Droit international général

by Zoltán Fabók, Fellow of INSOL International, Counsel at DLA Piper (Hungary) and PhD Candidate at Nottingham Trent University

Insolvency-related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR’s provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi-annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi-annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty.

In my paper, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi-annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi-annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi-annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi-annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi-annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi-annex judgements.

My research article has been accepted for publication by International Insolvency Review. The paper can be accessed in the Early View section at http://onlinelibrary.wiley.com/doi/10.1002/iir.1284/full.

[The author wishes to thank Justice Hossam Hesham Sadek, Vice President of the Civil and Commercial Chamber of the Court of Cassation, and reporting judge in the case at hand, for granting access to the Supreme Court’s ruling].

1.  Introduction

In a recent ruling (22/05/2017), the Egyptian Court of Cassation tackled with the issue of service of process abroad. The facts of the case were the following: The claimant (and appellant) was an Egyptian Medical Equipment company, situated in Cairo. The respondents and appellees were a Chinese company, with its seat in Nanshan district, Shenzen, the Egyptian General Organization for Import and Export Control, and an Egyptian company, with its seat in Heliopolis, Cairo.

2. Facts and instance ruling

The Appellant filed a lawsuit against the Chinese Company and the Second Appellee at Cairo Court of Appeal, requesting a judgment obliging the First Appellee to pay the amount of ten million Egyptian pounds as monetary and moral compensation resulting from the contract’s termination. The Appellant asserted that it had been assigned as the sole agent of the First Appellee in Egypt, for selling ultrasonic wave devices, and that it was unexpectedly notified by the First Appellee that the contract was terminated.

The first instance court ordered that the lawsuit be dismissed for lack of proper service to the Chinese company. The Appellant claimed that service had been effected through the Public Prosecution Office, following all necessary procedures through diplomatic channels in China, pursuant to article 13 (9) of the Egyptian Civil and Commercial Code of Procedure (CCCP), and by notification of the claim to the first Appellee’s legal representative (Commercial Agent) pursuant to article 13 (5) CCCP.

Article 13 (9) CCCP states that, if no international treaty or a specific provision of law is applicable, service shall be made by delivering the documents to the public prosecutor, who then forwards them to the Minister of Foreign Affairs, to be delivered through diplomatic channels to the country of destination. Art. 13 (5) CCCP stipulates that, if service is addressed to a foreign company that has a branch or agent in Egypt, domestic service shall be effected (i.e. to the branch or agent located in Egypt).

3. The Supreme Court ruling

The Court of Cassation referred initially to Art. 13 (5) & (9) CCCP. It then mentioned Articles 3 & 14 of the Judicial Cooperation Treaty on Civil, Commercial and Criminal Matters between the Arab Republic of Egypt and The People’s Republic of China, signed on 21/4/1994, which stipulates that: “For the purposes of requesting and providing judicial assistance, parties shall communicate through their central authorities unless otherwise provided for in this Treaty. Central authorities of both parties are represented by the Ministries of Justice. Both parties shall serve judicial documents in civil and commercial matters pursuant to Hague Convention on the service Abroad of Judicial and Extrajudicial Documents in civil or Commercial Matters concluded on 15/11/1965’’.

Based on the above, the Court of Cassation decided as follows: The Hague Convention exclusively stipulates methods, means and conditions for serving judicial documents unless agreed between the Parties on other methods pursuant to Article 11 of the same Convention, and obliges the judge to stay proceedings, save when a document was served by a method prescribed by the internal law of the State addressed, or when the document was actually served to the defendant in its residence under one of the methods prescribed in the Convention in sufficient time to enable him to arrange for his defence.

Since the legislator has permitted in Article 13(5) CCCP that foreign companies may be served by delivering a copy to its branch or agent in Egypt, their existence is considered a question of fact under the exclusive competence of the court. Accordingly, the Court of Cassation confirmed the instance decision, which ruled that service made to the first Appellee through the third appellee (Trade And Importing Company in Heliopolis), ostensibly being its commercial agent and representative, was improper, since the representative of the latter denied its relation with the first Appellee.

Finally, delivering the document to the Public Prosecution in order to take necessary actions towards service by diplomatic channels is not sufficient, because notice was not delivered / served to the first Appellee.

4. Conclusion

The judgment offers a valuable insight into the practice of Egyptian courts in regards to notification of documents abroad. It is noteworthy that the Court of Cassation examined carefully all legal regimes related to the subject matter: It referred to domestic law (CCCP), the Egyptian – Chinese bilateral treaty, and the multilateral convention, to which the bilateral convention refers. The question whether service of process abroad was necessary or not was decided on a substantive level: Given that the appellant failed to demonstrate that the third appellee was the representative of the Chinese company, the court rightfully considered that service solely to the local Transmission Authority through the Prosecutor’s Office does not suffice. Hence, whenever the Hague Service Convention applies, the Court of Cassation dismisses fictitious service (remise au parquet).

By Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.

In response to the United Kingdom’s intention to leave the jurisdiction of the Court of Justice of the European Union after Brexit (see in this respect the policy paper on providing a cross-border civil judicial cooperation framework issued by the Department for Exiting the European Union), Carl Baudenbacher, the President of the Court of the European Free Trade Association (EFTA), has just published an interesting article which advocates that the United Kingdom could use his court to resolve disputes. According to him, the relationship of the EFTA Court and the CJEU is based on judicial dialogue. On the one hand, the EFTA Court as a rule follows relevant case law of the CJEU. On the other hand, the CJEU usually follows EFTA Court case law, both explicitly and implicitly. In case of a conflict between the two courts, the EFTA Court is, in his opinion, not easily “outgunned” by the CJEU. By contrast, he highlights that the EFTA Court has gone its own way on essential questions of European single market law. Nonetheless, he argues that the case law of the EFTA Court and the CJEU must develop in a homogeneous way.

The article can be found here.

The second issue of 2017’s Journal of Private International Law has been published.

Just how free is a free choice of law in contract in the EU? by Peter Mankowski

Free choice of law appears to be the pivot and the unchallenged champion of the private international law of contracts. Yet to stop at this would be a fallacy and would disregard the challenges it has to face. Those challenges come from different quarters. In B2C contracts in the EU not only the more favourable law principles as enshrined in Article 6(2) of the Rome I Regulation must be observed, but also any requirements which the Unfair Contract Terms Directive imposes. Transparency in particular ranks high. In Verein für Konsumenteninformation v Amazon the Court of Justice of the European Union has imposed duties on businesses and professionals to inform their consumer customers about at least the existence and the basic structure of the more favourable law principle. This landmark decision might not stand on ground as firm as it implies at first sight. Its fundament might be shaken by inconsistency. But practice has to comply with it and has to observe its consequences. On a more abstract level, it raises ample necessity to reflect about the modern-day structure of “free” choice of law. In this context, it is argued that the system established for parties’ choice of law in the Rome I Regulation does not allow for a content review of choice of law agreements.

