Droit international général

In April 2018  the European Commission presented a proposal for a directive amending Directive 2017/1132 relating to certain aspects of company law as regards cross-border conversions, mergers and divisions (COM(2018) 241 final).

In July 2018 a group of professors of the Universitat Autònoma de Barcelona (Autonomous University of Barcelona) drew up a document to comment on some aspects of the proposal.

The paper was presented at a public hearing organised by the European Economic and Social Committee (EESC) on 10 September 2018, in Thessaloniki (Greece), in the context of the discussion within the EESC leading to the adoption of an opinion on the said proposal.

The paper, in English, can be found here.

Many thanks to Filbert Lam, a former student of mine, for alerting me to another interesting case in comparative conflict of laws: the story of Li Shengwu is recalled here.

The Singapore Prime Minister’s nephew made remarks in a Facebook post, which were allegedly contemptuous of the judiciary. When he made those remarks, he was located in the US, where he intends to stay (and work). The Attorney-General’s Chambers (AGC) wants to serve the summons on him in the US. Under what circumstances can this be done and what is the impact of a procedural law seemingly assisting the AGC in serving the summons, but which would have to be applied retroactively in the case at issue?

The Court of Appeal proceeding will be one to look out for.

Geert.

On 25 October 2018, the University of Nice will host a seminar titled Space of Flows and the Law.

The event, part of a series of doctoral workshops on Multidisciplinary and Comparative Approaches to Globalization Phenomena, aims to discuss the idea of “flow space” and its possible relevance to the understanding of complex phenomena relating to globalization and transnational movement.

The main speakers are Benjamin Bowling (King’s College London), who will present his research on Global Policing, and Jean-Sylvestre Bergé (University of Nice), who will speak of his research on Full Movement Beyond Control and the Law.

Guillemine Taupiac-Nouvel (Uinversity of Pau-Bayonne) will moderate the discussion.

See here for further information.

The result of the 2016 Brexit referendum was not only a political shock, but also and foremost a symbolic turning point in the history of the EU. The United Kingdom’s foreseen withdrawal from the Union has given rise to many political, legal, economic and social debates.

The University of Milan-Bicocca will host the conference “Waiting for Brexit: open issues in the internal market and in the AFSJ” which will take place on 19 October 2018 with the aim of contributing to the analysis of the impact and possible effects of Brexit on both EU Law and Italian law in practice.

After a short overview of the main institutional aspects, national and international experts from various background (scholars, public officials, legal practitioners, industry representatives) will offer the audience with an insight into the changes that the withdrawal from the EU of a Member State will have on specific socio-economic areas.

In particular, the first part of the morning session, chaired by Prof Antonio Tizzano, will be devoted to some general overviews on the impact of Brexit on the European Union (Jacques Ziller), on the current state of the EU-UK negotiations (Carlo Curti Gialdino) and the role of the Court of Justice after the UK withdrawal (Kieran Bradley). The second part of the morning will then focus on the possible effects of Brexit on specific sectors, notably the transfer of personal data outside the EU taking into account the new GDPR (Bruno Gencarelli), as well as judicial cooperation in criminal matters in light of the recent case-law of the CJEU.

The afternoon session, chaired by Prof Fausto Pocar, will follow on and be dedicated to the likely effects of Brexit on banking and investment law (Giovanni Sabatini), competition law (Gabriella Muscolo), intellectual property law (Paul Torremans), company law (Rafael Arenas García), and the Dublin asylum system (Michael Wilderspin).

The conference is organised by Costanza Honorati (Full Professor of EU Law and Private International Law, University of Milan-Bicocca), Serena Crespi (Aggregate Professor of EU Law, University of Milan-Bicocca) and Paolo Iannuccelli (Référandaire at the Court of Justice of the European Union) within the framework of the Jean Monnet Module held at the University of Milan-Bicocca.

More information is available here.

On 16 and 17 November 2018, the University of Innsbruck will host a conference on the Regulations on matrimonial property and on the property consequences of registered partnerships which will enter into force on 29 January 2019. The conference, organised by Stefan Arnold (University of Münster) and Simon Laimer (University of Innsbruck), aims to discuss the new rules and their implications for the further development of the law.

The conference will be held in German. Participation is free of charge, but prior registration is required. The flyer can be found here.

