I have just received this Call for papers related to the International Seminar “50 Years of EU Private International Law in Therapy”, organized by the Spanish Association of Professors of International Law and International Relations (AEPDIRI) and the University of Valencia (Spain). It will be held in Valencia on January 25th, 2018.
The purpose of the seminar is to critically examine the five decades of codification of private international law in the EU, assessing its achievements and shortcomings, as well as its interaction with existing national and conventional responses, and with the practice of legal practitioners. In short, the seminar seeks to assess the regulatory and policy outcomes and their impact on the activity of EU operators and citizens. It covers the three classic fields of international jurisdiction, applicable law, and circulation of judgments and public documents in the European Union, without focusing on any specific act adopted by the EU. Future prospects for the process will also be addressed, considering the regulatory proposals on which the European Commission is working.
All those interested in presenting a paper should send their proposal by November 30th, 2017, to seminarioactualidad.dipr2018@aepdiri.org. For guidance purposes, the following topics are suggested (non-exhaustively):
1. Codification techniques in EU private international law.- The need for Regulations; advantages and disadvantages of sector-specific codification; external competences of the EU; interaction with the Hague Conference (HCCH) and other codification forums.
2. Scope and limitations of mutual recognition.- Enforcement of judgments; effectiveness of civil status documents; restrictions on recognition.
3. Interaction of EU private international law with the Spanish model of private international law.- Close and open-ended Regulations; scope of autonomous private international law; intra-EU and international private relations.
4. Impact of private international law on legal practitioners.- Review of the concept of authority; contentious and voluntary jurisdiction; out-of-court procedures; scope of notarial activities in the EU; implementation of EU private international law by public registry officials.
5. The “interregional” dimension of the EU private international law model.- Reference to multi-legal systems and their internal dimension; review of the Spanish model of interregional law.
Applications must be accompanied by the following documents in Word format:
-1. A document with the following information only: title of the proposal; name of the candidate; home university; academic position; indication of whether the candidate is member of AEPDIRI.
-2. Summary of the proposal (without indication of the name of the candidate, but only the title, contents and 3-5 keywords), of 1000-1500 words.
-3. Brief CV (max. 5 pages).
A book will be published bringing together all the papers and communications submitted –or accepted without oral presentation– for this Seminar.
Thank you Angharad Parry for flagging [2017] EWCA Civ 1609 Koza v Akcil – Angharad has excellent factual background. The case concerns the application of Article 24(2) of the Brussels I Recast Regulation, which assigns exclusive jurisdiction to the Courts of the Member State of the seat in matters relating to the life and death of companies and of the validity of decisions made by their organs:
in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;
Referring particularly to C-144/10 BVG and to C-372/07 Hassett, the Court of Appeal at 28 correctly suggests Article 24’s exclusive jurisdictional rules need to be interpreted with their limited purpose in mind: ‘when article 24(2) speaks of proceedings having an “object” it is not referring to the purpose of the proceedings. Rather that phrase is to be interpreted as “proceedings which are principally concerned with” one of the types of subject matter within the article.’ At 37: ‘The task for the court in each case is therefore to determine whether the proceedings relate principally to the validity of the decisions of an organ of the company. A mere link to a decision of the company, or an issue raised which is ancillary to the heart of a contractual or some other dispute, is insufficient to bring the proceedings within the exclusive jurisdiction.’
Floyd LJ at 46 summarises the direction for courts: ‘I do not take from the English or European authorities which were cited to us any suggestion that one is required in all cases to disentangle issues which are interlinked in this way and apply Article 24(2) to each issue separately. On the contrary, faced with such proceedings, the court is required to form an overall evaluative judgment as to what the proceedings are principally concerned with. The position is obviously different from a case where two quite independent claims are made in the same proceedings. Exclusive jurisdiction in relation to each claim would, in those circumstances, have to be determined separately.’ In the case at hand the case was found overall and fundamentally to concern one and the same issue of the validity of decisions of the organs of the company
Consequently the issue is one of looking beyond the particulars of form and into the true nature of the proceedings. Not a decision always made with ease.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading
In a recent ruling, the Supreme Court of Greece dismissed a cassation against an appellate decision, confirming the findings of the first instance ruling, which issued a default judgment against an Italian company, following the return of a non-service certificate by an Italian bailiff.
The interesting part of the judgment is related to the application of Art. 19.2 Service Regulation.
The questions raised are twofold:
First, the extent of efforts to be made by the Receiving Authority, before deciding to return the document to the Transmitting Authority.
Second, the presumption of the Greek Supreme Court that failure of the defendant to notify his change of abode, allows a court to continue with the proceedings, even when the change occurred before lis pendens.
More information can be found here.