Constitutionalizing Canadian private international law – 25 years since Morguard by Joost Blom

Because of its structuring function, private international law tends to be given a status distinct from the ordinary rules of domestic law. In a federal system, private international law of necessity implicates some aspects of the constitution. In a series of cases beginning in 1990 the Supreme Court of Canada has engaged in a striking reorientation of Canadian private international law, premised on a newly articulated relationship between private international law and the Canadian constitutional system. This constitutional dimension has been coupled with an enhanced notion of comity. The new dynamic has meant that changes in private international law that were initially prompted by constitutional considerations have gone further than the constitutional doctrines alone would demand. This paper traces these developments and uses them to show the challenges that the Supreme Court of Canada has faced since 1990 in constructing a relationship between Canada’s constitutional arrangements and its private international law. The court has fashioned the constitutional doctrines as drivers of Canadian private international law but its own recent jurisprudence shows difficulties in managing that relationship. The piece concludes with lessons to be learned from the experience of the last 25 years.

Freedom of establishment, conflict of laws and the transfer of a company’s registered office: towards full cross-border corporate mobility in the internal market? by Johan Meeusen

Cross-border corporate mobility in the internal market has developed in particular through the interpretation by the Court of Justice of the European Union of the Treaty provisions on freedom of establishment. Certain issues at the crossroads of conflict of laws and European Union (EU) law are still the subject of debate. One of these is whether freedom of establishment includes a right to solely transfer a company’s registered office between Member States. As such transformation results in a change of the company’s lex societatis, it is intrinsically linked to the debate on regulatory competition in the EU internal market, freedom of choice and the proper balancing of the public and private interests involved. The author defends a nuanced position, referring to the true meaning of “establishment” in the internal market, the policy of “safe” regulatory competition and the equivalence of the Member States’ conflict of laws rules.

The recast of the Insolvency Regulation: a third country perspective by Nicolò Nisi

During the recasting process of the EU Insolvency Regulation, issues relating to the relationship between the Regulation and the outer world were not debated. Indeed, the new Regulation (EU) 2015/848 maintains its territorial scope of application by making the application of the Regulation subject to the location of the centre of main interests within the territory of a Member State. This article tries to highlight the drawbacks of such geographical limitation concerning different aspects of the Regulation: in particular, jurisdiction, groups of companies, recognition of insolvency proceedings, cooperation and communication among courts and insolvency practitioners. Considering various possibilities to establish a truly universal regime, the article concludes that, in the light of the objective of an efficient administration of insolvency proceedings, the preferred approach is to extend the scope of application of the Regulation unilaterally, thereby including insolvencies significantly linked with third States.

A new frontier for Brussels I – private law remedies for breach of the Regulation? by Ian Bergson

The English courts have held that the Brussels I Regulation confers private law rights, such that an employee may obtain an anti-suit injunction on the basis of their “statutory right” to be sued in England under the employment provisions of the Regulation. This article examines the correctness of this proposition and argues that the Regulation does not confer rights or impose obligations on private individuals that they may enforce against one another. The article goes on to consider the implications of the English decisions and their remedial consequences, including the possibility of seeking an award of damages for breach of the Regulation.

Exclusive choice of court agreements: some issues on the Hague Convention on choice of court agreements and its relationship with the Brussels I recast especially anti-suit injunctions, concurrent proceedings and the implications of BREXIT by Mukarrum Ahmed and Paul Beaumont

This article contends that the system of “qualified” or “partial” mutual trust in the Hague Choice of Court Agreements Convention (“Hague Convention”) may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably23 not permit remedies for breach of exclusive jurisdiction agreements as they may infringe the principles of mutual trust and effectiveness of EU law (effet utile) underlying the Brussels I Recast Regulation. The relationship between Article 31(2) of the Brussels I Recast Regulation and Articles 5 and 6 of the Hague Convention is mapped in this article. It will be argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation’s reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The impact of Brexit on this area of the law is uncertain but it has been argued that the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.

The Asian Principles of Private International Law: objectives, contents, structure and selected topics on choice of law by Weizuo Chen and Gerald Goldstein

The Asian Principles of Private International Law (APPIL) finalized in 2017 is a project undertaken by private international law scholars of 10 East and Southeast Asian jurisdictions to harmonize the region’s private international law rules or principles. Containing principles on choice of law, international jurisdiction, the recognition and enforcement of foreign judgements, and the judicial support of international commercial arbitration, they are the first harmonization effort in Asia based on comparative analyses of the private international law of the 10 participating APPIL-Jurisdictions. Being the first “voice of Asia” in private international law, they may serve as a model for national and regional instruments and thus may be used by the private international law legislators of Asian jurisdictions to interpret, supplement and enact their own private international law statutes; and may even be applied by state courts and arbitral tribunals, albeit not as legally binding instrument but as “soft law”. They will mainly function as a private international law model law.

The “statutist trap” and subject-matter jurisdiction by Maria Hook

Common law courts frequently rely on statutory interpretation to determine the cross-border effect of legislation. When faced with a statutory claim that has foreign elements, courts seek to determine the territorial scope of the statute as a matter of Parliamentary intent, even if it is clear that Parliament did not give any thought to the matter. In an article published in this journal in 2012, Christopher Bisping argued that “statutism” – the idea that statutory interpretation should determine whether a statute applies to foreign facts – is inconsistent with established principles of choice of law. The purpose of this paper is to demonstrate that, in addition to cutting across principles of choice of law, a statutist approach has the potential to obscure fundamental questions of subject-matter jurisdiction. In particular, statutism can lead to conflation of subject-matter jurisdiction and choice of law, and it impedes the development of coherent principles of subject-matter jurisdiction.

State of play of cross-border surrogacy arrangements – is there a case for regulatory intervention by the EU? by Chris Thomale

Mother surrogacy in and of itself, as a procreative technique, poses a series of social, ethical and legal problems, which have been receiving widespread attention. Less prominent but equally important is the implementation of national surrogacy policies in private international law. The article isolates the key ethical challenges connected with surrogacy. It then moves on to show how, in private international law, the public policy exception works as a vehicle to shield national prohibitive policies against international system shopping and how it continues to do so precisely in the best interest of the child. Rather than recognizing foreign surrogacy arrangements, national legislators with intellectual support by an EU model law, should focus on adoption reform in order to re-channel intended parents’ demand for children.