The call as posted last week contained an error – the deadline for submission of the poster is not 1 October, but 1 November. My apologies. Find the correct text below.

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The conference Challenge Accepted! Exploring Pathways to Civil Justice in Europe will take place at Erasmus School of Law on 19-20 November. You are invited to join us and young researchers are reminded to send in their poster. The deadline is 1 November 2018

Young researchers will have the possibility to present and discuss their work during the poster on 20 November. Posters should focus on the topics of the conference, and show originality. We invite PhD researchers or young academics to present their research in a poster format. The three best posters will be awarded a prize during the closing drinks.

More information on submitting a poster proposal can be found here.

This conference is organised by Erasmus School of Law at Rotterdam University under the ERC project ‘Building EU Civil Justice’ (www.euciviljustice.eu).

For more information, do not hesitate to contact us at hoevenaars@law.eur.nl (Jos) or biard@law.eur.nl (Alexandre).

[2018] EWCA Civ 1889 Committeri v Club Med , appeal against Dingeman J’s findings in [2016] EHWC 1510 (QB) featured in a recent resit exam of mine, slightly later reporting therefore. Dingeman J’s analysis was confirmed by the Court of Appeal.

Mr Committeri lived and worked in London. He was injured when climbing an ice wall in Chamonix in France in 2011. He brought proceedings in England against Club Med and their insurers: they had provided the relevant travel and accommodation pursuant to a ‘team-building’ contract with the appellant’s employers, a Bank. The claim is pleaded by reference to that contract and Article L211-16 of the French Code de Tourisme (which imposes strict (safety) liability upon the providers of tourist accomodation: une obligation de résultat); contrary to English law which foresees in une obligation de moyens).

French law has considered that “proper performance of the contract” in a package holiday setting requires the absolute safety of the consumer, so that (unless the exceptions in the Code apply) when there is an injury on a package holiday the organiser will be liable.

The central issue is the proper characterisation of that claim. If it is a contractual claim then English law applies (the lex contractus agreed between the Bank and Club Med) and it is common ground that it will fail. If it is properly characterised as a non-contractual claim, French law applies and it is agreed that it will succeed.

CJEU authorities considered by Coulson LJ were in particular Brogsitter, Ergo, Verein Fur Konsumenteninformation v Amazon, and flightright. 

At 52 Coulson LJ summarises the modus operandi per the European precedents as follows:

‘(a) The mere fact that a contracting party brings a civil liability claim against the other party does not by itself mean that the claim concerns “matters relating to a contract” but it will be sufficient if the conduct complained of may be considered a breach of contract (Brogsitter [24]) or if the purpose of the claim is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract (Brogsitter [26]).

(b) Only an obligation freely consented to by one person towards another and on which the claimant’s action is based is a ‘matter relating to contract’ (Ergo [44]).

(c) The classification of an obligation for the purposes of Rome I or Rome II depends on the (contractual or non-contractual) source of that obligation (Amazon, AG’s opinion [48]). A contractual obligation implies at the very least an actual and existing commitment (Amazon [50]).’

I would have added what I called Sharpston AG‘s ‘pedigree’ (one of my students seems to have mistakenly noted this down as ‘Paddy Pee’), ‘ancestry’, or ‘centre of gravity’ test in Ergo.

At 53: ‘On an application of all or any of those principles, it is clear that the pleaded strict liability claim can only be characterised as a contractual claim. …That contract is the source of the relevant obligations and imposed the necessary commitments. To put it another way, to use Judge Waksman’s words in AXA ([2015] EWHC 3431 (Comm), the contract was not “a stepping stone to the ultimate liability of [the respondent but] the basis for the obligation actually relied upon…”.

A very useful reminder of the relevant precedents.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1.

The conference Challenge Accepted! Exploring Pathways to Civil Justice in Europe will take place at Erasmus School of Law on 19-20 November. You are invited to join us and young researchers are reminded to send in their poster. The deadline is 1 October.

Young researchers will have the possibility to present and discuss their work during the poster on 20 November. Posters should focus on the topics of the conference, and show originality. We invite PhD researchers or young academics to present their research in a poster format. The three best posters will be awarded a prize during the closing drinks.

More information on submitting a poster proposal can be found here.

This conference is organised by Erasmus School of Law at Rotterdam University under the ERC project ‘Building EU Civil Justice’ (www.euciviljustice.eu).