The European Parliamentary Research Service (EPRS) has published the results on its Study “Cross-border restitution claims of looted works of art and cultural goods”. The objective of the Study is described as follows:
“Works of art and cultural goods looted in armed conflicts or wars usually travel across several borders when they are sold. The cross-border character of looted art creates legal challenges for restitution claims as they often concern various national jurisdictions, with differing rules, as well as fragmented and insufficiently defined legal requirements in international and European legal instruments. Against this background, this European Added Value Assessment identifies weaknesses in the existing EU legal system for restitution claims of works of art and cultural goods looted in armed conflicts and wars. Moreover, it outlines potential legislative measures that could be taken at the EU level and that could generate European added value through simplification and harmonisation of the legal system in this area.”
Against this background, the Study deals, inter alia, with
(i) shortcomings of Article 7 no. 4 Brussels Ibis Regulation;
(ii) possible improvements of choice of law in relation to cultural property such as the question of a “lex originis” as a potential variation to the lex rei sitae under certain circumstances;
(iii) potential amendments on the level of substantive law such as e.g. the accession of the remaining Member States to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Goods or, alternatively, autonomous means of incorporating elements of this Convention or relevant provisions of the DCFR by extending Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State;
(iv) the special issue of Holocaust related claims for restitution, including options for developing an adequate sales law;
(v) accompanying measures on EU level such as increasing data exchange of results from provenance research or setting up a EU Agency for the Protection of Cultural Property.
The legal basis for this Study is the following: In accordance with Article 225 of the Treaty on the Functioning of the European Union (TFEU), the European Parliament has a right to ask the European Commission to take legislative action in a particular area. Such requests are based on a legislative initiative report by the parliamentary committee responsible. On 16 February 2016, the Conference of Presidents of the European Parliament authorised its Committee on Legal Affairs (JURI) to draft a legislative initiative report on cross-border restitution claims of looted works of art and cultural goods.
All legislative initiative reports must automatically be accompanied by a detailed European Added Value Assessment (EAVA). Accordingly, the JURI Committee asked the Directorate-General for Parliamentary Research Services (EPRS) to prepare an EAVA to support the legislative initiative report on the cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars. The Rapporteur is Pavel Svoboda (EPP, Czech Republic), Chairman of the JURI Committee. The author of the Study is Dr Christian Salm, Policy Analyst, European Added Value Unit. The Study is based on an externally commissioned scientific study (“Annex I”) by the author of these lines. Both texts are available here.
Saugmandsgaard ØE’s would seem fast to become the CJEU’s Advocate General of choice in matters of social dumping – witness the recent Ryanair litigation. In C-359/16 Altun, at issue is the binding nature of the E101 certificate. This certifies that a worker moving within the EU is covered by the social security scheme of the Member State (‘MS’) to which the issuing institution belongs. Standing case-law is that the host MS is not entitled to scrutinise the validity of an E101 certificate in the light of the background against which it was issued: this is the result of the mutual trust built into the relevant secondary law.
In current case the Belgian Supreme Court queries whether that case-law applies where a court of the host MS finds that an E101 certificate was obtained or invoked fraudulently.
The AG summarises the relevant investigation at 10: ‘The Sociale Inspectie (Social Inspectorate, Belgium) conducted an investigation into the employment of the staff at Absa NV, an undertaking governed by Belgian law active in the construction sector in Belgium. That investigation established that from 2008 Absa had practically no staff in its employ and outsourced all manual labour to Bulgarian undertakings under subcontracting agreements. Those Bulgarian undertakings had no activities to speak of in Bulgaria and posted workers to work under subcontracting agreements in Belgium for Absa, partly with the involvement and cooperation of other Belgian companies. The employment of the workers concerned was not notified to the Belgian institution responsible for the collection of social security contributions, as they held E 101 certificates issued by the competent Bulgarian authority, certifying that they were covered by the Bulgarian social security system.’
What follows is essentially the Belgian authorities alleging that their Bulgarian counterparts, having been asked to withdraw the certificates, only answered halfheartedly if at all. The Court of Appeal found that the certificates had been obtained by fraud.
Saugmandsgaard ØE emphasises that the EU social security rules at issue effectively establish a private international law system for social security. They assign authorities competent to issue certificates; they designate the social security law applicable. The principle of mutual trust /sincere co-operation, laid down in Article 4(3) TEU, ensures that authorities in the host MS respect the certificates issued in the home MS. However, the AG then effectively flips the coin: sincere co-operation requires sincerity on both sides (my words, not the AG’s).
The AG recalls the Halifax case-law of the CJEU: EU law cannot be relied on for abusive or fraudulent ends and that national courts may, case by case, take account — on the basis of objective evidence — of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of EU law, in the light of the objectives pursued by the provisions of EU law concerned.
