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Slovénie / Croatie
Principes du droit communautaire
La Cour de justice de l’Union européenne n’est pas compétente pour statuer sur un différend frontalier entre la Slovénie et la Croatie, ces deux États membres étant toutefois tenus, en vertu de l’article 4, paragraphe 3, TUE, d’œuvrer loyalement à la mise en place d’une solution juridique définitive à ce différend, conforme au droit international

Today, 31 January 2020, at midnight (11 PM GMT), the United Kingdom will leave the European Union. This is a historic event with innumerable implications, amongst others, for private international law.

However, during the transition period – which expires earliest at the end of 2020 – most things will stay the same. This is thanks to the Withdrawal Agreement, which governs the UK’s divorce from the Union.

The UK will apply EU law, and the EU will, in principle, treat the UK as if it were a Member State (Article 127(1) and (6) of the Withdrawal Agreement). The main exceptions are some institutional provisions, e.g. the participation of the UK in EU bodies, where it will no longer have voting rights (see Article 7(1) and 128(1) of the Withdrawal Agreement).

What will happen after the end of transition period, nobody knows for sure, as the EU and the UK have just started negotiating their future relationship. However, the Withdrawal Agreement makes some provision for the post-transitional period.

Basically, the Regulations on Judicial Cooperation (Brussels I bis, II bis, Rome I, II, the Insolvency Regulation, the Maintenance Regulation, amongst others) will continue to apply to proceedings that have been “instituted” before the end of the transition period, i.e. before 31 December 2020 (Article 66-69 of the Withdrawal Agreement).

Naturally, those EU texts to which the UK was never subject will also not apply after 2020, such as the Succession Regulation.

These transitory provisions seem rather straightforward. However, as always, the devil is in the detail. For starters, it is not easy to determine when proceedings are ‘instituted’ (see this study for the European Parliament, p. 15-16). Moreover, Article 66-69 of the Withdrawal Agreement originally referred only to provisions on ‘jurisdiction’ and ‘recognition and enforcement’. The provisions regarding lis pendens have been later included at the beginning of Article 67 of the Withdrawal Agreement. This is not a model for clear drafting!

One must also not forget that Brexit will change the UK’s relation to non-EU Member States, such as Switzerland, Norway and Iceland. With the withdrawal from the EU, the Lugano Convention will no longer apply to the UK. As a consequence, British judgments will be subject to the recognition procedure under national law in the three Lugano States Switzerland, Norway and Iceland, and vice versa. This effect already applies as of tomorrow (1 February 2020)!

The Withdrawal Agreement between the EU and the UK has no impact on this, as it only concerns the relationship between those two parties. Article 129(1) of the Withdrawal Agreement binds the UK to “the obligations stemming from the international agreements concluded by the Union”, but cannot impose obligations on third parties.

The UK has, however, received assurances by Switzerland, Norway and Iceland that they support the UK’s accession to the Lugano Convention before the end of the transition period. What is missing so far is the EU’s consent.

One can only hope that the relevant political actors will come to their senses and reestablish the network of binding texts as soon and as comprehensively as possible. Judicial Cooperation is about much more than trade deals. It directly affects every day life of ordinary people.

Le gouvernement vient de déposer un projet de loi relatif au Parquet européen et à la justice pénale spécialisée. Un texte fourre-tout, qui contient plusieurs dispositions sur le parquet national financier, la répression des délits environnementaux, la création de nouvelles peines ou le fonds interprofessionnel d’accès au droit et à la justice. Il sera en débat au Sénat dès le 26 février.

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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.

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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: 

• Candidates’ doctoral dissertation has focused on, or closely connected to, family law, comparative private law, private international law (conflict of laws).
• Candidates will have submitted their doctoral dissertation by the starting date of the postdoctoral position. 
• Good knowledge of German, French or English private law/ family law is an advantage.
• Candidates must have an excellent command of the English language. Other relevant languages are an advantage. No Hebrew proficiency is required. 

Position Details: 

• The position is available starting from October 18, 2020, for a minimum of 3 months and a maximum of 12 months.
• Regular participation in workshops and other academic activities is expected throughout the academic terms.
• The compensation is a stipend of 10,000 ILS/ Month (~$US 2890; €2620). Health insurance, travel, accommodation and any other expenses are not covered.

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. 

Generics (UK) e.a.
Concurrence
La Cour de justice précise les critères pour qu’un accord de règlement amiable d’un litige opposant le titulaire d’un brevet pharmaceutique à un fabricant de médicaments génériques soit contraire au droit de la concurrence de l’Union

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.

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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.

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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.

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