The University of Valencia (Spain) will be organising a conference on 8 September 2017 on selected issues regarding the new Regulations 2016/1103 and 2016/1104. The conference is part of the project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters” which is co-financed by the European Commission and organised by the University of Innsbruck together with the Universities of Genoa, Prague, Riga, Valencia, Zagreb and the legal publisher IPR Verlag.

The conference is chaired by Prof. Carlos Esplugues, University of Valencia and Prof. Andreas Schwartze, University of Innsbruck.

Topics and speakers:

Overview over Regulations 2016/1103 and 2016/1104, Mr. Franco Salerno-Cardillo, Notary in Palermo (Italy), Council of the Notariats of the European Union (CNEU)

Interaction of Regulations 2016/1103 and 2016/1104 with the Brussels IIa Regulation, Ass. Prof. Dr. Pablo Quinzá, University of Valencia (Spain)

Interaction of Regulations 2016/1103 and 2016/1104 with the Succession Regulation, Ass. Prof. Marion Ho-Dac, University of Valenciennes (France) 

Drawing the border line between Succession Regulation and Matrimonial Property Regulation, Prof. Rainer Hausmann, University of Konstanz (Germany)

Choice of law in the Matrimonial Property Regulation no. 2016/1103, Dr. Susanne Goessl, University of Bonn (Germany)

European Land Registry Association (ELRA) – Application of Regulations 2016/1103 and 2016/1104 in “non-uniform” systems, Mr. Gabriel Alonso Landeta, Land Register in La Coruña (Spain)

Application of Regulations 2016/1103 and 2016/1104 by notaries, Ms. María Reyes Sánchez Moreno, Notary in Alicante (Spain), Council of the Notariats of the European Union (CNEU)

Application of Regulations 2016/1103 and 2016/1104 by land registers, Mr. Mihai Taus, Head of land registry Dept. Of Brasov County Office (Romania), European Land Registry Association (ELRA)

Registration to the conference is possible by sending an email to Ass. Prof. Dr. Pablo Quinzá: pablo.quinza@uv.es.

Please find further information and a detailed conference timetable here.

Or please contact us: anke.schaub@unalex.eu

 

Tobias Gosch has excellent overview of T v O (why o why do States feel the need the hide the identity of companies in commercial litigation) in which the Austrian Supreme Court (Oberster Gerichtshof) ruled on whether potential claims under the Austrian Commercial Agents Act (Handelsvertretergesetz) can be brought before an Austrian court even if the underlying agency agreement contains an arbitration clause and is governed by the laws of New York.

The contested part of the litigation, as Tobias writes, concerns the following: the Agent conducted the procurement of sea freight business in Austria and other countries of the European Union for the Principal. Whilst the territorial scope of the Agent’s activities complies with the conditions for the international overriding mandatory applicability of the compensation provisions of the Directive as set out by the ECJ in Ingmar, the procurement of business is not covered by the relevant definition in the Directive, which only refers to the sale or purchase of goods. Including the procurement of business therefore is a form of gold-plating and the national law’s decision to do so does not uncontestedly fall under the protection of overriding mandatory law. In other words it does not necessarily override parties’ choice of law and ensuing choice of court.

The judgment refers inter alia to Unamar to justify its direction. Rather like, as I reported at the time, the Belgian Supreme Court, the Austrian Supreme Court, too, fails properly to assess whether the Austrian legislator intended the Austrian provisions to be of overriding mandatory law character per Rome I: “1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

The European Court of Justice’s general statement in Unamar that gold-plated provisions may fall under overriding mandatory law, looks set by national courts to be turned into a matter of fact priority.  That surely at some point ought to be disciplined by the CJEU.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8.3.

 

 

The Department for Exiting the European Union has published a policy paper on providing a cross-border civil judicial cooperation framework – a future partnership paper – as part of the negotiations with the EU on Brexit. The paper outlines the United Kingdom’s position on cross-border civil judicial cooperation for the time after Brexit.

The summary reads as follows:

1. As the United Kingdom leaves the European Union, the Government will seek a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.
2. To this end, the UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.
3. We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now.
4. Cooperation with the EU is one part of the UK’s global outlook in this field. The new agreement with the EU would be integral to the UK’s strategy to enhance civil judicial cooperation more widely. Beyond our relationship with the EU, the UK will remain committed to maintaining and deepening civil judicial cooperation internationally, both through continued adherence to existing multilateral treaties, conventions and standards, and through our engagement with the international bodies that develop new initiatives in this field.
5. The EU has presented its position on civil judicial cooperation in the context of separation. The UK is clear that it is in the interests of both the UK and the EU for cooperation in this field to continue as part of our future partnership. Nonetheless, in response, Annex A presents the UK’s view of the principles that should govern the winding down of our existing relationship in the event that no agreement on a future relationship can be reached.

Considering the EU’s position on civil judicial cooperation (see post by Giesela Ruehl on conflictoflaws.net) the “future deep and special partnership” might prove to be not more than wishful thinking and we will rather see a “winding down” of existing relationships, as Annex A suggests.

Bobek AG opined mid July in C-194/16 Bolagsupplysningen OÜ on the application of the Shevill rule, as supplemented by e-Date advertising, to infringements of a company’s personality rights over the internet.  This is one of those Opinions where summaries fall much, much short of the contents of the original document and I should urge readers to consult the Opinion in full.

An Estonian company operating in Sweden was blacklisted for its allegedly questionable business practices on the website of a Swedish employers’ federation. The Advocate General dryly notes ‘(a)s inevitably happens in the era of anonymous internet bravery, universally known for its genteel style, subtle understanding, and moderation, the website attracted a number of hostile comments from its readers. The Estonian company brought an action before the Estonian courts against the Swedish federation. It complained that the published information has negatively affected its honour, reputation and good name. It asked the Estonian courts to order that the Swedish federation rectify the information and remove the comments from its website. It also requested damages for harm allegedly suffered as a result of the information and comments having been published online.

Can the Estonian courts assert jurisdiction to hear this action on the basis of the claimant’s ‘centre of interests’, a special ground of jurisdiction that the Court previously applied to natural persons, but so far not legal persons? If they can, then second, how should the centre of interests of a legal person be determined? Third, if the jurisdiction of the Estonian courts were to be limited to situations in which the damage occurred in Estonia, the referring court wonders whether it can order the Swedish federation to rectify and remove the information at issue.