The AG does not just refer to case-law on the very secondary law at issue. He opens up the debate to the wider implications of social dumping and regulatory competition:
At 46: ‘socio-economic considerations likewise support priority being given to the combating of fraud in such a situation. In the context of the system of conflict of laws established by … Regulation No 1408/71, fraud linked to the issue of E 101 certificates represents a threat to the coherence of the Member States’ social security schemes. In that regard, I consider that Member States have a legitimate interest in taking appropriate steps to protect their financial interests and to ensure the financial balance of their social security systems. In addition, the use of E 101 certificates obtained or invoked fraudulently is, in my view, a form of unfair competition and calls into question the equality of working conditions on national labour markets.‘ (footnotes omitted)
At 49, the AG suggest a finding of fraud requires the satisfaction of an objective criterion and of a subjective criterion. The objective criterion consists in the fact that the conditions for obtaining the advantage sought are not in fact satisfied. At 51, the subjective factor: it is to be established that the persons concerned had the intention of concealing the fact that the conditions for the issue of the E 101 certificate were not in fact met, in order to obtain the advantage stemming from that certificate. Proof of the existence of such fraudulent intent may consist in an intentional act, in particular an inaccurate presentation of the true situation of the posted worker or of the undertaking posting that worker, or in an intentional omission, such as the non-disclosure of relevant information.
(In the case at issue, the facts point to non-fulfillment of one of the substantive criteria for the E101 to be issued, namely that only an undertaking which habitually carries on significant activities in the Member State in which it is established may be issued an E101 of that State).
The fraud must be established in the context of adversarial proceedings with legal guarantees for the persons concerned and in compliance with their fundamental rights, in particular the right to an effective remedy enshrined (at 52).
If the AG’s Opinion is followed, and taking into account Commissioner Thyssen’s recent progress on the reform of the relevant laws, the social dumping window is closing yet a bit more.
Geert.
I was asked yesterday (interview in Dutch) for my thoughts on the Belgian Government’s plans for a Brussels International Business Court. Here goes, in bullet-points format, a slightly extended and more technical version of those preliminary thoughts:
Much to chew on. My analysis is based on a draft Bill which a little bird sent me. This is probably not the final say on the BIBC. (On an aside: @BIBC is already taken. I can think of one or two Twitter Handles which the BE government may want to snap up before someone else does).
Geert.
Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.
Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law, followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.
First personal impressions presented by Edina Márton, LLM, PhD (Saarbruecken)
For jurisdictional purposes, the localisation of cross-border violations of personality rights under European instruments, such as Regulation (EU) No 1215/2012 (Brussels Ia), has attracted the attention of a considerable number of scholars and often led to different legal solutions in the national judicial practice. At EU level, besides Shevill (C-68/93; ECLI:EU:C:1995:61) as well as eDate and Martinez (C-509/09 and C-161/20; ECLI:EU:C:2011:685), since 17 October 2017, a third judgment in case Bolagsupplysningen (C-194/16; ECLI:EU:C:2017:766) has given further clarification in this area. In the recently delivered judgment, the ECJ specified one of the two limbs of the connecting factor “where the harmful event occurred or may occur” under Article 7(2) of Brussels Ia, namely the place of the alleged damage.
Two key factual elements of Bolagsupplysningen differentiate this case from Shevill, as well as eDate and Martinez. First, one of the alleged victims is a legal person established under Estonian law and has business activities in Sweden (paras 9 and 10). Secondly, the case concerned “the rectification of allegedly incorrect information published on … [the] website [of the Swedish defendant], the deletion of related comments on a discussion forum on that website and compensation for [the entire] harm allegedly suffered” (para 2; emphases omitted; words in square brackets added).
Regarding the determination of the jurisdictionally relevant place of damage, the ECJ basically ruled that a legal person asserting that its personality rights have been violated through the Internet may bring an action for rectification and removal of the allegedly infringing information, and compensation for all the damage occurred before the courts of the Member State in which its centre of interests is situated. In addition, it also stated that the courts of each Member State in which the contested online information is or was accessible are not competent to hear actions brought for rectification and removal of that information.
In the present author’s view, one of the most significant aspects of the judgment is that the ECJ treated the pecuniary and non-pecuniary damage equally for determining the jurisdictionally relevant place of damage (para 36). In addition, the ECJ applied the “centre of interests” connecting factor introduced in eDate and Martinez to this case and identified it vis-à-vis a legal person pursuing business activities in a Member State other than in the Member State in which its registered office is located (paras 40 ff.). The decisive element for this identification seems to be the pursuit of business activities. As a side note, it is worth questioning how to define this approach for entities that do not carry out such activities (cf. the centre of interests of a natural person generally coincides with his/her habitual residence in eDate and Martinez, para 49). Finally, and, in the opinion of the present author, most importantly, regarding claims for rectification and removal of allegedly infringing online information, the ECJ disregarded the so-called mosaic principle (paras 45 ff.).