For more information, do not hesitate to contact us at hoevenaars@law.eur.nl (Jos) or biard@law.eur.nl (Alexandre).

Wahl AG advised  last week in Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case an NGO requests a certification body to stop certifying as ‘organic’, products obtained from religious slaughter, even though neither Council Regulation 834/2007 nor the Commission implementing Regulation 889/2008 on organic production and labelling of organic products with regard to organic production, labelling and control, mention stunned or unstunned slaughter.

I suggested earlier that the case turns around scope of application, albeit that the shadow of the human rights implications hangs over it. The Advocate General agrees: at 33: ‘the Court is therefore not strictly speaking required to rule on a question of interference with the freedom to manifest one’s religion’. In essence, what is not forbidden is allowed: the legislation on organic farming is silent on the question of ritual slaughter; (at 91) this silence on the matter is not the result of oversight for the ‘slaughter’ of animals is mentioned on several occasions in the legislation – is it just simply not regulated.

I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.

Geert.

In C-343/17 Fremoluc the CJEU held last week. It features as counsel no less than 3 fellow faculty at Leuven Law: 4 if one counts prof Cloots whom we foolishly let escape to elsewhere. Had we had either one of my two collegae proximi who serve as judges on the CJEU assigned to the case, there would have been more residents of Collegium Falconis at Kircherg on the day of any hearing then there have recently been at Faculty meetings. But I digress.

The case essentially concerns services of general economic interests (SGEIs), as applied to the social housing sector: what kind of measures may a Member State roll-out to support the provision of such housing, in light of the free movement of not just persons but also services and capital. By extension, the case-law is also relevant to property rights restrictions across the EU.

In the case at issue applicant had seen a purchase of land torpedoed by the right of pre-emption of a relevant agency, relating to building land situated in areas earmarked for house renovation and house-building in 26 municipalities in its operating area. Fremoluc suggested the condition in the underlying decree that ‘as regards the provision of homes or land in a social housing project…, absolute priority must be given, at any stage of the project, to prospective tenants, leaseholders or buyers who have strong social, economic or socio-cultural ties with the operating area in question’, constitute an illegal condition under EU law. Consequently, it argued, the right of pre-emptive purchase itself was illegal.

The CJEU however, with reference to relevant case-law (please refer to the text of the judgment for same), held that the case was inadmissible, for it is purely internal: at 28-29: ‘it is not sufficient for the referring court to state that it is not inconceivable that nationals established in other Member States were or are interested in making use of Union provisions on fundamental freedoms to carry out activities in the territory of the Member State which enacted the national legislation in question and, consequently, that that legislation, applicable without distinction to nationals and to nationals of other Member States, is capable of producing effects which are not confined to that Member State.’ ‘The request for a preliminary ruling must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, such as complaints or applications brought by operators situated in other Member States or involving nationals of those Member States, on the basis of which the required connecting link may be positively established. More particularly, the referring court may not merely submit to the Court evidence suggesting that such a link cannot be ruled out or which, considered in the abstract, could constitute evidence to that effect, and must, on the contrary, provide objective and consistent evidence enabling the Court to ascertain whether such a link exists.’

Such evidence of course in practice is easily engineered. A similar case therefore is bound to return to Luxembourg at some point soon.

Geert.

The Centre for the Study of European Contract Law of the University of Amsterdam is offering a PhD position in the field of private law (including private international law). Interested parties can formulate their own research proposal which has to be submitted before 1 October 2018. More information can be found here.

Previous posts on this blog have described the emerging international commercial and business courts in various Member States. While the primary aim is and should be improving the dispute resolution system for businesses, the establishment of these courts also points to the increase of competitive activities by certain Member States that try to attract international commercial litigation. Triggered by the need to facilitate business, prospects of financial gain, and more recently also by the supposed vacuum that Brexit will create, France, Germany, the Netherlands, and Belgium in particular have been busy establishing outlets for international commercial litigants. One of the previous posts by the present authors dedicated to these developments asked who will be next to enter the competition game started by these countries. In another post, Giesela Rühl suggested that the EU could be the next.