The Advocate General suggests there are two novelties in the questions referred: a legal person (not a natural one) is primarily asking for rectification and removal of information made accessible on the internet (and only secondarily for damages for the alleged harm to its reputation). This factual setting, the AG suggests, leads to the question of how far the seemingly quite generous rules on international jurisdiction previously established in Shevill with regard to libel by printed media, and then further extended in eDate to the harm caused to the reputation of a natural person by information published on the internet, may be in need of an update. At the real root of course of the generous rules on jurisdiction for tort, lies the Court’s judgment in Bier. Bobek AG joins Szpunar AG in severely questioning the wisdom of the Bier rule in the age of internet publications.

Now, human rights scholars will enjoy the Advocate General’s tour d’horizon on whether and to what extend companies may enjoy human rights. On the whole I believe he is absolutely right in suggesting that there ought to be no difference between legal persons and natural persons when it comes to the very possession of personality rights (such as the right not to be libelled) and that neither is there any ground to distinguish between natural persons and legal persons when it comes to the jurisdictional consequences of upholding these rights.

Then, to the jurisdictional consequences (para 73 onwards): the AG suggests that ‘putting Shevill online’ (the AGs words) essentially means granting the forum to a large number of jurisdictions simultaneously, 28 within the European Union. That is because allegedly false or libelous information on the internet is instantly accessible in all Member States. Bobek AG suggests such multiplicity of fora stemming from the distribution criterion is very difficult to reconcile with the objective of predictability of jurisdictional rules and sound administration of justice enshrined in recital 15 of the Brussels I Recast Regulation, and does not serve the interests of claimant (although the AG concedes that in litigation practice, sending the defendant on a goose chase throughout the EU may be an attractive proposition). Now, in Bier the CJEU upheld jurisdiction for both locus damni and for locus delicti commissi on the grounds that this was attractive from the point of view of evidence and conduct of proceedings: this gives both the ‘special link’ which the special jurisdictional rules require. Whether the Court will be swayed by the argument that in the internet context, neither is of relevance, remains to be seen. It is true that number of clicks, which presumably is the relevant criteria to establish ‘damage’ in the context of Article 7(2), can be established just as well outside the jurisdiction as inside it (Google Analytics being used in a variety of national proceedings). It is also true however that Bier and Shevill are dogma for the Court and it is unlikely that it will simply abandon or even vary them.

Variation is all the more unlikely in the direction of the alternative suggested by the AG: locus delicti commissi relates to whoever is in charge of publishing and altering the content of the online information. So far so good: this is a useful clarification of Shevill in the internet age and one that has as such been so applied by national courts. Harm then would in the AG’s view have to be defined as where the reputation of the claimant was most strongly affected. That is the place of his centre of interests. The AG further suggests (at 104 ff) that in the case of a profit-making legal person, that is, a company, the jurisdiction is likely to correspond to the Member State where it attains the highest turnover. In the case of non-profit organisations, it is likely to be the place where most of its ‘clients’ (in the broadest sense of the word) are located. In both cases, such a Member State is likely to be the one where the damage to reputation and therefore to its professional existence is going to be felt the most. However in all cases, assessments needs to be fact-specific, and moreover, more than one centre of interests could potentially be established (at 116); that latter concession of course is not likely to endear the AG to the Court, given the requirement of predictability.

Answering then the query re injunctions (under the assumption that is an injunction sought by way of final remedy, not an interim measure), the AG employs the possibility of conflicting directions issued by courts with jurisdiction as to the merits of the case, as further argument to support his view on locus damni. This issue could raise interesting discussions on the usefulness of directions to remove internet content from particular websites only.

All in all, there is an awful lot of to the point analysis by the AG in this opinion. However the Court’s repeated reluctance to vary Bier and Shevill, a formidable obstacle.

Geert.

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

 

Professor S.I. Strong has just posted a new paper on international procedural law.  From the abstract:

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners and academics from around the world with a new perspective on international procedural law.

The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights and the rule of law.

The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.

The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics and practitioners in the United States and abroad and offers ground-breaking insights into the nature of international procedural rights.

Prof. Dr.Dr. Fabrizio Marrella has just published his course entitled “Protection internationale des droits de l’homme et activités des sociétés transnationales/International Protection of Human Rights and Activities of Transnational Corporations”, delivered at The Hague Academy of International Law in 2013, as vol. 385, 2016, of the Recueil des cours/Collected Courses (RCADI).

Here is a short abstract:

Since the 1960’s the regulation of multinational corporations has become a hot topic in the international agenda. Fifty years later, the negative (or positive) impact of transnational corporations activities on human rights has steadily increased. Economic globalization has largely involved the activities of transnational corporations and such a trend has even been powered by Nation States. Since the end of the Second World War, Governments have liberalised trade and investment flows and more recently, to cut public deficits, they have started the decentralization, outsourcing and privatization of certain classic functions of the State. International Human Rights Law is based on an inter-State matrix where international responsibilities are imposed on Nation-States, not directly on corporations. Therefore, forum shopping and law shopping strategies have been used by some transnational corporations in order to hide behind State sovereignty while benefiting from dogmas of Public International Law denying any international responsibility for them.

In 2011, the UN Human Rights Council  unanimously adopted the UN Guiding Principles on Business and Human Rights (UNGPs), which is the first global standard for preventing and addressing the risks of adverse impacts on human rights linked to business activities. The UNGPs encompass three pillars outlining how states and businesses should implement the framework: 1) The state duty to protect human rights; 2) The corporate responsibility to respect human rights and 3) Access to remedy for victims of business-related abuses.

Such a framework clearly identifies different roles and “responsibilities” but does not differentiate situations of “accountability” from those of “legal responsibility”. It makes Corporate Social Responsibility operative through the obligation of “due diligence” and impact evaluations to identify and remedy adverse effects.

All that has implications both for public international law and for private international law. Private international law analysis, in particular, becomes crucial to explore, as it is done in the second part of the course, the legal meaning of the implementation of the third pillar of the UNGPs, i.e. on access to remedies for victims of violations of human rights committed in the context of business activities. If remedies precede rights, it is regrettable that the third pillar turns out to be the weakest one as compared to the other two. Indeed, it becomes evident that the proliferation of international treaties of protection of human rights, international acts, supervisory bodies, laws, initiatives of RSE or doctrinal studies, risk to remain just different forms of political dialogue if they have no effective legal use for victims on the ground.

Further information, including a table of contents and some extracts, is available on the publisher website.

 

Portare avanti un blog – non importa se di poche pretese, come questo – richiede una scorta di tempo, idee, energie e motivazione, nonché qualche soldo da parte per far fronte alle spese. La redazione di Aldricus non dispone più di queste risorse. Nel chiudere il blog, ringraziamo di cuore tutti quanti hanno contribuito a rendere bella questa esperienza.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be hosting its XL Seminar entitled “The Migration of Persons and Capital within the Framework of Private International Law” at the Universidad Autónoma de San Luis Potosí (San Luis Potosí, Mexico) from 15 to 17 November 2017. The seminar will focus on a wide array of topics such as international legal co-operation, international family law, international contracts, and alternative dispute resolution.