On 1 December 2017, the University of Milan will host the final conference of the Project ‘Planning the Future of Cross-Border Families: A Path Through Coordination’ (JUST/2014/JCOO/AG/CIVI/7729, co-funded by the European Commission under the Civil Justice Programme).
The Project aims at analyzing the practice of several Member States concerning the application of EU Regulations No 2201/2003, No 1259/2010, No 4/2009, and No 650/2012, as well as the 2007 Hague Maintenance Protocol, and the 2007 Hague Recovery Convention. It has been carried out by the University of Milan together with the MPI Luxembourg, the Universities of Heidelberg, Osijek, Valencia and Verona, and in partnership with several family lawyers associations – the Italian AIAF, the Spanish AEAFA-, the Italian Scuola Superiore della Magistratura, and the Croatian Pravosudna akademija.
The event is free of charge and it will be held in English and Italian with simultaneous interpretation. Registration is nevertheless compulsory (click here, also to access the full program ).
Facebook page: www.facebook.com/eufams
The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabels Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:
Marc-Philippe Weller, Vom Staat zum Menschen: Die Methodentrias des Internationalen Privatrechts unserer Zeit (Referral, Recognition and Consideration: New Methodological Approaches in Private International Law):
This article draws attention to new methodological challenges posed by an increasingly globalized world: In modern European societies, individual interests are becoming more and more important, demanding private international law to no longer only determine the legal order closest connected to the respective case, but to consider individual interests and substantive arguments as well. To cope with these current developments, private international law must find a balance between individuals’ and states’ interests, while ensuring international consistency at the same time. This article aims at showing that these challenges can, however, be met if the existing system of referral was complemented by methods of recognition and consideration of local and moral data.
Dorothee Einsele, Kapitalmarktrecht und Internationales Privatrecht (Capital Market Law and Private International Law)
Claims for damages in the case of capital market offences not only grant compensation to market participants but also play an important role in the enforcement of market regulations. Hence, the question of which law is applicable to capital market offences becomes relevant. In this regard, one must make the following differentiation: If a (pre-)contractual relationship between the injuring party and the damaged person already exists at the time of the infringement, claims for damages are covered by the Rome I Regulation. Otherwise, the applicable law is determined by the Rome II Regulation. This means that the place of injury, which usually coincides with the place of habitual residence of the injured party, is, in principle, the decisive connecting factor (Art. 4(1)). However, this connecting factor, by focusing on the individual injured party, does not correspond with the character of capital market law as market organisation law. With regard to competition law, another set of rules regulating the organisation of markets, Art. 6 of the Rome II Regulation provides for the application of the law of the affected market. Since Recital 23 of the Rome II Regulation qualifies Art. 6 as a mere clarification of the general rule of Art. 4(1), the place of injury may be clarified accordingly for capital market offences and be interpreted as the law of the affected market. Capital market rules of conduct, however, are mostly overriding mandatory rules. Therefore, they are not covered by the general conflict-of-law rule for torts but are governed by special provisions, especially Art. 17 of the Rome II Regulation. The rationale of Art. 17 is to protect the legitimate expectations of the injuring party that the rules of conduct he had to comply with at the time the harmful act was committed will also be relevant to whether he has to pay damages. Therefore, the rules of conduct of the country in which the harmful act was committed, while often coinciding with the law of the affected market, may be taken into account when applying the substantive law. The rationale of Art. 17 even allows for primarily the rules of the affected market to be taken into account when market participants could expect this law and not the rules of the country where the harmful act was committed to be relevant for damage claims. Ultimately, this means that the rules of conduct of the affected market will usually be relevant, albeit not automatically but rather taking into account their nature as overriding mandatory rules. The differentiation between the applicable tort law and the relevant rules of conduct is already necessary for those rules that follow the country-of-origin principle. By contrast, it would not be consistent with the principles of the Rome I and Rome II Regulations to apply the tort law of the violated rule of conduct, as this would mean that overriding mandatory rules would determine the applicable tort law.
Hannes Wais, Einseitige Gerichtsstandvereinbarungen und die Schranken der Parteiautonomie (Unilateral Jurisdiction Agreements and the Limits of Party Autonomy)
1. Unilateral jurisdiction agreements may seem unfair when viewed from a purely procedural perspective. However, the mere imbalance of jurisdictional options between the parties may be counterbalanced by a financial or other benefit for the (procedurally) disadvantaged party. The regulation does not provide for a standard of review against which the implied unfairness can be measured.
2. Unilateral jurisdiction agreements may constitute an abuse of law. Such an abuse of law is generally prohibited under the Brussels I Regulation. Thus, where an abuse of law is ascertained, the unilateral jurisdiction agreement is void. An abuse of law exists where the sole purpose of the unilateral jurisdiction agreement is to render it impossible for the disadvantaged party to file a lawsuit or to appear in court.
