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As my fellow editor Thalia Kruger has already signaled earlier, the final conference for the EU-funded IC2BE project on the cross-border enforcement of claims in the EU will take place in Antwerp (Belgium) on 21 and 22 November 2019. The conference will try to assess how the European framework of cross-border enforcement can be made more coherent and effective. In particular, the conference will discuss the application of the Regulations on the European Enforcement Order, the European Payment Order, the European Small Claims Procedure and the Account Preservation Order in various Member States as well as by the Court of Justice of the EU. This event brings together high-level practitioners from the European Commission, the CJEU as well as from Member State courts and authorities with distinguished scholars from across the EU.

The case law database of the IC2BE project is available here.

The current programme looks as follows:

Day 1, 21 November 2019

• 12.30-13.45 Registration and light lunch
• 13.45 Welcome (Johan Meeusen, University of Antwerp)

Section 1: Survey and Evaluation (Chair Stefania Bariatti, University of Milan)

• 14.00-14.30 IC2BE: Research Methodology, Key Findings and Best Practices (Jan von Hein, University of Freiburg)
• 14.30-15.00 CJEU case law on Cross-Border Enforcement (Veerle Van Den Eeckhout, Max Planck Institute Luxembourg)
• 15.00-15.30 Discussion
• 15.30-16.00 Coffee Break
• 16.00-17.30 Country reports Belgium (Fieke van Overbeeke, University of Antwerp), The Netherlands (Alina Ontanu, Erasmus University Rotterdam), Poland (Agnieszka Guzewicz and Agnieszka Lewestam-Rodziewicz, University of Wroc?aw), Spain (Samia Benaissa Pedriza, University of Complutense, Madrid)
• 17.30-18.00 Discussion

Day 2, 22 November 2019

Section 1 (continued) (Chair Agnieszka Frackowiak-Adamska, University of Wroc?aw)

• 9.00-10.00 Country Reports Germany (Tilman Imm, University of Freiburg), France and Luxembourg (Carlos Santaló Goris, Max Planck Institute Luxembourg), Italy (Valeria Giugliano, University of Milan)
• 10.00-10.15 Discussion
• 10.15-10.45 Coffee Break

Section 2: Perspectives (Chair Francesca Villata, University of Milan)

• 10.45-11.15 Towards a more coherent EU framework for cross-border enforcement (Burkhard Hess, Max Planck Institute, Luxembourg)
• 11.15-11.35 Making cross-border enforcement more effective for creditors (Gilles Cuniberti, University of Luxembourg)
• 11.35-11.55 Ensuring an adequate protection of debtors, in particular consumers, in cross-border enforcement (Fernando Gascón Inchausti, Complutense University, Madrid)
• 11.55-12.15 Third-state relations and cross-border enforcement after “Brexit” (Paul Beaumont, University of Stirling)
• 12.15-12-30 Comment by CJEU judge Camelia Toader
• 12.30-13.00  Discussion
• 13.00-14.00 Lunch
• 14.00-14.20 Technological progress and alternatives to the cross-border enforcement of small claims (Giesela Rühl, Friedrich-Schiller University Jena)
• 14.20-14.40 Improving access to information about cross-border enforcement (Xandra Kramer, Erasmus University Rotterdam)
• 14.40-15.00 Discussion

Section 3: Stakeholders’ views (Chair Carmen Otero, Complutense University, Madrid)

• 15.00-16.00 Stakeholder panel discussion
  • Ilse Couwenberg of the Belgian Court of Cassation,
  • Dr. Bartosz Sujecki, lawyer, Utrecht
  • Dr. Katarzyna Guzenda, German-Polish Center for Consumer Information, Brandenburg (Germany)
  • Patrick Gielen, huissier (Belgium)
• 16.00-16.15 Break

Section 4: Policy (Chair Marta Requejo, CJEU, Référendaire Cabinet de l’Avocat Général M. Campos Sánchez-Bordona)

• 30-17.30 Policy makers

• • Dr. Andreas Stein, European Commission, DG Justice, Head of Unit
  • Paulien van der Grinten, Ministry of Justice of The Netherlands
  • European Parliament, Legal Affairs Committee (tbc)
• 17.30-18.00 Discussion and closing remarks (Chair Thalia Kruger, University of Antwerp)

See here for further details on registration, which is free (only the dinner is to be paid by attendees). Antwerp is close to Brussels and Amsterdam and can easily be reached by train from either of those cities.