Potential speakers are invited to submit a paper in Spanish, English, French or Portuguese by 1 October 2017. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available by mid-October. It is envisaged that registration for the seminar will be free of charge for all participants by sending a message to the e-mail included below. Please note that space is limited.

More detailed information will soon be made available on the Mexican Academy website http://www.amedip.org/amedip_mexico/.  Some information is already available on the Facebook page of the Mexican Academy, click here. Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

Applications for the 2018 Nygh Hague Conference Internship Award are open and close on 30 September 2017.

The award contributes towards the costs of a student or graduate of an Australian law school working for up to six months at the Secretariat of the Hague Conference on Private International Law in the Netherlands. It aims to foster Australian involvement in the work of the Hague Conference and is established in honour of the late Hon. Dr. Peter Nygh AM. The Australian Institute of International Affairs and the Australian Branch of the International Law Association sponsor the award.

Further details and information on how to apply is available at:  http://www.internationalaffairs.org.au/news-item/2018-nygh-internship-applications-open/.

Prof. Symeon C. Symeonides,Willamette University – College of Law, uploaded recently two articles on SSRN.

The Third Conflicts Restatement’s First Draft on Tort Conflicts Abstract

This Article discusses the first draft of the proposed Third Conflicts Restatement dealing with tort conflicts. The Draft’s most noteworthy features include: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common home state in loss-allocation conflicts; and (3) a rule giving victims of cross-border torts the right to request the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable,

The Draft is a vast improvement from the Second Restatement. It accurately captures the decisional patterns emerging in the more than forty U.S. jurisdictions that have joined the choice-of-law revolution, and which have been cast in statutory form in the successful codifications of Louisiana and Oregon. It strikes an appropriate equilibrium between certainty and flexibility and generally makes good use of the lessons of the revolution without reproducing its excesses.

Suggested citation:

Symeonides, Symeon C., The Third Conflicts Restatement’s First Draft on Tort Conflicts (August 5, 2017). Tulane Law Review, Vol. 92, 2017. Available at SSRN: https://ssrn.com/abstract=3014068

What Law Governs Forum Selection Clauses Abstract

This Article examines how American courts answer the question of which law governs the enforceability and interpretation of forum selection (FS) clauses in cases that have contacts with more than one state. It divides the cases into categories, depending on whether the question is litigated in the court chosen in the FS clause or in another court, and whether or not a choice-of-law clause accompanies the FS clause.

The Article finds that: (1) When the action is filed in the court chosen in the FS clause, all courts ap-ply the internal law of the forum state, without any choice-of-law analysis, both in interpreting the clause and in determining its enforceability; and (2) When the action is filed in another court, most courts apply the internal law of the forum (with or without a choice-of-law analysis) in determining whether the clause is enforceable and the law that governs the contract in interpreting the clause.

The Article explains why the distinction between interpretation and enforceability is necessary, and why the application of forum law to the question of enforceability is appropriate.

Suggested Citation:

Symeonides, Symeon C., What Law Governs Forum Selection Clauses (August 5, 2017). Louisiana Law Review, Vol. 78, No. 4, 2018. Available at SSRN: https://ssrn.com/abstract=3014070

In addition, mention needs to be made to his recent lecture at the Hague Academy, which was published June this year.

Private International Law: Idealism, Pragmatism, Eclecticism. General Course on Private International Law, Volume 384

More details can be found here.

The Max Planck Institute for Procedural Law in Luxembourg and the Vrije Universiteit Brussel are jointly organising a Conference on ‘Jurisdiction, Conflict of Laws and Data Protection in Cyberspace’ which intends to contribute to the ongoing discussion on the challenges to the protection of privacy in the Digital Age. The organizers describe this event as follows:

„Thanks to the Internet, people who are thousands of miles apart can effortlessly engage in social interactions, business transactions and scientific dialogue. As pointed in by John Perry Barlow in his famous ‘Declaration of the Independence of Cyberspace’, all these activities rely – more or less consciously – on sophisticated data-exchanges which take place ‘both everywhere and nowhere’, lying outside the borders of any particular State.

Against this backdrop, the regulatory challenge posed by the ephemeral nature of the information exchanged via the Web – and of the Web itself – is twofold. While Private International Law struggles to frame the allegedly borderless nature of cyberspace within the dominant discourses of law and territoriality, Data Protection Law has to reconcile the individuals’ fundamental right to privacy with the public interests connected to the processing of personal data.

The conference will explore some of the most controversial issues lying at the intersection between these two areas of law, by addressing, in particular, the problems arising in connection with cross-border telematics exchanges of data in the field of biomedical research and the contractual relationships stemming from social networking and the use of social media.“

The conference will take place at the Max Planck Institute in Luxembourg on Thursday, 12 October 2017. Participation is free of charge. For a list of speakers, the full programme and details on registration, please see here.

Following the formation of a specialized law drafting committee nearly 4 years ago, the implementation Act on cross border placement of children in accordance with Art. 56 Brussels IIa has been published in the Official State Gazette on June 23, 2017. The ‘Act’ constitutes part of a law, dealing with a number of issues irrelevant to the subject matter in question. The pertinent provisions are Articles 33-46 Law 4478/2017.

Art. 33 establishes the competent Central Authority, which is the Department for International Judicial Cooperation in Civil and Criminal Cases, attached to the Hellenic MoJ. Art. 34 lists the necessary documents to be submitted to the Greek Central Authority. Art. 35-37 state the requirements and the procedure for the placement of a child to an institution or a foster family in Greece. Advance payment for covering the essential needs of the child, and the duty of foreign Authorities to inform the respective Greek Central Authority in case of changes regarding the child’s status, are covered under Art. 38 & 39 respectively.

Art. 40 regulates the reverse situation, i.e. the placement of a Greek minor to an institution or a foster family within an EU Member State. A prior consent of the competent foreign State Authority is imperative, pursuant to Art. 41. The necessary documents are listed under Art. 42, whereas the procedure to be followed is explained in Art. 43. The modus operandi regarding the transmission of the judgment to the foreign Authority is clarified in Art. 44. A duty of the Prosecution Office for minors to request information on the status of the child at least every six months is established under Art. 45. Finally, Art. 46 covers aspects of transitional nature.

Prima facie it should be stated that the implementing provisions are welcome. In a country where not a single domestic tool has been enacted in the field of judicial cooperation in civil matters since the Brussels Convention era, this move allows us to hope for further initiatives by the government. However, swiftness is the key word in the matter at stake, and I wouldn’t be sure whether the procedure enacted would fully serve the cause.