3. Unilateral jurisdiction agreements may infringe substantive national law. Article 25(1) Brussels I Regulation provides for the application of the law of the prorogated forum for questions concerning the agreement’s substantive validity. Notwithstanding the still unclear definitive scope of Art. 25(1) Brussels I Regulation, the rules of lex fori prorogatiwill, in any case, apply where their purpose is to safeguard the existence of real party autonomy.
4. With regard to German substantive law, the provisions on the admissibility of standard contract terms (Secs. 305 ff. German Civil Code (BGB)) mostly fulfil these requirements. Due to the inherent imbalance in the procedural options, unilateral jurisdiction agreements differ from the conceptual approach to jurisdiction underlying the Brussels I Regulation. For this reason, where Secs. 305 ff. BGB are applicable, unilateral jurisdiction agreements are generally presumed to be void.
5. Article 31(2) Brussels I Regulation does not apply to unilateral jurisdiction agreements. Hence, these types of agreements are not immune to so-called “torpedo claims” that are filed with the sole purpose of delaying trial in the chosen court.
Johan Meeusen, Fieke van Overbeeke, Lore Verhaert, The Link Between Access to Justice and European Conflict of Laws after Lisbon, Much Ado About Nothing?
Since the Treaty of Lisbon, the access to justice principle has become “serious business”. Its insertion in the Treaty implies a certain gravity. The inclusion of conflict of laws within that realm provokes many questions. As has been explained in this paper, access to justice is not easy to define within the framework of the EU Treaty and is primarily understood in a procedural sense. It is therefore rather odd that European conflict of laws harmonisation should be approached in its light, as a procedural concept of access to justice does not seem apt to impose a substantive, policy-inspired direction upon conflict of laws, apart then from promoting the benefits served by harmonisation as such. Also, one could read in the strong emphasis by Articles 67(4) and 81(1) TFEU on mutual recognition of judicial and extrajudicial decisions in civil matters another confirmation of this procedural approach towards conflict of laws in the EU, which could eventually result in its completely auxiliary position.
From a conflict of laws perspective, yet paradoxically even more so from a broader EU perspective, such limited understanding of the purpose which choice-of-law rules can serve, would be unfortunate as some specific and valuable features of conflict of laws might remain unused. Appropriate choice-of-law rules may in their way contribute to the attainment of substantive policy goals. It should be noted however that not only this ability to incorporate policy objectives in choice-of-law rules pleads for a well-balanced approach between mutual recognition and European conflict of laws as developed by the EU legislature. Harmonised choice-of-law rules in important or delicate fields tend to create more legal certainty as well as inspire more political and judicial acceptance, one must assume, than a system solely based on mutual recognition. The Rome I, II and III Regulations and those on Maintenance and Succession illustrate the advantages of an elaborated, legislative system of conflict of laws very well. The AFSJ, however broad and vague this concept still may be, can certainly serve as an appropriate framework for the elaboration of private international law within the EU with ample space for the establishment of such a well-balanced system. The prominent place of the AFSJ, enhanced by the Treaty of Lisbon and paralleled with the clear categorisation of conflict of laws in this area, can be very instrumental in both preventing an isolated approach to conflict of laws and providing a framework which would fit its proper characteristics. Possibly, the somewhat enigmatic link with access to justice, in a modern understanding which includes substantive policies, could even stimulate this process.
The Department of Private International Law of the University of Szeged and the Federal Markets “Momentum” Research Group (established by the Hungarian Academy of Sciences and the University of Szeged) are convening a conference on “Global challenges, European unification and national diversity in private international law”. The conference is organized by Professor Csongor István Nagy, and supported by the Ministry of Justice of Hungary.
The focus will be on the global challenges emerging for EU private international law, including their causes and consequences. Besides the European perspective, the national perspective is a central theme of the conference due to recent re-codifications and major reforms of domestic private international law in Poland, the Czech Republic, Hungary and Romania (re-codification in Croatia is pending). The national experiences regarding the symbiosis of the EU and the national regimes will be discussed. The speakers will explore the evolving interaction between EU conflict of laws and national systems featured by various forms of cross-fertilization.
The event will take place on 17 November 2017 at the University of Szeged, Rector’s Office, ground floor room 5, 6720 Szeged, Dugonics square 13.
For more information and the program, please click here.
The conference is open to the public; however, participants are kindly requested to register here.
The information below has been kindly provided by the European Commission
The European Commission (Directorate General for Justice and Consumers) is establishing a new expert group which shall assist the Commission in the revision and the preparation of a possible initiative with regard to Regulation (EC) 1393/2007 on service of documents and Regulation (EC) 1206/2001 on taking of evidence. The group shall be composed of 20 members appointed in a personal capacity who are experts in the area of cross-border judicial co-operation in civil and commercial matters. The call for members is open until 27 November 2017. More information is available here and here.