National seminars will also take place in the participating countries. See here for the dates.

The HCCH just released a short documentary on the adoption of the 2019 HCCH Judgments Convention.

Shot during the 22nd Diplomatic Session of the HCCH, which took place in June / July 2019, this documentary gives unprecedented insights into the finalisation of the negotiations of this game changing treaty. Follow the delegates during the negotiations and join them at the ceremonial signing of the Convention on 2 July 2019.

This documentary is also a unique opportunity to hear the Secretary General, Dr Christophe Bernasconi; the Chair of the Commission of the Diplomatic Session on the Judgments Convention, David Goddard QC; as well as H. E. Maria Teresa Infante, Ambassador of the Republic of Chile to the Kingdom of the Netherlands; and Professor Elizabeth Pangalangan, University of the Philippines, share first hand their experiences and impressions during the Diplomatic Session, and explain the key elements of the 2019 HCCH Judgments Convention as well as the benefits it will offer.

The video is now available on the HCCH’s YouTube channel (https://youtu.be/DTlle58s64s).

This is a reminder that the Permanent Bureau of the Hague Conference on Private International Law (HCCH) seeks high-achieving interns for January to July 2020.

An internship with the HCCH offers a unique opportunity to deepen the knowledge of private international law, better understand how the HCCH functions, and contribute to the work of the Organisation.

Interested? Then lodge your application by Monday 30 September 2019.

For more information, including the application requirements, check out the HCCH website at: https://www.hcch.net/en/recruitment/internships#legal.

Ils ont présenté leur demande mercredi 4 septembre devant le TASS de Paris, demandant le paiement de leurs cotisations sociales par leur employeur, l’État, en infraction depuis près de vingt ans en ne payant pas les cotisations patronales pour ces collaborateurs occasionnels du service public dont il requiert les services.

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Apostolos Anthimos

THE FACTS

There is no need to repeat the facts which are already reported in my previous posts (see links above). There are however some novelties: The application for recognition concerned indeed the divorce between the same parties, as in the first case; however, this time the request referred to a judgment of the Abdeen Court of 1st Instance, which rectified the divorce issued before the notary public. In particular, the divorce was previously registered as of a revocable nature [revocable repudiation]. Given that the waiting period had expired, and the husband did not ask for his wife’s return in the marital home, a new application was filed before the Abdeen court, aiming at the rectification of the registration, i.e. from revocable to an irrevocable divorce.

THE RULING

The court began with an analysis of the pertinent provisions, i.e. Article 780 Code of Civil Procedure, which is the rule for the recognition of foreign judgments issued in non-contentious proceedings, also covering foreign legal instruments. It first underlined the obvious difficulties in accepting a divorce by repudiation, which clearly violates the equality of sexes. However, and this is the novelty of the ruling, recognition may not be denied, if the applicant is the wife; otherwise, the public policy defence would cause unfair solutions in concreto.

The court entered then into the facts of the case. It first considered the Egyptian decision as similar to a Greek final and conclusive judgment. It then examined whether the foreign court applied the proper law. In this context, it made reference to Article 16, in conjunction with Art. 14.2 Greek Civil Code, which enumerates three options: The law of common nationality; the law of the last common residence; and the law with which the parties are in the closest possible connection. Since Cairo was the last common residence, the application of Egyptian law was the proper solution.

Coming back to the public policy issue, the Thessaloniki Court reiterated that the general approach goes indeed towards a public policy violation, given that repudiation runs contrary to the European Convention of Human Rights. However, in the case at hand, the applicant has fully accepted the dissolution of her marriage in this fashion; moreover, she was the one seeking the rectification in Egypt, and filing for the recognition of the talaq in Greece. A dismissal of the application would lead to an absurd situation, i.e. the existence of a marriage which none of the spouses wishes to maintain. In addition, forcing the applicant to initiate divorce proceedings in Greece would be costly and time-consuming.

For all the reasons aforementioned, the Thessaloniki court granted the application.

[CFI Thessaloniki, 17/07/2019, Nr. 8458/2019, unreported].