A recently published study of the European Parliament’s Committee on Legal Affairs (JURI Committee) on Building Competence in Commercial Law in the Member States, authored by Giesela Rühl, focuses on the setting up of commercial courts in the Member States and at the EU level with the purpose of enhancing the enforcement of commercial contracts and keeping up with the judicial competition in and outside Europe. This interesting study draws the complex environment in which cross-border commercial contracts operate in Europe. From existing surveys it is clear that the laws and the courts of England and Switzerland are selected more often than those of other (Member) States. While the popularity of these jurisdictions is not problematic as such, there may be a mismatch between the parties’ preferences and their best available option. In other words, while parties have clear ideas on what court they should choose, in reality they are not able to make this choice due to practical difficulties, including a lack of information or the costs involved. The study recommends reforming the Rome I and Rome II Regulations to improve parties’ freedom to choose the applicable law. In addition, a European expedited procedure for cross-border commercial cases can be introduced, which would simplify and unify the settlement of international commercial disputes. The next step, would be to introduce specialised courts or chambers for cross-border commercial cases in each Member State. In addition to these, the study recommends the setting up of a European Commercial Court equipped with experienced judges from different Member States, offering neutrality and expertise in cross-border commercial cases.

This study takes on a difficult and complicated issue with important legal, economic, and political implications. From a pure legal perspective, expanding – the  already very broad – party autonomy to choose the law and forum (e.g. including choosing a non-state law and the possibility to choose foreign law in purely domestic disputes) seems viable but will likely not contribute significantly to business needs. The economic and political implications are challenging, as the example of the Netherlands and Germany show. In the Netherlands, the proposal for the Netherlands Commercial Court (NCC) is still pending in the Senate, despite our optimistic expectations (see our previous post) after the adoption by the House of Representatives in March of this year. The most important issue is the relatively high court fee and the fear for a two-tiered justice system. The expected impact of Brexit and the gains this may bring for the other EU Member States should perhaps also be tempered, considering the findings in empirical research mentioned in the present study, on why the English court is often chosen. A recently published book, Civil Justice System Competition in the EU, authored by Erlis Themeli,  concludes on the basis of a theoretical analysis and a survey conducted for that research that indeed lawyers base their choice of court not always on the quality of the court as such, but also on habits and trade usage. England’s dominant position derives not so much from its presence in the EU, but from other sources.

The idea of a European Commercial Court that has been put forward in recent years and is promoted by the present study, is interesting and could contribute to bundling expertise on commercial law and commercial dispute resolution. However, it is questionable whether there is a political interest from the Member States considering other pressing issues in the EU, the investments made by some Member States in setting up their own international commercial courts, and the interest in maintaining local expertise and keeping interesting cases within the local court system. Considering the dominance of arbitration, the existing well-functioning courts in business centres in Europe and elsewhere and the establishment of the new international commercial courts, one may also wonder whether a further multiplicity of courts and the concentration of disputes at the EU level is what businesses want.

That this topic has a lot of attention from practitioners, businesses, and academics was evident at a very well attended seminar (Rotterdam, 10 July 2018) dedicated to the emerging international commercial courts in Europe, organized by Erasmus University Rotterdam, the MPI Luxembourg, and Utrecht University. For those interested, in 2019, the papers presented at this seminar and additional selected papers will be published in an issue of the Erasmus Law Review, while also a book that takes a European and global approach to the emerging international business courts in being prepared (more info here). At the European Law Institute’s Annual Conference (Riga, 5-7 September 2018) an interesting meeting with vivid discussions of the Special Interest Group on Dispute Resolution, led by Thomas Pfeiffer, was dedicated to this topic. An upcoming conference “Exploring Pathways to Civil Justice in Europe” (Rotterdam, 19-20 November 2018) offers yet another opportunity to discuss court specialisation and international business courts, along with other topics of dispute resolution.

The UNCITRAL has published the Report from the 51st session. Annexes to the report contain the proposed United Nations convention on international settlement agreements resulting from mediation, the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, and the UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments.

Wahl AG’s Opinion in C-378/17 Workplace Relations Commission provides a great tutorial on the principles of primacy, and Member States’ duty to ensure equivalence and effectiveness in the implementation of EU law.

At issue is the compatibility with the principle of the primacy of EU law of a rule dividing jurisdiction in specific cases between the High Court and a statutory body, the Workplace Relations Commission (‘the WRC’). The latter has no jurisdiction and has to yield to the High Court, when the case requires disapplication of a provision of national (primary or secondary) legislation.