Entries for the St Petersburg International Legal Forum Private Law Prize will close on 15 November 2017. The first prize, to the value of 10 million rubles, will be awarded to the author of the best research monograph or author(s) of a research article published on any topic of private law, private international law or comparative law. There is no word or page limit for monographs and articles. (Textbooks and academic commentaries are not eligible.)
Candidates’ monographs or articles must be nominated by one of the 81 universities and institutions listed on pages 8-11 of the competition guidelines, which are accessible here: https://spblegalforum.ru/cm/userfiles/file/SPBILF-2018_Award_eng.pdf.
The prize’s selection committee consists of experts many of whom are well-known to the readers of this blog, including Jürgen Basedow, Marta Pertegás, Michael Bonell, Roy Goode and Takeshi Kojima, to name a few.
The prize will be awarded at the VIII St Petersburg International Legal Forum in May 2018.
Further details on the conditions of the prize and the selection committee are available here: https://spblegalforum.ru/en/2018_SPBILF_Award.
On 2 and 3 November 2017, the Radboud University at Nijmegen hosted the 9th Transnational Commercial Law Teachers’ Meeting. In these meetings, teachers of transnational commercial law from all over the world gather to discuss fundamental issues and core instruments of unified or harmonized commercial law as laid down in the “bible” of transnational commercial law by Roy Goode, Herbert Kronke and Ewan McKendrick (see here), but also current trends and teaching methods.
This time, the meeting focused on “Transnational Commercial Law and Natural Resources”. After the opening by the President of the University Daniel Wigboldus, Herbert Kronke (Iran-US Claims Tribunal, emeritus of Heidelberg University, former Secretary-General of UNIDROIT) and Thomas Keijser (Radboud University), in a first panel chaired by Charles Mooney, University of Pennsylvania Law School, several speakers addressed the latest developments of UNIDROIT’s Cape Town Convention on International Interests in Mobile Equipment and its latest Protocol on Mining, Agriculture and Construction Equipment (MAC Protocol) as well as further potential areas of application such as e.g. renewable energy machinery but also with a view to other types of cross-border secured transactions (Howard Rosen, Rail Working Group, Benjamin von Bodungen, German Graduate School of Management and Law, Teresa Rodríguez de las Heras Ballell, Universidad Carlos III de Madrid, Ole Börger, Judge at the Oberlandesgericht at Bremen, Peter Winship, Southern Methodist University School of Law, Louise Gullifer, University of Oxford/Radboud University, Jeffrey Wool, Aviation Working Group, University of Washington School of Law, University of Oxford).
A second panel chaired by Anna Veneziano, Secretary-General of UNIDROIT ad interim, University of Teramo, dealt with UNIDROIT’s projects on contract farming, in particular its Legislative Guide, discussed by Henry Gabriel, Elon School of Law and Bruno Zeller, University of Western Australia.
In the following Athanassios Kaissis (Aristotle University and International Hellenic University of Thessaloniki) shortly presented the concept and the didactics of his LL.M. in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law, and the author of these lines did likewise on the semester abroad program of EBS University in Wiesbaden “EBS Law Term: Transnational Commercial Law”.
Chaired by Herbert Kronke, Hector Tsamis (PhD student of the International Hellenic University), Hannah Buxbaum (Indiana, Maurer School of Law), and Charles Mooney presented legal and regulatory approaches towards sustainable finance and sustainability reporting and securities disclosure regimes. It became clear that sustainability is being more and more supported on all levels including capital markets regulation (financial disclosure requirements) and corporate governance (non-financial accounting standards). The first day closed with an inspiring dinner speech by Roy Goode.
The second day focused on private law in general in respect to responsibilities, liabilities and litigation. On the first panel chaired by Hannah Buxbaum, Hans van Loon (Former Secretary-General of the Hague Conference) presented principles and building blocks for a global legal framework for civil litigation in environmental matters. He referred to international instruments bringing about a shift of paradigm such as e.g. the UN 2030 Agenda for Sustainable Development or the Ruggie Principles taken up more and more in strategic litigation such as the law suit against RWE in Germany by a Peruvian farmer at the city of Huaraz on the delictual responsibility for contributing to climate change and thus threatening the livelihood of the claimant. This case (see e.g. the report by the NGO Germanwatch) will be decided upon appeal by the Upper Regional Court of Hamm on 13 November 2017, a timely moment during the UN Climate Change Conference in Bonn. Jaap Spier (retired Advocate-General in the Supreme Court of the Netherlands, Universities of Amsterdam and Stellenbosch) continued the topic with a view on enterprise principles. Marc Loth (Tilburg University) drew some lessons from the Urgenda case, a Dutch case raising the issue of state liability for climate change (Urgenda Foundation v. The State of the Netherlands, see e.g. here) and Jan van Dunné, Erasmus University Rotterdam, analyzed liability issues in gas and coal mining for damages caused by soil subsidence, earthquake and subsoil water management under Dutch law. Finally, Tedd Moya Mose (PhD student of Queen Mary University of London), presented on international financing of renewable energy.