COMMENTS

The ruling of the Thessaloniki court is very welcome for the following reasons, which I listed in my last year’s post:

1. It bypassed an Athens Court of Appeal judgement from the ‘90s, which ruled out any attempt to recognize a talaq, even if requested by the spouse.
2. It took a firm stance, triggered by a 2016 ruling of the Supreme Court’s Full Bench [Areios Pagos 9/2016], stating that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination.
3. It made clear reference to the futility of fresh divorce proceedings in Greece, which would cause significant costs to the applicant and prolong the existence of a marriage no longer desired by any of the parties involved.

Written by John Coyle, the Reef C. Ivey II Distinguished Professor of Law, Associate Professor of Law at the University of North Carolina School of Law

The choice-of-law clause is now omnipresent.  A recent study found that these clauses can be found in 75 percent of material agreements executed by large public companies in the United States.  The popularity of such clauses in contemporary practice raises several questions.  When did choice-of-law clauses first appear?  Have they always been popular?  Has the manner in which they are drafted changed over time?  Surprisingly, the existing literature provides few answers.

In this post, I try to answer some of these questions.  The post is based on my recent paper, A Short History of the Choice-of-Law Clause, which will be published in 2020 by the Colorado Law Review.  The paper seeks, among other things, to determine the prevalence of choice-of-law clauses in U.S. contracts at different historical moments.  The paper also attempts to determine how the language in these same clauses has evolved over time.

Prevalence

The paper first traces the rise of the choice-of-law clause in the United States over the course of the 19th  and 20th centuries.  It shows how these clauses were first adopted in the late 19th century by companies operating in a small number of industries – life insurance companies, transportation companies, and mortgage lenders – doing extensive business across state lines.  These clauses soon migrated to other types of agreements, including prenuptial agreements, licensing agreements, and sales agreements.  One can find examples of clauses in each of these types of agreements in cases decided between 1900 and 1920.  It is challenging, however, to estimate what percentage of all U.S. contracts contained a choice-of-law clause at points in the distant past.  To calculate this number accurately, one would need to know, first, the total number of contracts executed in a given year, and second, how many of these contracts contained choice-of-law clauses.  From the vantage point of 2019, it is simply not possible to gather this information.

It is possible, however, to obtain a rough sense for the prevalence of such clauses by looking to books of form contracts.  In an era before photocopiers – let alone computers and word processors – lawyers would routinely consult form books containing samples of many different types of contracts when called upon to draft a particular type of agreement.  General form books typically contained hundreds of agreements, organized by type, that could be quickly and cost-effectively deployed by the contract drafter when the need arose.  Since these books provide a historical record of what provisions were typically included from specific types of agreements at a particular time, they offer a potential means by which scholars can get a general sense for the prevalence of the choice-of-law clause in a particular era.  One need only select a well-known form book from a given year, count the number of contracts in the form book, and determine what percentage of those contracts contain choice-of-law clauses.

Using this approach, I reviewed more than two dozen form books with the aid of several research assistants.  The earliest form book dated to 1860.  The contracts in that book contained not a single choice-of-law clause.  The most recent form book dated to 2019.  Sixty-nine percent of the contracts in this book contained a choice-of-law clause.  The bulk of our time and attention was spent on form books published between these years.  With respect to each book, we recorded the total number of contracts contained therein as well as the number of those contracts that contained a choice-of-law clause.  When our work was done, it became clear that the choice-of-law clauses were infrequently used until the early 1960s, as demonstrated on the following chart.

While the clause was known to prior generations of contract drafters, it was not widely used until 1960.  This is the year in which the clause truly began its long march to ubiquity.

There are many possible explanations for why the choice-of-law clause gained traction at this particular historical moment.  One possibility is that the enactment of the Uniform Commercial Code (UCC) spurred more parties to write choice-of-law clauses into their agreements.  Significantly, the draft UCC contained a provision that specifically directed courts to enforce choice-of-law clauses in commercial contracts when certain conditions were met.  Although the UCC was first published in 1952, it was substantially revised in 1956 and was not enacted by most states until the early 1960s.  It may not be a coincidence that one sees an uptick in the number of choice-of-law clauses appearing in form books at the same moment when many states were in the process of enacting a statute that directed their courts to enforce these provisions.

