rather byzantine double negative C-26/91 Handte formula: ‘matters relating to a contract is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another’. In Granarolo at 26 the Court notes

The existence of a tacit relationship of that kind cannot, however, be presumed and must, therefore, be demonstrated. Furthermore, that demonstration must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

These criteria obviously are quite specific to the question at hand yet it is the first time the Court, carefully, ventures to give indications of some kind of a European ius commune on the existence of ‘a contract’.

Whether any such contract then is a contract for the sale of goods or one for services, is not a call the Court wishes to make. It lists the various criteria it has hitherto deployed, with extensive reference in particular to C-9/12 Corman-Collins, and leaves the decision up to the national court.

Make a mental note of Granarolo. It may turn out to have been quite pivotal. Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9

Prepared by guest editors Dr. Ignacio Torterola and Quinn Smith, this special addresses the various challenges and changes at work in dispute resolution in Latin America. A second volume that continues many of the themes from different angles and perspectives is also nearing completion. Download a free Excerpt here

EDITORIAL

* TDM Latin America Special – Introduction by I. Torterola, Q. Smith, GST LLP

LATIN AMERICA

* Two Solutions for One Problem: Latin America’s Reactions to Concerns over Investor-State Arbitration
by A. López Ortiz, J.J. Caicedo and W. Ahern, Mayer Brown

* Towards a Resolution of Outstanding Nationalization Claims Against Cuba
by M. Marigo and L. Friedman, Freshfields US LLP

* Comparative Commentary to Brazil’s Cooperation and Investment Facilitation Agreements (CIFAs) with Mozambique, Angola, Mexico, and Malawi
by N. Bernasconi-Osterwalder and M.D. Brauch,

* International Investment Law and the Protection of Foreign Investment in Brazil
by C. Titi, CNRS / CREDIMI

* Recognition of Foreign Judgments and Awards in Brazil
by C.A. Pereira, Justen, Pereira, Oliveira & Talamini

* What to Expect from the Arbitration Center of the Union of South American Nations (UNASUR)?
by J.I. Hernández G., Universidad Central de Venezuela, Universidad Católica Andrés Bello

* The Court of Justice of the Andean Community: A New Forum for the Settlement of Foreign Investment Disputes?
by E. Anaya Vera, Pontifical Catholic University of Peru; R. Polanco Lazo, World Trade Institute

* Commercial Mediation in the Americas
by H. Otero and A.L. Torres, American University Washington College of Law

* Los Dilemas De La Mediación. Efectivos Referentes Para Su Enseñanza En El Contexto Latinoamericano
by A. Castanedo Abay, Universidad de la Habana

* Bestiary of Mexican State Contracts: Treatise on Various Real and Mythical Kinds of Arbitration
by O.F. Cabrera Colorado, Ibáñez Parkman; A. Orta González Sicilia, Caraza y Morayta

* El Recuento de los Daños: Compensación, Intereses y Costas del Arbitraje Inversionista-Estado del TLCAN. La Experiencia Mexicana
by J. Moreno González, CIDE; J.P. Hugues Arthur, Ministry of Finance and Public Credit, Mexico

* La negociación de la tierra en La Habana – El problema de la disputa de las rentas de los recursos naturales en el siglo XXI
by C.G. Álvarez Higuita, Profesor Honorario, Universidad Nacional

* Analysis of the New Argentine Arbitration Regulation: Much Ado about (Nearly) Nothing
by D.L. Alonso Massa, Attorney

* Compensation for Losses to New or Unfinished Business: A New Paradigm in the Making? A Case Comment on Gold Reserve v. Venezuela
by L. Hoder, Kocian Solc Balastik

* Dual Nationality in Investment Arbitration: The Case of Venezuela
by J.E. Anzola, International Arbitrator

* FCPA, UKBA, and International Arbitration: Dealing with Corruption in Latin America
by R. Pereira Fleury, Shearman & Sterling LLP; Q. Wang, The Chinese University of Hong Kong