Wahl advises that the rule does not infringe the primacy of EU law, and in doing so runs us through the principles of primacy and its implications on national procedural autonomy.

Note the Advocate-General’s remark (at 87) that ‘It is increasingly common that the resolution of conflicts arising from day-to-day life, such as consumer disputes and conflicts in the workplace, are ‘out-sourced’ from courts to specialised bodies with (limited) powers to mediate and/or adjudicate expediently such disputes (FN omitted). It is equally commonplace that, as is the case of adjudication officers at the WRC, persons resolving conflicts in such bodies do not necessarily have a legal qualification. Arguably, such bodies are better placed than courts to provide low-cost, speedy and effective solutions to conflicts of that kind.‘

At 89: ‘jurisdiction in a specific field of EU law may be divided between different bodies, provided that the rights in question are adequately protected’: an important precondition of course is that the national system guarantees that cases where national or EU legislation needs to be disapplied where they would clash with citisens’ rights, are properly adjudicated by the courts who are empowered to set aside the law: and not just swept under the carpet under the guise of the assessment being ‘factual’ only.

Geert.

Reference to the similar law in New York was made in Dankor: see https://wp.me/p289fR-1l2.
This judgment puts pressure on the use of ordre public to enforce ‘local courts only’ rules, although prima facie at least the finding is limited to the FAA hence arbitration proceedings.

Constructlaw.com

Sachse Constr. & Dev. Corp. v. Affirmed Drywall, Corp., 2018 Fla App. Lexis 9998 (July 18, 2018)

Sachse Construction, a Michigan-based general contractor, entered into a subcontract (the “Subcontract”) with Affirmed Drywall Corp. (“Affirmed”), a Florida drywall subcontractor, to perform work on a property in Florida.  The Subcontract provided that all disputes be resolved by mediation and/or arbitration in Southfield, Michigan, or within 20 miles thereof, pursuant to the Construction Industry Rules of the American Arbitration Association and in accordance with Michigan laws.  However, under Section 47.025 of the Florida Statutes, a venue provision in a contract involving a Florida-based contractor or subcontractor, etc., for the improvement of real property located in Florida is considered void as a matter of public policy if it requires that legal action be brought outside of Florida.

Affirmed filed an action in Florida state court alleging claims for breach of contract against Sachse and to…

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This post can be classified under ‘better late than never’. Thank you Irina Timp for flagging in December, Inversiones v Cancun at the Dutch Hoge Raad. The case concerned alleged dilution of one company’s (Inversiones) shareholding in another as a result of increased emission of shares orchestrated by another shareholder (Cancun). Note that exclusive jurisdiction under Article 24(2), justifiably, was not suggested.

The Hoge Raad focused on the discussion concerning (now) Article 8(3)’s provision for counterclaims: courts even if not the court of domicile of the defendant have jurisdiction ‘on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;’ C-185/15 Kostanjevec is the main reference. Of particular note was the language issue: the Dutch version of the text employs ‘rechtsfeit’: suggestion a narrower interpretation than the English version (‘facts’) just quoted. The Hoge Raad justifiably followed the linguistic implications of the majority of language versions (e.g “facts”, “Sachverhalt”. “fait”) and held in favour of jurisdiction on the basis of a counterclaim.

The result of that finding is that it did not further entertain the consequences of Universal Music on the location of the locus damni for diluted shareholdings: what other factors are needed to have the shareholder’s corporate domicile qualify for same?

Geert.

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

S.H. Elsing/A. Shchavelev: The new DIS Arbitration Rules 2018

On 1/3/2018, the new arbitration rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) came into force. The revision process took almost two years and resulted in a comprehensive overhaul of the former arbitration rules which date back to the year 1998. The new rules combine well-tried elements of the former regime with much-anticipated improvements which will help the DIS and the arbitration practice in Germany in general to keep up with the changes and developments in domestic and international arbitration. Notably, the DIS now has two authentic versions of its arbitration rules: a German and an English one. The most relevant amendments include (1) several provisions aimed at enhancing the efficiency of the proceedings and promotion of early settlements; (2) the foundation of a new body, the Arbitration Council, which will now decide, inter alia, on the challenge and removal of arbitrators, the arbitrators’ fees and the amount in dispute; and (3) new comprehensive provisions on consolidation, multi-party and multi-contract proceedings and the joinder of additional parties. In addition, the DIS will now be more closely involved in the administration of the arbitration after the constitution of the arbitral tribunal. With these amendments, the new arbitration rules will arguably become more accessible and thus more appealing to foreign users and will help the DIS to expand its position beyond the German speaking countries towards a truly international arbitral institution.