Language

The second part of the paper chronicles the changing language in choice-of-law clauses.  This inquiry also presents certain methodological challenges.  It is obviously impossible to review and inspect every choice-of-law clause used in the tens of millions of U.S. contracts that entered into force over the past 150 years.  In order to overcome these challenges, I turned to a somewhat unusual source – published cases.  Over a period of several years, I worked with more than a dozen research assistants to comb through such cases in search of choice-of-law clauses.  Whenever we found a clause referenced in a case, we inputted that clause – along with the year the contract containing the clause was executed and the type of contract at issue – to a spreadsheet.  When the work was complete, I had collected 3,104 choice-of-law clauses written into contracts between 1869 and 2000 that selected the law of a U.S. jurisdiction.  We then set about analyzing the language in these clauses.  In conducting this analysis, I ignored the choice of jurisdiction (e.g., New York or England).  I was concerned exclusively with the other words in the clause (e.g., made, performed, interpreted, construed, governed, related to, conflict-of-laws rules, etc.).

This inquiry generated a number of interesting insights.  First, I found that the Conflicts Revolution in the United States had little to no impact on the way that choice-of-law clauses were drafted.  The proportion of clauses referencing the place where the contract was made or the place where it was to be performed remained constant between 1940 and 2000.  Second, I found that while the proportion of clauses containing the words “interpreted” or “construed” similarly remained constant during this same time frame, the proportion of clauses that containing the word “governed” rose from 40 percent in the 1960s to 55 percent in the 1970s to 68 percent in the 1980s to 73 percent in the 1990s.  It is likely that this increase was driven in part by court decisions rendered in the late 1970s suggesting that the word “govern” was broader than the word “interpret” or “construe” in the context of a choice-of-law clause.

Third, I found that it can be extremely difficult to predict when contract drafters will revise their choice-of-law clauses.  In contemporary practice, one routinely comes across clauses that carve out the conflicts law of the chosen jurisdiction.  (“This Agreement shall be governed by the laws of the State of New York, excluding its conflicts principles.”)  This addition constitutes a relatively recent innovation; the earliest example of such a provision appears in a case decided in 1970.  In the 1980s, roughly 8 percent of the clauses in the sample contained this language.  By the 1990s, the number had risen to 18 percent.  While there is no real harm in adding this language to one’s choice-of-law clause, the overwhelming practice among U.S. courts is to read this language into the clause even when it is absent.  Its relatively rapid diffusion is thus surprising.

Conversely, very few contract drafters revised their clauses during this same time period to select the tort and statutory law of the chosen jurisdiction.  This omission is baffling.  U.S. courts have long held that contracting parties have the power to select the tort and statutory law of a particular jurisdiction in their choice-of-law clauses.  It stands to reason that large corporations (and other actors in a position to dictate terms) would have raced to add such language to their clauses to lock in a wider range of their home jurisdiction’s law to be invoked in future disputes.  The clauses in the sample, however, indicate that the proportion of clauses containing such language held constant at 1 percent to 2 percent throughout the 1970s, 1980s, and 1990s.  The failure of this particular innovation to catch on during the relevant time period is likewise surprising.

Conclusion

The foregoing history looks to contract practice as it relates to choice-of-law clauses in the United States.  There is no reason, however, why scholars in other nations could not deploy some of the same research methods to see if the choice-of-law clauses in their local contracts exhibit a similar trajectory.  (Among other things, my paper contains a detailed discussion of methods.)  Most well-resourced law libraries contain old form books that could be productively mined to determined when these provisions came into vogue across a range of jurisdictions.  A review of such books could shed welcome light on the evolution of the choice-of-law clause over time across many different jurisdictions.

[This post is cross-posted at Blue Sky Blog, Columbia Law School’s Blog on Corporations and the Capital Markets]

As previously announced on this blog, the Albert-Ludwig-University of Freiburg (Germany) will host, on 10–11 October 2019, the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover) Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration which is still possible here.

The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) 2013 lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has finally come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).

Here is an overview kindly provided by the author:

The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.

The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.

The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.

More information can be found here.