* Currency Exchange Controls and Transfer Protections in BITs
by R. Ampudia, International Litigation Counsel; M.I. Pradilla Picas, Jones Day

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

In the wake of the Juncker Plan, the Action Plan on Building a Capital Markets Union and the Single Market Strategy the European Commission has made the strengthening of Europe´s Economy and the stimulation of investments in Europe some of its top priorities. In doing so the Commission has identified insolvency and restructuring proceedings as an important factor for creating a strong capital market. Thus insolvency law has increasingly attracted the Commission’s attention. The recast of the European Insolvency Regulation on (cross-border) insolvency proceedings which will be applicable from June 26, 2017 (or the day after? See http://conflictoflaws.net/2016/oops-they-did-it-again-remarks-on-the-intertemporal-application-of-the-recast-insolvency-regulation/) is only an intermediate step towards a European Insolvency Law.

Already back in 2014 the Commission formulated the non-binding recommendation on a new approach to business failure and insolvency encouraging the member states to create ”a framework that enables the efficient restructuring of viable enterprises in financial difficulty” and to “give honest entrepreneurs a second chance”. Now, the Commission is far more ambitious as it is preparing an “insolvency initiative” on certain aspects of substantive insolvency laws to be adopted in autumn this year, as Vera Jourová, EU Commissioner for Justice, Consumers and Gender Equality, announced at last week´s conference on the “Convergence of insolvency frameworks within the European Union – the way forward” in Brussels. This conference was intended to contribute to the preparatory work of the Commission on the insolvency initiative.

Accompanying the conference the Commission has also published an insightful comparative study on substantive insolvency law throughout the EU prepared by a team from the School of Law at the University of Leeds. It is highly interesting how far-reaching the Commission´s legislative proposal will be. Is the Commission even planning to harmonize the member state´s rules on the ranking of claims? Will there be minimum standards for insolvency practitioners and courts throughout the EU? Will there be special rules for insolvencies of corporate groups? As indicated by the Commission´s “Inception Impact Assessment” on the insolvency initiative published earlier this year we can at least expect an EU Directive on a preventive restructuring procedure. Either way international insolvency law will be a highly interesting and dynamic area of international law for the next years.

The Stream of the conference is still available at: https://webcast.ec.europa.eu/insolvency-conference

The Impact Assessment is available at: http://ec.europa.eu/justice/civil/files/insolvency/impact_assessment_en.pdf

The comparative study is available at: http://ec.europa.eu/justice/civil/files/insolvency/insolvency_study_2016_final_en.pdf

A few days ago, the 5th of edition of a (German language) classic on private international law, the “Hay”, was released. Fully revised and updated by Hannes Rösler, a Professor for Civil Law, Comparative Law and Private International Law at the University of Siegen (Germany), it now appears as Hay/Rösler, Internationales Privat- und Zivilverfahrensrecht, 5th edition, C.H. Beck 2016 (XXXI + 326 pages).

The book covers nearly every aspect of private international law through 229 questions and cases. The first part of the book (about 40 percent) covers procedural aspects. It starts with international jurisdiction under the Brussels Ibis Regulation, further EU regulations (including the Regulations on maintenance and succession) and German law. It continues with questions of proof of facts and service of documents and finishes with recognition and enforcement of foreign judgments.

The second part deals with private international law in the narrower sense. It first addresses key concepts (“Allgemeiner Teil”) and then covers the Rome I and Rome II Regulations, property law, family law (including the relatively new Rom III Regulation), succession law and company law.

The books is an excellent and up-to-date introduction to private international law. It provides easy access to complex legal issues. Thanks to its case-orientation it will be especially helpful for students preparing for classes and exams. In addition, it will prove helpful for lawyers and practitioners interested in private international law.

Further information, including a table of contents, can be found here.