E. Jayme: Draft of a German statute against the validity of polygamous marriages celebrated abroad – critical remarks

The draft of a German statute against polygamous marriages does not take into account the bilateral treaty on social security between Germany and the Kingdom of Morocco, which presupposes the validity of polygamous marriages: both widows share the social security benefits. In view of current court practice there is no need for a German statute, which in situations in which both spouses have their habitual residence in Germany, provides for court action in order to declare the second marriage null and void. The general clause of public policy (art. 6 of the Introductory Act to the German Civil Code [EGBGB]) seems to be sufficient for dealing with polygamous marriages.

A. Wolf: Jurisdiction of German Courts for cartelists’ recovery claims due to a joint and several liability

In its decision, the Higher Regional Court Hamm determined under § 36 Sec. 1 No. 3 ZPO on the so-called „Schienenkartell“ that the German District Court Dortmund has international jurisdiction for recovery claims between jointly and severally liable cartelists from Germany, Austria and the Czech Republic. Therefor it applied Art. 8 No. 1 Brussels I recast together with German rules on subject matter jurisdiction and interpreted § 32 ZPO following the Court of Justice in its CDC-judgment with regard to Art. 7 No. 2 Brussels I recast.

W. Wurmnest/M. Gömann: Shaping the conflict of law rules on unfair competition and trademark infringements: The “Buddy-Bots” decision of the German Federal Supreme Court

On 12 January 2017 the German Federal Supreme Court (Bundesgerichtshof) rendered its judgment on the unlawful distribution of supporting gaming software – so-called “Buddy-Bots” – for the multiplayer online role-playing game “World of Warcraft”. This article takes a closer look at the application of Art. 6 and Art. 8 Rome II Regulation by the Supreme Court. The authors argue that the principle of uniform interpretation could be threatened by the Court’s tendency to align its reading of European conflict of law rules with the interpretation of the “old” German law now superseded by the Rome II Regulation, especially with regard to the market effects principle under Art. 6(1) Rome II Regulation.

O.L. Knöfel: Delegated Enforcement vs. Direct Enforcement under the EU Maintenance Regulation No. 4/2009 – The Role of Central Authorities

The article reviews a decision of the European Court of Justice (Case C-283/16), dealing with questions of international judicial assistance arising in enforcement procedures under the European Maintenance Regulation No. 4/2009. The Court held that a maintenance creditor is entitled to seek cross-border enforcement directly in a court, without having to proceed through the Central Authorities of the Member States involved. National regulations such as the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, demanding applications to be submitted to the Central Authority of the requested Member State, must be interpreted in the light of the European Maintenance Regulation. The author analyses the relevant issues of cross-border recovery of maintenance and explores the decision’s background in European Union law.

R.A. Schütze: Cautio iudicatum solvi in case of uncertainty of seat of companies

110 German Code of Civil Procedure requires plaintiffs with an ordinary residence or seat (if a company or other legal entity) outside the European Union or the European Economic Area (EWR) to provide – on request of the defendant – a cautio iudicatum solvi. In two judgments – commented below – the Bundesgerichtshof and the Oberlandesgericht Düsseldorf have decided on the ratio of security for costs under German law and on important issues of proof in case that the seat of the plaintiff (inside or outside EU or EWR) is contested. The Oberlandesgericht Düsseldorf qualifies the right of the defendant to demand security of cost from the plaintiff as an exceptio for which the burden of proof lies with the defendant. But as the plaintiff is more familiar with its organization and activities it has a secondary burden of asserting relevant facts (sekundäre Vortragslast). However, this does not change the burden of proof.

L. Kopcznyski: Confusion about the reciprocity requirement

According to domestic German law, the recognition and enforcement of foreign judgments is dependent on the requirement of reciprocity (sec. 328 (1) no. 5 of the German Code of Civil Procedure). It is, however, not an easy task to assess whether a foreign state would recognise a German judgment in similar circumstances. Courts regularly struggle to apply correctly the specific prerequisites which have to be met in this regard. A recent judgment of the Regional Court in Wiesbaden demonstrates that. In its decision, the court refused to enforce a Russian judgment because it set the bar for reciprocity far too high.