Le procureur de la République de Paris, Rémy Heitz, et l’archevêque de Paris, Monseigneur Michel Aupetit, ont annoncé le 5 septembre la signature d’un protocole d’accord visant à la transmission à la justice des signalements d’infractions sexuelles au sein de l’Église « paraissant vraisemblables » sans attendre le dépôt de plainte de la victime. Un magistrat référent a été désigné. Si le signalement concerne un mineur, c’est la section des mineurs du parquet de Paris qui s’occupera du dossier. La section en charge de l’action publique territoriale prendra en charge les majeurs.

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Le droit des « aéronefs sans équipage à bord », c’est-à-dire des drones, résulte d’une articulation entre une législation européenne, qui résulte de trois règlements, et un droit interne composé d’une loi et d’une série de décrets et d’arrêtés.

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By Nicolás Zambrana-Tévar LLM(LSE), PhD(Navarra), KIMEP University

On 2 September, the First Instance Court number 24 of Palma de Mallorca (Spain) issued an auto (interlocutory decision) staying proceedings commenced against Meliá Hotels International S.A., one of the biggest Spanish hotel chains, on grounds of immunity from jurisdiction, act of state doctrine and lack of international jurisdiction.

The claimant was Central Santa Lucía L.C., a US company which considers itself the successor of two Cuban corporations: Santa Lucía Company S.A. and Sánchez Hermanos. These two legal entities owned a sugar plantation and other pieces of land in Cuba. Following the revolution of 1959 in this country, those properties were expropriated by Law 890 of 1960. The expropriated land under discussion – known as Playa Esmeralda – is now owned by Gaviota S.A. a corporation of the Cuban State. The Cuban Government authorized Meliá to manage and exploit the land for touristic purposes and Meliá now owns two hotels on that landplot. The claimants contended that Meliá was conscious of the illegitimacy of the expropriation but had nevertheless sought to profit from it. This is apparently the first such claim in Europe and the decision staying the proceedings can still be appealed.

The claim was based on the argument that, since what the claimant describes as “confiscation” had been contrary to international law, it was null and void and the US company – as successor of the original Cuban proprietors – should still be considered the rightful owner of the land. Meliá was now in possession of the land and was profiting from it in bad faith, conscious of the illegitimacy of the property title of the Cuban state. The claimant contended that under article 455 of the Spanish Civil Code, possessors in bad faith must hand over not only the profits of their illegitimate exploitation but any other fruits that the legitimate possessor could have obtained.

This claim filed by the US company was against a legal entity domiciled in Spain. Therefore and under normal circumstances, the Spanish court would have had jurisdiction. However, the Spanish court understood that it did not. First of all, article 21 of the Spanish Judiciary Law (Ley Orgánica del Poder Judicial) and article 4 of Organic Law 16/2015 on immunities of foreign states establish that Spanish courts shall not have jurisdiction against individuals, entities and assets which enjoy immunity from jurisdiction, as provided by Spanish law and Public International Law. The Cuban State and the property owned by its company – Gaviota – were therefore and in principle protected by the rules on immunity but the Cuban State had actually not been named as a respondent in the claim and its object was not the expropriated property itself but the profits from its exploitation. The decision does not explain why the property of a commercial corporation owned by the Cuban State – as opposed to the State itself – also enjoys immunity.

The decision goes on to say that Spain subscribes to a limited understanding of immunity from jurisdiction (articles 9 to 16 of Organic Law 16/2015), so that claims arising from the commercial relations between Gaviota and Meliá for the touristic development of the land – acta iure gestionis – might not be covered by immunity. Nevertheless, the Spanish court understood that the true basis for the claim were not the relations between Gaviota and Meliá – commercial or otherwise – but the alleged illegitimacy of the expropriation – acta iure imperii –, the property title that Cuba now has over the land and any responsibility incurred by Meliá for illegitimately profiting from the situation. Santa Lucía could only have a right to the illegitimate profits if it was considered the rightful owner and this entailed a discussion about a truly sovereign act: the expropriation.

Therefore, it can be said that the court’s rationale is actually more akin to the act of state doctrine of English and US law, whereby courts should refuse to hear cases where they are called to question the conduct of foreign governments or acts of any sovereign entity within their own territory. For a finding that Meliá had illegitimately profited from Santa Lucía’s disgrace, not only the knowledge of the expropriation by the Spanish company but the illegality of the expropriation itself would have had to be discussed before the Mallorca court.