After a second interlude on didactics by Camilla Anderson (University of Western Australia) and Caslav Pejovic (Kyushu University), Athanassios Kaissis took the chair for the afternoon panel on dispute resolution. Pauline Ernst (Radboud University) and Gerard Meijer (NautaDutilh) presented on experiences from practice on arbitration and energy sector, both commercial and investor-state. Anna Marhold (Tilburg University) reported on dispute resolution mechanisms and the role of the industry in European regulatory agencies for energy. Vesna Lazic (Utrecht University) spoke about the “enforcement” of annulled arbitral awards in light of the Pemex and (one of the several) Yukos cases. Finally, the author of these lines presented on a recent type of cases in environmental litigation in which claimants seek to draw the foreign, in particular African, subsidiaries of European groups of companies into European courts in order not only to get damages but also to get injunctive relief against the subsidiary to stop them from further pollution or to have them taking measures immediately to protect the local population.
The primary example at the moment is Royal Dutch Shell and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria Ltd. In the UK, this is the case of Okpabi & Ors v Royal Dutch Shell Plc & Anor, [2017] EWHC 89 (TCC), 26 Jan 2017, appeal pending. Similar case against other UK parents are Lungowe & Ors v Vedanta Resources Plc & Anor, [2016] EWHC 975 (TCC), 27 May 2016, appeal dismissed 13 October 2017, [2017] EWCA Civ 1528, and AAA & Ors v Unilever Plc & Anor, [2017] EWHC 371 (QB), 27 February 2017. For the respective ligitation against Shell in the Netherlands see A.F. Akpan v. Royal Dutch Shell, plc, District Court of the Hague (Rechtbank), 30 January 2013, confirmed on the jurisdictional issues by the Court of Appeal (Gerechtshof) of the Hague, judgment of 17 December 2015). As opposed to most English decisions, the Dutch Court of Appeal signalled a willingness to further develop the applicable Nigerian tort law in light of (the similar) English law on the parent’s duties of care for its subsidiaries towards a liabililty, but the appeal on the merits is still pending. This evolving case law meets with legislative initiatives (e.g France, the Netherlands, Switzerland, EU in respect to conflict minerals) that seek to establish more clearly a direct delictual liability of the parent company that in turn is the key requisite for establishing “annex” jurisdiction (“forum connexitatis”) under a “real case” or proximity analysis for the foreign subsidiary located in third states to which Article 8 no. 1 Brussels Ibis Regulation does not apply, but rather the respective for a connexitatis under national jurisdictional law. Such forum connexitatis does not exist under German national procedural law which might be the explanation why this type of case has not arisen in Germany, but one might of course think of delictual jurisdiction for both the parent and the foreign subsidiary by mutual attribution of delictual actions as joint tortfeasors, a concept that is interpreted broadly under section 32 German Code of Civil Proceudre but of course again requires such a delictual claim against the parent under the applicable tort law in the first place.
After some input on space law by Frans van der Dunk (University of Nebraska-Lincoln, College of Law) the conference was closed by Dean Steven Bartels. The conference expressed its gratitude and appreciation to him and in particular to Thomas Keijser and his splendid team for inviting the 9th TCL Teachers’ Meeting to Radboud University and for the great hospitality of one of the best universities of the country (at [one of?] the oldest cities in what is today the Netherlands and a Member of the Hanse, i.e. the Hanseatic League, as of 1402).
The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has issued a Preliminary Explanatory Report on the draft Convention on Judgments (Preliminary Document No 7 of October 2017) in both English and French for the attention of the Special Commission meeting of November 2017 on the Recognition and Enforcement of Foreign Judgments.
The Preliminary Explanatory Report was prepared by Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain, and Geneviève Saumier, McGill University, Canada.
More information relating to the meeting is available at https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission/. As is evident from the Information Documents currently listed (some of which are available), the meeting will deal in particular with intellectual property rights and the extent to which they should be included in the scope of the draft Convention.
By way of comparison, it should be noted that intellectual property rights were discussed at length during the meetings of the Hague Convention of 30 June 2005 on Choice of Court Agreements (see Articles 2 n) and o) and 10(3)) and eventually, Article 21). This was, in my view, a good compromise.
Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.
Hart Publishing Ltd. (UK) has just announced the release of Cross-Border Litigation in Europe, edited by Paul Beaumont, Mihail Danov, Katarina Trimmings and Burcu Yüksel (ISBN 9781782256762, £90.00). The following description is drawn from the publisher’s flyer:
“This substantial and original book examines how the EU Private International Law (PIL) framework is functioning and considers its impact on the administration of justice in cross-border cases within the EU. It grew out of a major project (ie EUPILLAR: European Union Private International Law: Legal Application in Reality) financially supported by the EU Civil Justice Programme. The research was led by the Centre for Private International Law at the University of Aberdeen and involved partners from the Universities of Freiburg, Antwerp, Wroclaw, Leeds, Milan and Madrid (Complutense).