M. Gebauer: Compulsory recognition procedure according to Section 107 FamFG in order to determine the validity of a divorce registered at a foreign consulate located in Germany

German law requires that foreign decisions (originating beyond the EU) affecting the status of a marriage, e.g. divorce judgements, are subject to a compulsory recognition procedure (Anerkennungsverfahren), according to paragraph 107 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). This requires a free-standing application by an interested party to the relevant state authority which is responsible for determining the application. The decision, rendered by the Court of Appeal (Oberlandesgericht) in Nuremberg, reinforced long-standing judicial reasoning, albeit made with reference to a previous similarly worded statute, that the recognition procedure is also required where a foreign diplomatic mission situated in Germany is responsible for an official act potentially affecting the parties’ marriage in Germany. The Court of Appeal in Nuremberg correctly reasoned by way of analogy that while the paragraph does not specifically deal with circumstances where a divorce is registered by a foreign diplomatic mission situated in Germany, the legislator had not intended for the previous judicial approach to be reviewed. Thus, courts should continue to treat divorces in which a foreign diplomatic mission situated in Germany has been involved in the same way as judgements issued in foreign countries. This meant that the local court had no jurisdiction to determine the validity of a divorce registered at the Thai consulate located in Frankfurt. An application to the relevant state authority in terms of the compulsory recognition procedure must first be disposed of before matters can be considered by the local court

K. Siehr: „Wrongful Retention“ of a Child According to Article 3 of the Hague Abduction Convention of 1980

A couple habitually resident in South Africa had two children living with them. The couple separated but had joint custody for the children. The mother travelled to Senegal with the children but did not return them until January 3, 2016. In August 2016 mother and children took refuge in Germany. On January 2, 2017 the father in South Africa asked German authorities to return the wrongfully retained children to South Africa. The court of first instance (Amtsgericht Pankow-Weißensee) refused to do so because the children were not wrongfully retained because Senegal is no State Party of the Hague Abduction Convention of 1980. The Court of Appeal in Berlin (Kammergericht) reversed the decision of first instance and correctly interpreted Art. 3 Hague Abduction Convention as not requiring abduction wrongfully committed in a State Party. According to Art. 4 Hague Abduction Convention, the abducted or retained child must have had his/her habitual residence in a State Party immediately before the removal or retention. Art. 3 and 4 Hague Abduction Convention are discussed and analyzed, also with respect to the more restricted wording of Art. 2 No. 11 Hague Custody Convention of 1996. Finally, it is stressed that it does not matter whether the wrongfully abducted child spent some time in States not being State Parties to the Hague Abduction Convention as soon as the one year time limit for the application of return (Art. 12 sec. 1 Hague Abduction Convention) has been met.

A. Piekenbrock: Jurisdiction for damage claims regarding forum shopping in European Insolvency Law: commentaries on Court of Cassation, Social Chamber, 10.1.2017

The paper deals with a decision delivered by the French Court of Cassation regarding damage claims within the context of the initiation of English administration proceedings for all EU companies of the Canadian Nortel Networks Group including the French Nortel Networks SA in January 2009. The Social Chamber has come to the conclusion that English Courts have exclusive jurisdiction regarding damage claims of a former employee of the French company based on alleged falsehood by the opening of the main insolvency proceedings in England. The decision emphasises correctly the binding force of the English opening decision. Yet, the reasoning seems erroneous insofar as the claim is not directed against the insolvent company itself or its liquidator, but rather against another company of the same group (the British Nortel Networks UK Limited) and the insolvency practitioners involved (Ernst & Young). At least the Court of Cassation as a court of last resort should have referred the case to the C.J.E.U. pursuant to Art. 267(3) TFEU.