Professor Dr. Dr. h.c. mult. Jürgen Basedow, Director of the Max Planck Institute for Comparative and International Private Law (Hamburg), has analyzed the challenges that Brexit poses for private and commercial law in an editorial for issue 3/2016 of the Zeitschrift für Europäisches Privatrecht. The main contents of this article have been summarized in English on the Institute’s website; this abstract is reproduced here with the kind permission of Professor Basedow.

As soon as the UK notifies the European Council of its intent to leave the EU in accordance with Article 50 para. 2 TEU, a two year period shall commence within which all negotiations must be conducted. Should negotiations exceed this two year period or if the outcomes meet resistance in the UK or the EU bodies, Art. 50 para. 3 TEU stipulates that Union Treaties shall simply cease to apply, unless the Council and the UK unanimously agree to extend that period.

As sparing as the wording of Art. 50 para. 2 TEU is, it does make it very clear: should the EU and the UK not reach agreement within two years of notification, then the Treaties, including the freedom of movement they contain, cease to be in force. The possibility that access may be lost to the European single market and other guarantees provided by primary EU law puts the UK under economic and political pressure that may weaken their negotiating position against the EU. British voters were probably not aware of this consideration before the referendum.

The question of whether and how the international conventions of the EU, particularly those for a uniform system of private law, shall continue to apply is also complex. It may be that conventions like the Montreal Convention for the Unification of Certain Rules for International Carriage by Air or the Cape Town Convention on International Interests in Mobile Equipment and the Aviation Protocol will continue to apply, as they were ratified by both the UK and the EU, although relevant decisions handed down by the ECJ will no longer be binding on the UK courts. But what is the situation with regard to the Hague Jurisdiction Convention of 2005 that was ratified by the EU on behalf of all Member States, but not by the States themselves? These private and procedural law Conventions – just as all other international law agreements of the EU – must also be addressed during the exit negotiations.

Any change of Great Britain’s status under the Brussels I Regulation 1215/2012 is also particularly significant for private law. It is for the British courts to decide whether they will continue to observe the rules of jurisdiction. Their judgments however will no longer be automatically enforceable across the whole Union, as Art. 36 only applies to “a judgment given by the courts of a Member State”. Older bilateral agreements such as that existing between Germany and Britain may go some way to bridging the gap, as will the autonomous recognition of laws, but neither will suffice completely. International legal and commercial affairs must thus return to square one. As it currently stands, the Lugano Convention (OJ 2009 L 147) is also unable to cover the shortfall, signed as it was by the EU and not the individual Member States. According to Art. 70, Great Britain is not one of the states entitled to join the Convention. This effectively removes one of the fundamental pillars supporting the remarkable rise in the number of law firms in London, with a business model based on the simple promise that stipulating London in a jurisdiction agreement would guarantee enforceability across the whole of Europe. This model will soon be a thing of the past, if viable solutions cannot be found for the exit agreement.

The agenda for the exit negotiations will thus be immensely broad in its scope. Even if the British government should drop EU primary law for the reasons listed above, they will try to include secondary legal guarantees for access to the European single market into their exit agreement. That would require the discussion of hundreds of Directives and Regulations. Considering that the entry negotiations with nine member states, divided into over 30 negotiation chapters, took so many years to complete, it is doubtful whether negotiations in the other direction can be completed within the two years stipulated by Art. 50 para. 3 TEU. Brexit has also shaken up international commercial competition in ways that have yet to be determined.

The complete article “Brexit und das Privat- und Wirtschaftsrecht” by Professor Jürgen Basedow will be published in the forthcoming issue 3/2016 of the ZEuP – Zeitschrift für Europäisches Privatrecht.

« Le Règlement CE n° 1346/2000 du 29 mai 2000 exclut les motifs de refus de reconnaissance des décisions prises par le tribunal d’ouverture de la faillite du Règlement CE n° 44/2001 pour substituer ses propres motifs de refus. »

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