Beyond that, there are some other hot topics related to the Brussels IIa Regulation and its implementation in Greece, the first and foremost being the rules and procedures for issuing the certificates referred to in Art. 39, 41 & 42 [Annexes I-IV of the Regulation]. Bearing in mind that the latter forms almost part of the court’s daily routine (at least in major first instance courts of the country), priority should have been given to an implementing act providing guidance on this issue, in stead of opting to elaborate on a matter with seemingly minimal practical implications.

Last but not least, it should be reminded that a relevant study has been released last year, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee of the European Parliament, which may be retrieved here.

The Permanent Bureau of the Hague Conference on Private International Law has recently issued a document illustrating the application of the 1996 Hague Child Protection Convention to unaccompanied and separated children.

The document, drafted in preparation of the upcoming meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, concludes that dialogue and collaboration “should be facilitated between authorities responsible for international co-operation in child protection matters – at both the domestic and international levels – with those responsible for immigration and asylum matters, with regard to the operation of the 1996 Convention in order to better assist unaccompanied and separated children across borders”.

The hope is also expressed, among other things, that “UNICEF and UNHCR officials will meet with government officials from some Central Authorities designated under the 1996 Convention to discuss and examine the application of the 1996 Convention to unaccompanied and separated children” and that “the global implementation of the 1996 Convention will assist with the on-going elaboration and future realisation of the United Nations Global Compact on Refugees and Global Compact for Migration”, referred to in the New York Declaration for Refugees and Migrants adopted by the General Assembly of the United Nations on 19 September 2016.

The editors of CoL decided to enlarge their team in order to increase the coverage of certain jurisdictions and regions. All (existing and new) editors are of course free and encouraged to report on interesting issues beyond their home jurisdictions.

Today we very warmly welcome on board (in alphabetical order):

Mukarrum Ahmed (UK)

Asma Alouane (France)

Apostolos Antimos (Greece)

Pamela Bookman (USA)

Mayela Celis (Hague Conference)

Adeline Chong (Singapore)

Rui Dias (Portugal)

Maria Hook (New Zealand)

Brooke Adele Marshall (Australia)

Ralf Michaels (USA)

Rahim Moloo (USA)

Marie Nioche (France)

Richard Oppong (Africa)

Ekaterina Pannebakker (Russia)

Sophia Tang (China/UK)

Zeynep Derya Tarman (Turkey)

Guangjian Tu (China) 

Please feel invited to click on the profiles of the new editors and learn more about them (if you do not know them already anyway). The existing editors are looking forward to working with their new colleagues on CoL and to seeing more of the intriguing field of the conflict of laws worldwide.

Giesela and Matthias

We have already alerted our readers to the preliminary reference triggered by the Estonian Supreme Court concerning violations of personality rights of legal persons committed via the internet (Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB; see our previous post here). Recently, AG Bobek has presented his conclusions in this case (see here). Anna Bizer, doctoral candidate at the University of Freiburg, has kindly provided us with her thoughts on this topic:

After the case eDate (C-509/09 and C-161/10), the CJEU will have to rule on the question of how Art. 7 (2) Brussels Ibis is to be interpreted when personality rights are violated on the internet for the second time. This case provides not only the first opportunity to confirm or correct the Court’s ruling on eDate, but also poses further questions:

1) Which courts have jurisdiction when the claimant seeks removal of the publication in question?
2) Should legal persons be treated the same way as natural persons under Art. 7(2) Brussels Ibis concerning personality rights?
3) If question 2) is to be answered in the affirmative, where is the centre of interest of a legal person?

AG Bobek holds the following opinion:
•In cases concerning personality rights violations on the internet, the place where the damage occurs is the place where the claimant has his centre of interest – regardless of whether the claimant is a natural or legal person. The same applies to claims of removal.
•The place where a legal person conducts its main professional activities is its centre of interest.
•It is possible that a person has more than one centre of interest.
•The mosaic approach as developed in case Shevill should not be applied to personality infringements on the internet at all.

The facts

The claimant is an Estonian company operating mostly in Sweden whose management, economic activity, accounting, business development and personnel department are located in Estonia. The company claims to have no foreign representative or branch in Sweden. A Swedish employers’ federation blacklisted the Estonian company for “deals in lies and deceit” on its website, what led to an enormous amount of comments capable of deepening the harm to the company’s reputation. All information and comments were published in Swedish and caused a rapid decrease in turnover, which was listed in Swedish kroner.
The Estonian company brought an action before Estonian courts asking for rectification of the published information and removal of the comments from the website as well as damages for pecuniary loss. The referring court doubted its jurisdiction based on the Brussels Ibis Regulation.

The Law

The basic principle in jurisdiction is that claims have to be brought before the courts where the defendant is domiciled (Art. 4 Brussels Ibis). According to Art. 7 Brussel Ibis, the claimant can also choose to sue before the courts of a member state that have special jurisdiction, i.e. in tort cases, the place where the harmful event originated as well as the place where the harm was suffered. In Shevill (C-68/93), the CJEU ruled that the courts of those member states have jurisdiction where the establishment of the publisher is located as well as the courts of the state in which the newspaper was published and where the claimant asserts to have suffered harm to his reputation. The latter jurisdiction is limited to the harm suffered in this member state. Concerning the violation of personality rights and reputation on the internet (eDate), the CJEU transferred the Shevill-ruling to online publications and added a third possibility: the courts of the member state where the victim has his centre of interest.

Reasoning of AG Bobek

AG Bobek answers the questions in three parts: First, he explains why the jurisdiction of the courts in the member state where the centre of interest is located should be open to legal persons as well (A). In a second step, he proposes a more strict interpretation of Art. 7 (2) Brussels Ibis compared to the case eDate and gives reasons why the mosaic approach should not be applied to personality infringements on the internet at all (B). In the last part, he aims at giving an alternative solution for claims for an injunction ordering the rectification and removal if the CJEU decides to continue with the mosaic approach (C).