Additionally, the court explains that Spanish courts do not have jurisdiction to hear claims concerning property rights – ownership or possession, in this case – over immovable assets located outside Spain. The court wrongly considers that EU Regulation 1215/2012 is applicable to this case. However, the immovable property under discussion is located outside the EU, so the Regulation actually does not apply. Similarly and as indicated above, the court considers that article 455 of the Spanish Civil Code is applicable, notwithstanding the fact that article 10.1 of the same norm establishes that the law applicable to property rights will be the law of the place where they are located.

This decision and this claim by Cubans “exiled” in the US arrives after the US announced the end of the suspension of Title III of the 1996 Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (aka Helms–Burton Act), which effectively opens the door to lawsuits in the US by providing a right of action for all US nationals (i.e. including naturalized Cubans and their descendants) whose property was taken by the Cuban Government after the revolution. Such claims can be directed against anybody – regardless of nationality – who “profits” from, “traffics” with or otherwise has an “interest” in such property.

European Union officials have recently voiced their concern for these potential lawsuits against European investors in Cuba and have reminded that some countermeasures were already foreseen when the law was passed in 1996. Several members of the European Commission have also warned the US Government that the EU may launch a case before the WTO and that it already has in place a “blocking statute” which bans the recognition and enforcement of any of the resulting US judgements against European companies and that also allows them to recover in EU courts any losses caused by claims under Title III, against assets that US claimants may have in the EU. The Spanish Government has also set up a special committee to study these risks, given the important commercial interests of Spanish companies in the Caribbean island. In this regard, Miami lawyers confirm that many families of Cuban origin are now requesting legal advice. The swift way in which the Spanish case here discussed has been decided may be an incentive for those families to claim in the US – and not in Europe – under the newly activated Helms-Burton act.

I reviewed Bobek AG Opinion in Case C-347/18 Salvoni v Fiermonte earlier. The referring court enquires whether the court of origin tasked with issuing the Article 53 Certificate (issued with a view to enabling swift recognition and enforcement) may, of its own motion, seek to ascertain whether the judgment whose enforcement is sought was issued in breach of the rules on jurisdiction over consumer contracts, so that it may, where appropriate, inform the consumer of any such breach and enable her to consider the possibility of opposing enforcement of the judgment in the Member State addressed.

The CJEU has entirely confirmed the AG’s Opinion (no English version at the time of posting): no such second-guessing of jurisdiction.

At 34 ff the Court points out an important distinction with certificates issued with a view to enforcing provisional measures: there, the court issuing the certificate does carry out jurisdictional review (whether the court ordering the measures  has jurisdiction as to the substance of the case).

At 40 ff the Court also confirms that substantive consumer protection laws (such as Directive 93/13) do not transfer to the procedural /jurisdictional rules of Brussels Ia: an important conclusion overall.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.16.

Arnaud K., 36 ans, a été condamné à 5 ans de prison, dont 3 ans avec sursis, pour une tentative de viol sur Cécile L. R. 12 ans après les faits, sans plaignante (décédée en 2012), sans partie civile, sans témoin, sans expert. L’expérimentation doit durer 3 ans, dans sept départements.

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The second issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:

Adrian Briggs, Professor at Oxford University, Brexit and Private International Law: An English Perspective (in English)

The effect of Brexit on private international law in England will depend on the precise terms on which the separation is made. However, if no comprehensive withdrawal agreement is concluded and adopted, the result will be that private international law in the United Kingdom will revert to its original common law structure. This will make the law and practice of dispute resolution more effective in some respects, and more problematic in others. While it is regrettable that so much time and labour has to be spent on planning for a future which the politicians are incapable of defining, it does allow the distinctions between common law legal thinking, and European legal principles, in the field of private international law to be compared and understood more clearly than they have been for many years.