K. Lilleholt: Norwegian Supreme Court: The Law of the Assignor’s Home Country is Applicable to Third-Party Effects of Assignments of Claims

In its judgment of 28/6/2017, the Norwegian Supreme Court held that the effects in relation to the assignor’s creditors of an assignment of claims by way of security was governed by the law of the assignor’s home country under Norwegian choice of law rules. This issue has not been dealt with in Norwegian legislation, and earlier case law is sparse and rather unclear. Application of the law of the assignor’s home country has been recommended by legal scholars, but these views are not unanimously held. The Supreme Court’s decision is in line with the later proposal for an EU regulation on the law applicable to the third-party effects of assignments of claims. The proposed regulation will not be binding on Norway, as it will not form part of the EEA agreement. This is also the case for other EU instruments regarding private international law, like the Rome I and Rome II Regulations and the Insolvency Regulation. In several recent judgments, however, the Supreme Court has stated that EU law should provide guidance where no firm solution can be found in Norwegian choice of law rules (IV.). The case also raised a jurisdiction issue. The Supreme Court found that the insolvency exception in the Lugano Convention Art. 1(2)(b) applied and that Norwegian courts had jurisdiction because the insolvency proceedings were opened in Norway. This article will record the facts of the case (II.) and present the jurisdiction issue (III.) before the Supreme Court’s discussion of the choice of law rule is presented and commented upon (IV.).

K. Thorn/M. Nickel: The Protection of Structurally Weaker Parties in Arbitral Proceedings

In its judgment, the Austrian Supreme Court of Justice (OGH) ruled on the legal validity of an arbitration agreement between an employer based in New York and a commercial agent based in Vienna acquiring contracts in the sea freight business. The court held that the arbitration agreement was invalid and violated public policy due to an obvious infringement of overriding mandatory provisions during the pending arbitral proceedings in New York. The authors support the outcome of the decision but criticize the OGH’s reasoning that failed to address key elements of the case. In the light of the above, the article discusses whether the commercial agent’s compensation claim relied on by the court constitutes an overriding mandatory provision although the EU Commercial Agents Directive does not cover the sea freight. Further, the article identifies the legal basis for a public policy review of arbitration agreements and elaborates on the prerequisites for a violation of public policy. In this regard, the authors argue that arbitration agreements can only be invalidated due to a violation of substantive public policy if a prognosis shows that it is overwhelmingly likely and close to certain that the arbitral tribunal will neglect applicable overriding mandatory provisions.

Roxana Banu of Western University has published Nineteenth-Century Perspectives on Private International Law, a new book in the Oxford University Press series on the history and theory of international law.  Information from the publisher can be found here.  From the website:

Private International Law is often criticized for failing to curb private power in the transnational realm. The field appears disinterested or powerless in addressing global economic and social inequality. Scholars have frequently blamed this failure on the separation between private and public international law at the end of the nineteenth century and on private international law’s increasing alignment with private law.

Through a contextual historical analysis, Roxana Banu questions these premises. By reviewing a broad range of scholarship from six jurisdictions (the United States, France, Germany, the United Kingdom, Italy, and the Netherlands) she shows that far from injecting an impetus for social justice, the alignment between private and public international law introduced much of private international law’s formalism and neutrality. She also uncovers various nineteenth century private law theories that portrayed a social, relationally constituted image of the transnational agent, thus contesting both individualistic and state-centric premises for regulating cross-border inter-personal relations.

Overall, this study argues that the inherited shortcomings of contemporary private international law stem more from the incorporation of nineteenth century theories of sovereignty and state rights than from theoretical premises of private law. In turn, by reconsidering the relational premises of the nineteenth century private law perspectives discussed in this book, Banu contends that private international law could take centre stage in efforts to increase social and economic equality by fostering individual agency and social responsibility in the transnational realm.

The Journal of Private International Law is inviting abstracts for its 8th conference to be held at the Ludwig-Maximilians-University Munich from 12-14 September 2019. Abstracts of up to 500 words from scholars, at any stage of their career, should be sent to jprivintl2019@lmu.de by Monday 7 January 2019.

The Journal has held very successful conferences in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio de Janeiro (2017). Its biennial conferences provide a unique forum for scholars from all over the world to meet and advance the discipline of private international law.

Speakers will not be required to pay a registration fee but must cover their own travel and accommodation costs. It is expected that speakers will, before the end of 2019, submit the final version of their papers to be considered for publication in the Journal in the first instance.

Further details can be found in volume 14(2) of the Journal or on the University’s website.

Thanks go to Michael Douglas for alerting me to the call for papers.

Applications for the 2019 Nygh Hague Conference Internship Award close at the end of this month. 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.

The internship aims to foster Australian involvement in the work of the Hague Conference and is established in memory 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.

The successful candidate is expected to start the internship in The Hague on 14 January 2019. Further details and information on how to apply is available here.