(A) AG Bobek sees the main reason for creating the new head of jurisdiction in eDate in the protection of fundamental rights. Examining the case law of the CJEU and the ECtHR, he records that the personality and the reputation of legal persons are protected but restrictions are easier to justify that restrictions to rights of natural persons. In his opinion, fundamental rights should not be valued differently. Hence, the protection of fundamental rights of natural persons as intended by eDate should be at the same level as the protection of the fundamental rights of legal persons.
He recommends, however, that the CJEU puts aside the issue of fundamental rights since the Brussels Ibis regulation must be applied to determine jurisdiction as long as a legal person can sue the alleged violator of its personality rights or reputation according to the Member States’ law. Therefore, the CJEU has to answer the Estonian court’s questions regarding its jurisdiction irrespective of the level of protection.
As Art. 7 (2) Brussels Ibis is applicable to claims concerning the violation of personality rights of a legal person, a distinction between legal and natural persons within this regulation might only be justified if natural persons were typically the “weaker party”. AG Bobek objects to this general assumption mentioning the diversity of legal persons, on the one hand, and the growth of power that natural persons experience thanks to the medium internet on the other hand. He also points out that special jurisdiction does not aim to protect a weaker party but to “facilitate the sound administration of justice” (Recital 16 Brussels Ibis). Therefore, natural and legal persons should not be treated differently under Art. 7 (2) Brussels Ibis.

(B) According to AG Bobek, the mosaic approach is not adequate for cases concerning the violation of personality rights on the internet. As online publications can be accessed worldwide, lawsuits might be brought in all 28 member states. The mosaic approach is based on the idea that the harm in one member state can be measured. But unlike newspapers online publications do not have a number of copies that can be counted. Especially due to the easy access to machine translation it is impossible to measure the harm suffered in one member state. The opportunity to sue in 28 different states leads to the possibility of abuse and is also not compatible with the aim of predictability of jurisdiction. The mosaic approach also provokes difficulties to coordinate the different proceedings, especially concerning lis pendens and res judicata.
Therefore, AG Bobek proposes the following: The place where the event giving rise to harm took place should be the location of the person(s) controlling the information typically being identical with the domicile of the publisher. The place where the harm occurred should be “where the protected reputation was most strongly hit”, i.e. the person’s centre of interest.
According to AG Bobek, the centre of interest depends on “the factual and social situation of the claimant viewed in the context of the nature of the particular statement”. For natural persons, the habitual residence should be the basic element. Concerning legal persons, the centre of interest is in the member state where it “carries out its main professional activities provided that the allegedly harmful information is capable of affecting its professional situation”. That is supposed to be where the legal person records the highest turnover or, in the case of non-profit organisations, where most of the clients can be located.
AG Bobek argues that in respect of a specific claim, a (natural or legal) person can have more than one centre of interest. Consequently, a claimant with more than one centre of interest can choose between several member states. Each jurisdiction identified that way comprises the entire harm suffered.

(C) Concerning the rectification and removal of a publication, AG Bobek states that those claims are indivisible by nature because of the unitary nature of the source. AG Bobek argues that an alternative solution is actually impossible even if the CJEU prefers to continue with the mosaic approach.
The overall result remains that the mosaic approach is not an adequate solution for personality infringement on the internet.

Assessment of the AG’s opinion

AG Bobek raises some important issues concerning the infringement of personality rights on the internet. Following the AG’s opinion, the result will typically be that Art. 7 (2) Brussels Ibis allows the claimant to sue before the courts of the member state where he has his domicile. Thus, it creates a forum actoris that is the complete opposite of the basic rule of jurisdiction according to which the claimant has to sue at the domicile of the defendant (Art. 4 Brussels Ibis). Exceptions to a basic rule should be applied restrictively and only where the law explicitly allows doing so or where the aim of the law requires an exception.

Concerning the place where the event giving rise to harm took place, I can agree with AG Bobek. In internet cases, the crucial place of acting is normally the place where the allegedly infringing publication was uploaded. The disadvantage of this approach is that this place can be random and may lack the specific connection to the place. This applies especially when a natural person uploads the publication while travelling. Thus, the approach of the AG proposing the place where the person normally has control over the publication avoids jurisdiction based on a merely fugitive connection to a member state.

AG Bobek quite rightly points out that the mosaic approach is not adequate for the medium internet due to the worldwide accessibility. And since the European conflict-of-law system excludes personality rights and reputation (Art. 1(2)(g) Rome II), the mosaic approach applied to online cases can provoke forum shopping – especially if applied to claims for an injunction for rectification or removal.

The CJEU maybe should consider determining the centre of interest by other criteria that take more into account the specific circumstances of the case. Applying the definition of AG Bobek, the place where the harm occurs will almost always be where the claimant has his main administration (or his habitual residence in case of a natural person) irrespective to how strong the connection to another state may be. In the case at hand, the pecuniary damage and the economic consequence are probably in Estonia but the appearance of the company is mainly affected in Sweden. For example, the comments (mainly in Swedish and uploaded from Sweden) can not only be personality violations themselves but also show that the originally published information affected the reputation of the company in Sweden.

Furthermore, it is doubtful whether a person can have various centres of interest. It shifts the balance of interests that was tried to reach in eDate to the advantage of the claimant: the claimant may ask for the entire damages in another state than the state of the defendant’s domicile (advantage to the claimant) but he cannot choose between different states– and thus between different choice-of-law rules – as it would be possible under the mosaic approach (advantage for the defendant). Of course, there might be cases where the centre of interest is difficult to identify. The approach of the AG, however, implies that in those difficult cases the claimant might just choose. I am not sure if this really fosters predictability. Besides, it is somehow contradictory because the concept of the centre of interest is that even if the person-ality is affected in another state to a considerable extent, the courts in that state should not have jurisdiction.

I cannot agree with the AG concerning the relevance of fundamental rights. Of course, the level of protection is not relevant to the question whether the Brussels Ibis Regulation is applicable or not – including special jurisdiction. Nevertheless, the fundamental rights can influence how jurisdictional rules have to be interpreted. AG Bobek himself states that eDate can be understood as the protection of fundamental rights. Thus, the CJEU should consider whether the decision on eDate offering a claimant-friendly approach is owed to the fact that it is necessary to protect fundamental rights of the affected natural persons. If that is the case, the reasoning cannot simply be transferred to legal persons. It is rather necessary to check if the personality rights and the reputation of a legal person can justify the restrictions to the rights of the defendant, e.g. freedom of speech.

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabel Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:

Holger Fleischer, Spezialisierte Gerichte: Eine Einführung (Specialized Courts: An Introduction)

Specialized courts are on the rise. This introduction takes a look at different patterns and types of judical specialization both nationally and internationally. It also addresses potential advantages and disadvantages of a specialized judiciary.