Burkhard Hess, Director of the Max Planck Institute Luxembourg for Procedural Law, Protecting Privacy by Cross-Border Injunction (in English)

Injunctive relief is of paramount importance in the protection of privacy, especially in the context of the Internet. In the cross-border setting, injunctions entail specific problems: on the one hand, jurisdiction may lie with many courts – often worldwide due to the ubiquity of the Internet. On the other hand, injunctions operate with an extraterritorial effect, ordering or prohibiting conduct outside of the State where the court issuing the order is located. Cross-border injunctive relief does not only raise issues of jurisdiction and territorial scope: in fact, additional problems relate to its enforcement. Furthermore, the need may arise to adapt the injunction to an equivalent measure in the State of enforcement. This paper addresses the problems of cross-border injunctive relief from the perspectives of jurisdiction and territorial scope, as well as of recognition and enforcement. While actions for damages and for injunctive relief are regulated in similar ways, the Author of this paper demonstrates that the specific circumstances and necessities that characterize injunctive relief warrant additional and specific solutions.

Chiara E. Tuo, Associate Professor at the University of Genoa, The Consequences of Brexit for Recognition and Enforcement of Judgments in Civil and Commercial Matters: Some Remarks (in English)

This article aims at addressing some questions regarding the impact of Brexit on recognition and enforcement of judgments in civil and commercial matters with a view to investigating the rules applicable, first, in the case that Brexit occurs without any withdrawal agreement (“hard Brexit”) and, second, regardless of whether such an agreement will be actually entered into, in the context of a future and renewed judicial cooperation relationship between the EU and UK. To this end and in relation to the first part of the analysis, the relevant passages of both the EU Commission’s guidelines and UK statutory instruments dealing with the issue of recognition and enforcement of judgments are taken into exam and compared the ones with the others in order to assess the different extent to which they provide for the continuous post-Brexit application of the existing EU instruments. On the other hand, and in relation to the second part of the article, the options currently available for a future EU-UK cooperation are considered with the purpose of shedding some light on their respective main advantages and disadvantages.

In addition to the foregoing, the following comments are featured:

Cinzia Peraro, Post-Doctoral Fellow at the University of Verona, L’istituto della kafala quale presupposto per il ricongiungimento familiar con il cittadino europeo: la sentenza della Corte di giustizia nel caso S.M. c. Entry Clearance Officer (Kafala as a Prerequisite for Family Reunification with a European Citizen: The Judgment of the Court of Justice in S.M. v. Entry Clearance Officer; in Italian)

The family reunification of a European citizen and a foreign minor entrusted to him by kafala has been addressed by a recent judgment of the Grand Chamber of the Court of Justice on the notion of direct descendant pursuant to Directive 2004/38 concerning the free movement of Union citizens and their family members. The Italian judges have also dealt with the issue of the recognition of this institute, widespread in most Islamic countries, in a variety of situations, where the best interests of the child and the European courts’ decisions have been considered. Domestic jurisprudence appears to be in line with the interpretation given by the judges of Luxembourg, which nevertheless leaves the question of the unequal treatment between Italian citizens and third country nationals unresolved.

Mariangela La Manna, Post-Doctoral Fellow at the Università Cattolica del Sacro Cuore, The ECHR Grand Chamber’s Judgment in the Naït-Liman Case: An Unnecessary Clarification of the Reach of Forum Necessitatis Juridsdiction? (in English)

The Grand Chamber judgment in the Naït-Liman v. Switzerland case is certainly a much anticipated one. Its outcome had, however, long been foreshadowed by commentators and practitioners alike. The decision confirmed the 2016 Chamber’s judgment by holding that the Swiss Federal Tribunal’s decline of jurisdiction in a civil case involving reparation for torture committed outside the territory of Switzerland by foreign authorities against a foreign national did not amount to a violation of Article 6(1) ECHR. However, the Court’s reasoning in the case under review is susceptible of being criticized in more than one respect. The compatibility of the conduct of the Swiss judiciary with Article 6(1) ECHR is dubious to say the least, even more so since the Federal Tribunal’s restrictive interpretation of the requirements for the application of forum necessitatis jurisdiction, and especially of the “sufficient connection” requirement, managed to produce a fully-fledged denial of justice. Should such a trend gain consistency, the effectiveness of the right of access to a court may be put at risk.

The Department of Law of Loyola University Andalusia will be hosting an International Conference on 20-21 January 2020 in Seville, Spain, to discuss the impact of digitalization.

The Conference which will revolve around five major thematic areas from a multi-disciplinary approach, will also include panels on digitalization and Private International Law. 