The contributors address the specific features of cross-border disputes in the EU by undertaking a comprehensive analysis of the Court of Justice of the EU (CJEU) and national case law on the Brussels I, Rome I and II, Brussels IIa and Maintenance Regulations. Part I discusses the development of the EU PIL framework. Part II contains the national reports from 26 EU Member States. Parts III (civil and commercial) and IV (family law) contain the CJEU case law analysis and several cross-cutting chapters. Part V briefly sets the agenda for an institutional reform which is necessary to improve the effectiveness of the EU PIL regime. This comprehensive research project book will be of interest to researchers, students, legal practitioners, judges and policy-makers who work, or are interested, in the field of private international law.”
For further details, please click here.
Attention scholars of international law: The registration for the 2018 summer courses of The Hague Academy of International Law has opened. Over the years, thousands of students and professionals have come to the Peace Palace in The Hague to acquire a deeper understanding of Public International Law and Private International Law. Have a look at the program here:
https://www.hagueacademy.nl/…/up…/2013/11/PROGRAMME-2018.pdf
And register here:
Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?
The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.
According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).
Whereas the Court of Cassation ruled that the reserved portion is mandatory in internal matters, the question of its imperative nature in international cases was yet unclear. Authors disagree. While some consider that the réserve héréditaire cannot be considered as such as part of French ordre public international, others consider that due to the fact that it is an expression of solidarity among family members as well as a guarantee of equality between heirs, it has to be part of French international public policy.
The controversy was aggravated in 2011 when the Conseil Constitutionnel condemned le droit de prélèvement for amounting to a discrimination based on nationality. The droit de prélèvement is another specific French mechanism. It allows French heirs that have been deprived of the reserved portion from the assets located abroad to deduct the equivalent of such reserved portion from the part of the deceased’s assets that are located in France. As a consequence of this decision, the reserved portion remained the only protection for heirs from the risk of disinheritance.
However, in both decisions, the Court found that the mere fact that the foreign law does not provide for a mechanism such as the reserved portion does not amount to a violation of French international public policy. The foreign law could nevertheless be disregarded, but only if its concrete application in a specific case leads to a situation that would be incompatible with French essential principles.
Giving the particulars circumstances of the cases, the Court found that in both cases the application of Californian law was not contrary to French public policy. First, the Court outlined that the deceased had lived in California for over thirty years and that most of their assets were located there. As a consequence, both situations were not strongly connected to the French forum. Then, the Court pointed out that the children living in France were adults and that their economic situation will not suffer from their being deprived of the succession.
These observations lead the Court to consider that, in these situations, the Californian law is not contrary to French international public policy even though it does not provide for a reserved portion. The Court emphasis on the particular circumstances of the case, namely that the situation was mainly located in California and that none of the claimants was in need or economically instable, indicates that these circumstances weighed strongly on the outcome. It does not exclude that, in different circumstances, a foreign law that would not provide for a reserved portion could be dismissed as contrary to public policy.
Prior to the coming into force of the Succession Regulation, the solution appears in accordance with its public policy provision. Stating that courts could only refuse to apply provisions that are manifestly incompatible with the forum’s international public policy, Article 35 allows that foreign laws be disregarded when their application could lead to serious consequences. It does not appear to be the case in the present situations.
The new discussed question is now: In which case the application of a foreign law not including a reserved portion could lead to a situation incompatible with French essential principles?
Readers may have noticed a surge in blog posts during the month of October. Indeed when I scheduled last night’s release I noticed I had effectively posted every working day (and some week-end days, too) in the past month. This is testimony to an exciting amount of developments in the areas on which I report, particularly in conflict of laws.
I cannot promise you’ll be treated to a post every day for November, too. Neither however will I trick you into having to wait too long for reporting on the many interesting cases I have in the queue.
Happy Halloween.
Geert.
On Friday, 15 December 2015, the Opening Ceremony of the Humboldt Consumer Law Clinic’s fifth cycle will take place. The ceremony will focus on current developments in the law of general terms and conditions which, from a legal perspective, create new challenges and pose numerous interesting and controversial questions.
“Fundamentals and latest challenges of the control of general terms and conditions”
Speaker: Prof. Dr. Phillip Hellwege, M.Jur. (Oxford), University of Augsburg and Vice President of the European Society for Comparative Legal History
Panelists: Jutta Gurkmann, Federation of German Consumer Organisations, and Martin Freitag Association of the German Construction Industry.
The ceremony will start at 4 p.m. and take place at the Festsaal Luisenstraße 56, 10115 Berlin.
If you wish to participate please register here.
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