Anatol Dutta, Gerichtliche Spezialisierung für Familiensachen (Specialized Courts for Family Matters)

In many jurisdictions, matters of family law are dealt with by specialized family courts. After outlining the different approaches from a comparative perspective (section I.), the article argues that a specialization in the area of family law is desirable. Family matters are not only self-contained from a substantive as well as procedural law perspective and clearly distinguishable from civil and commercial matters, but they are also characterised by a considerable degree of complexity which justifies judicial specialization (section II.). Furthermore, the dangers connected with specialized courts do not materialise in this area of law (section III.). However, a sensible specialization in family matters requires certain conditions as to the organisational structure and staffing of the competent courts (sections IV.1. and IV.3.). These conditions depend upon the role substantive family law assigns to courts. The paper argues that modern family law has abandoned its therapeutic attitude – family law matters are no longer regarded as a potential indication of pathologic families – therefore necessitating a legally oriented and conflict-solving judge rather than a court with a “therapeutic atmosphere”. Moreover, the jurisdiction of family courts has to be defined carefully – for example, regarding the question of whether matters of juvenile delinquency and succession matters are to be handled by family courts (section IV.2.). Finally, the paper alludes to a tendency to remove family matters from courts by shifting them to extra-judicial institutions or even to the parties and their party autonomy (section V.).

Matteo Fornaser, Streitbeilegung im Arbeitsrecht: Eine rechtsvergleichende Skizze (Dispute Settlement in Employment Matters: A Comparative Overview)

Labour disputes are resolved through a broad array of resolution mechanisms. Interests disputes which arise when collective bargaining fails to reach an agreement on the terms of employment are generally settled through extra-judicial conciliation and arbitration procedures. State courts have no role to play in this context since interests disputes are not adjudicated on the basis of legal norms. Rather, such disputes are settled by reaching a compromise which strikes a fair balance between the competing interests of the parties involved. Rights disputes, on the other hand, are generally resolved through specialized state courts and, though more rarely, private arbitration (e.g. in the U.S.). The emergence of these mechanisms has resulted from a general dissatisfaction with the performance of ordinary state courts in resolving labour disputes: employers have taken the view that ordinary state courts are not sufficiently acquainted with the customs and usages of employment, while employees have feared that the courts are biased in favour of employers. The creation of special courts, including lay judges appointed by employers and employees, has sought to tackle these problems and to meet the needs of labour and management. One important aim of labour courts is to facilitate access to justice for employees with a view to ensuring that litigants are on an equal footing. Thus, in most jurisdictions the labour court procedure is designed to reduce litigation costs, e.g. by expediting proceedings and by limiting the right of an employer to recover attorney’s fees from the employee-plaintiff in the event the claim is dismissed. Another way to ensure that proceedings before labour courts are speedy and inexpensive is to provide assistance to the parties so as to facilitate their reaching an amicable settlement. With regard to substantive law, labour courts play a dual role. First, they facilitate the enforcement of employee rights and, thus, complement substantive employee protection rules. Second, the emergence of specialized courts for the settlement of employment matters has had a deep impact on the development of labour law as a distinct field of law both in scholarship and practice.

Wolfgang Hau, Zivilprozesse mit geringem Streitwert: small claims courts, small claims tracks, small claims procedures (Small Claims: Courts, Tracks, Procedures)

In principle, constitutional standards require courts to deal with actions irrespective of the amount in controversy. But this does not necessarily mean that it is appropriate to let ordinary courts apply the standard rules of civil procedure in small claims cases. Rather, it is commonly understood that petty litigation raises particular problems and deserves special solutions. The question of how to design such organizational and/or procedural rules seems to gain momentum perpetually and across all jurisdictions. A comparative and historical analysis reveals an amazing variety of approaches and solutions, i.e. small claims courts, small claims tracks and small claims procedures. When providing special rules for small claims disputes, law-makers normally purport to facilitate access to justice, but more often than not try to cut costs. The latter aim, however, is not to be disregarded since affordability of justice is of utmost importance; moreover, there are numerous examples illustrating that procedural rules which emerged by necessity rather than by design may stand the test of time. Yet one should accept that both goals – removing barriers to justice and relieving the burden on the justice system ? are unlikely to be simultaneously achieved: you cannot have your cake and eat it. Both aims can be reached only if one is willing to cut down on the quality in the administration of justice (in particular as regards factfinding, the legal assessment of the case and the respondent’s rights to defend). But in a system governed by the rule of law, this is no less acceptable than the converse, i.e. restricting access to justice as a means of cost-efficiently providing a high-quality system to a reduced number of lawsuits. High standards of accessible justice come at a price: a reasonably funded and elaborated judicial infrastructure available even for small claims.

Holger Fleischer, Sebastian Bong and Sofie Cools, Spezialisierte Spruchkörper im Gesellschaftsrecht (Specialized Courts in Company Law)

Specialized courts are on the advance in many locations. This development is on display also in commercial law and company law. The present article cannot address the topic in its entirety and focuses instead on those judicial bodies that adjudicate internal corporate disputes. Three historic and comparative examples illustrate the particular types of institutions that have been formed. At the outset, the venerable German Divisions for Commercial Matters (Kammern für Handelssachen) are analysed, followed by likely the two best-known special courts for company law matters: the Delaware Court of Chancery and the Companies and Business Court (Ondernemingskamer) of the Amsterdam Court of Appeals. These three case studies are followed by a number of comparative observations on specialized judicial bodies in company law.

Stefan Reuter, Das Rechtsverhältnis im Internationalen Privatrecht bei Savigny (Savigny and Legal Relationships in Private International Law)

In the legal system conceptualised by Savigny, legal relationships serve as the starting point. Savigny defines a legal relationship as a relation between two people or between one person and an object as determined by legal rules. Accordingly, a legal relationship always has two elements: a material element (the specific facts in question) and a formal element (the legal rules). For example, where the facts of a concrete case involving two people match the conditions of the contract law rules, a legal relation exists between these two people. As compared to a legal relationship, a legal institution consists only of formal elements, namely legal rules, having the same subject matter. For example, all legal provisions regarding marriage form the legal institution of marriage. Although Savigny uses legal relationships as the starting point in both substantive law as well as in private international law, he creates different categories of legal relationships for each of them. Whereas in substantive law Savigny distinguishes between four categories (law of property, law of obligations, family law and law of succession) he adds a fifth category for the sake of private international law: legal capacity. In substantive law, Savigny defines legal capacity not as a legal relationship but only as a pre-condition of a legal relationship. This seems logical given that legal capacity cannot be described as a relation either between two people or between one person and an object, with such a relation being an essential condition according to Savigny’s definition of a legal relationship. Nevertheless, in private international law it is generally accepted that legal capacity needs its own, separate conflict rule. Legal capacity was therefore one of the subjects of private international law, and for this reason Savigny re-categorised it as a legal relationship for the purpose of conflict of laws. Ultimately, no advantages follow from having legal relationships serve as the starting point in private international law – as opposed to legal institutions or legal rules. Legal relationships do not result in a greater number of connections nor in a de-politicization of private international law. Rather, difficulties result when attempting to classify legal relations unknown to the lex fori.