This International Conference will be a unique opportunity to discuss the new technological and digital challenges with an outstanding group of experts from different fields and a great venue to create and consolidate scientific and collaborative networks. Some of the experts who have already confirmed their participation include professors from Cornell, Harvard and other universities worldwide, officials from the United Nations, UNIDROIT, judges, members of the EU Commission expert groups, lawyers and ICT professionals.

Senior and junior scholars (including Ph.D. students) and professionals at all stages of their careers are invited to submit abstracts on some of the following, fairly broad, topics or any other related issues of novel and ground-breaking character: Ability of the basic principles of private international law to adapt to the immateriality of the digital space and new approaches to the theory of private international law in the digital context.

SUBMISSION PROCEDURE AND TIMELINE

• We invite authors to submit extended abstracts of a minimum of 800 words with the author’s name, affiliation and an updated CV including contact details to the conference directors, in the item “Documents” on the website: www.ict2020.es. All submissions may be written in either English or Spanish.
• The submitted abstracts will be assessed and selected by the Conference’s international scientific committee. In addition to the quality of the proposals, special consideration will be given to gender balance and the representation of professionals, associations and social partners in the different panels.
• The deadline for submitting proposals is 15 October 2019.
• Authors of selected abstracts for the Conference will be notified by 15 November 2019.
• The deadline for submitting the final draft paper (3,000-5,000 words) is 10 January 2020. A ‘no paper – no podium’ strict policy applies.
• The Conference will be held at the Dos Hermanas campus of Loyola University Andalusia, in Seville, on 20-21 January 2020.
• Authors of accepted abstracts are expected to bear the costs of their own travel and accommodation.
• The Conference directors are planning to publish the most relevant papers presented in the conference.
• The deadline for submitting the final version of the selected papers (6,000-8,000 words) will be 21 February 2020. Further information about the publication process will be conveyed to selected proposal authors in due course.

VENUE

The Conference will be held at the Sevilla-Ciudad del Conocimiento campus of Loyola University Andalusia in Dos Hermanas, Seville.  Seville’s Old Town contains three UNESCO World Heritage Sites: the Real Alcazar palace complex, the Gothic Cathedral and the General Archive of the Indies. Other important sites are the Golden Tower (Torre del Oro), the Maria Luisa’s Park & Plaza de España and the ruins of the Roman City “Itálica”, used as location for some scenes of the television series Games of Thrones.

For more information, visit the official Conference website.

Scientific Committee

• Tine Sommer (Professor of Law, Advisory Board Member of CREDI, Center for Law and Digitalization, University of Aarhus, Denmark);
• Víctor Luis Gutiérrez Castillo (Associate Professor of Public International Law, University of Jaén);
• Fernando Miró Llinares (Professor of Criminal Law and Criminology, Miguel Hernandez University, CRIMINA Research Center);
• Alberto Elisavetski (Professor Law, Untref University of Buenos Aires, Director of On Line Dispute Resolution Latinamerica);
• Michael D. Green (Professor of Law, Wake Forest University, North Carolina, USA);
• Marie-Cécile Escande-Varniol (Professor of Law, Universidad Lumière Lyon 2)

Co-directors

• Manuel Paniagua Zurera (Professor of Commercial Law, Loyola University Andalusia);
• Gloria Fernández- Pacheco Alises (Assistant Professor of Criminology, Loyola University Andalusia);
• Maria Lubomira Kubica (Assistant Professor of Civil and Comparative Law, Loyola University Andalusia);
• Jonatan Cruz Ángeles (Assistant Professor of Public International Law, Loyola University Andalusia);
• Rafael Aguilera Gordillo (Part-time Lecturer of Criminal Compliance and International Security, Loyola University Andalusia);
• Ana Mercedes López Rodríguez (Associate Professor of Private International Law, Head of the Law Department, Loyola University Andalusia)

The CJEU today has held in C‑172/18 AMS Neve, confirming Szpunar AG’s Opinion which I briefly reviewed earlier. Eleonora Rosati has excellent analysis here and I am happy to refer entirely. As I note in my handbook, ‘targeting’, ‘directed at’ and ‘business models’ are a variety of jurisdictional triggers across EU law. The lack of uniform terminology does not assist the unsuspected reader or practitioner.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in his Opinion).