Droit international général

Private International Law – South Asian States’ Practice, edited by / a cura di S. R. Garimella, J. Stellina, Springer, 2017, ISBN 9789811034572, 442 pp., EUR 207,99.

This book shows how, with the increasing interaction between jurisdictions spearheaded by globalization, it is gradually becoming impossible to confine transactions to a single jurisdiction. Presented in the form of a compendium of essays by eminent academics and practitioners in the field, it provides a detailed overview of private, international law practice in South Asian nations, addressing contemporary discourse within this knowledge domain. Conflict of laws/private international law arises from the universal acknowledgment that it is difficult to govern human transactions solely by the local law. The research presented addresses the three major threads of private international law – jurisdiction, choice of law and enforcement – within each of the South Asian countries in the areas of family law and commercial law. The research in family law domain includes traditional areas such as marriage, divorce and maintenance, as well as some of the contemporary concerns in this region – inter-country child retrieval, surrogacy, and the country statement on accession to the Hague Conventions related to this domain. In commercial law the research explores the concerns raised with regard to choice of law issues in transnational contracts, and also enforcement of foreign judgment/arbitral awards in the nations of this region.

Le contrôle étatique des sentences arbitrales internationales, Jérémy Jourdan-Marques, L.G.D.J., 2017, ISBN 978-2-275-05552-7, 576 pp. Eur 56.

Par un étonnant paradoxe, le contrôle étatique des sentences arbitrales internationales conduit à réintroduire la justice étatique là où les parties avaient voulu l’exclure. Mais ce paradoxe pourrait n’être qu’apparent. Une approche fondée sur la distinction entre les intérêts publics et les intérêts privés ouvre de nouvelles perspectives. L’examen réalisé par le juge étatique l’invite à s’assurer, d’une part, du respect par les arbitres des intérêts privés des parties et, d’autre part, à contrôler la compatibilité de la sentence avec ses intérêts publics. Aussi paraît-il concevable que l’intérêt en cause puisse modifier directement la nature du contrôle exercé. Parallèlement, le juge compétent est tantôt indirectement désigné par les parties, tantôt déterminé par le lieu d’exécution de la sentence. Par conséquent, il est légitime d’assigner aux juges de l’annulation et de l’exequatur une mission distincte, mais complémentaire. Le juge de l’annulation examinerait les intérêts privés et le juge de l’exequatur garantirait la conformité de la sentence aux intérêts publics. En définitive, la distinction des intérêts privés et des intérêts publics pourrait devenir un instrument de redéfinition du contrôle étatique des sentences arbitrales internationales. À la fois plus respectueux de la volonté des parties, plus protecteur des intérêts étatiques et offrant une solution au désordre actuel du contrôle des sentences arbitrales, ce nouveau paradigme concourrait à l’efficacité de l’arbitrage.

Professor Gilles Cuniberti (University of Luxembourg) has authored a casebook entitled “Conflict of Laws – A Comparative Approach” which will be released this month by Edward Elgar Publishing.

The official abstract kindly provided by the publisher reads as follows:

“The Conflict of Laws, also known as private international law, is a field of the greatest importance in an increasingly globalized world. The analysis of any legal issue, in a case involving more than one country, must start with an assessment of which court could potentially hear the case and which law it would apply.

Contrary to other manuals or casebooks, which focus on the law of one jurisdiction, this innovative casebook offers a comparative treatment of the field. On each issue, materials from several jurisdictions are discussed and compared. The approach centers on comprehending the common principles of the field, but also highlights the fundamental differences. The goal is to train lawyers who not only will know the law of their own jurisdiction, but also will have an understanding of the key differences existing between the main models, and will thus be able to interact usefully with clients from other jurisdictions.

This casebook systematically presents and compares the laws of four jurisdictions: the United States, the European Union, France and England (where left untouched by EU harmonization). It offers additional insight into rules applicable in China and Japan and also discusses remarkable solutions adopted in a wide range of jurisdictions such as Italy, Germany, the Netherlands, Canada and Tunisia. All materials from non-English speaking jurisdictions have been translated into English.

Key features of the casebook:
• written by a leading authority in the field
• carefully selected extracts from primary and secondary sources build a clear picture of the field
• expert analytical commentary and questions set the extracts in context
• US, EU, French and English perspectives integrated throughout the text to ensure maximum relevance and encourage students to make comparative assessments
• numerous references to Chinese and Japanese solutions
• leads students through the field from beginning to end
• perfectly pitched for international students and courses with a global outlook.”

Further information, including a table of contents, is available on the publisher’s website.

The Court of Justice rendered on 16 February 2017 its judgment in Agro Foreign Trade & Agency Ltd v Petersime NV (Case C‑507/15), a case involving a commercial agency contract concluded between a Belgian principal and a Turkish agent. The contract had been submitted by the parties to Belgian law and featured a choice-of-forum clause conferring jurisdiction to the courts of Ghent, in Belgium.

The issue submitted to the Court concerned the interpretation of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents and of the 1963 Agreement establishing an association between the EU and Turkey, together with the Additional Protocol thereto.

Specifically, the Court was asked to determine whether the above texts preclude national legislation transposing the directive into the law of a Member State (Belgium, in the case at issue), which excludes from its scope of application a commercial agency contract in the context of which the agent is established in Turkey, where it carries out activities under that contract, and the principal is established in that Member State. The exclusion was such that, in the circumstances, the agent could not rely on rights which the directive guarantees to commercial agents after the termination of the contract.

The Court held that the Directive and the Association Agreement do not preclude such national legislation.

In its reasoning, the Court began by focusing on the scope of application of the Directive. Having noted that the situation of a contract between a EU principal and a non-EU agent is not expressly referred to in the Directive, the Court observed, relying on the second and third recitals of the Directive, that the harmonising measures provided thereunder seek to protect commercial agents in their relations with their principals, to eliminate restrictions on the carrying-on of the activities of commercial agents, to make the conditions of competition within the Community uniform, to promote the security of commercial transactions, and to facilitate trade in goods between Member States by harmonising their legal systems within the area of commercial representation.

It added that the purpose of the regime established in Articles 17 to 19 of the Directive is to protect freedom of establishment and the operation of undistorted competition in the internal market.

Accordingly, where the commercial agent carries out its activities outside the EU, the fact that the principal is established in a Member State does not present a sufficiently close link with the EU for the purposes of the application of the Directive.

The Court then moved on to determine whether the application of the Directive to commercial agents established in Turkey can follow from the Association Agreement.

The Court acknowledged that, pursuant to the Agreement, the provisions of the Treaties on the free movement of workers and the freedom to provide services must be extended, so far as possible, to Turkish nationals to eliminate restrictions on the freedom to provide services between the contracting parties.

It noted, however, that the interpretation given to the provisions of EU law concerning the internal market cannot be automatically applied by analogy to the interpretation of an agreement concluded by the EU with a non-Member State, and that the Association Agreement, which is intended essentially to promote the economic development of Turkey, does not establish any general principle of freedom of movement of persons between Turkey and the European Union. Its purpose is rather to guarantee the enjoyment of certain rights only within the territory of the host Member State.

By contrast, the Court stressed that, in the context of EU law, the protection of the freedom of establishment and the freedom to provide services, by means of the regime provided for by Directive 86/653 with respect to commercial agents, reflects the objective of establishing an internal market, conceived as an area without internal borders, by removing all obstacles to the establishment of such a market.

The Court concluded that the differences between the Treaties and the Association Agreement preclude the system of protection laid down by the Directive from being held to extend to commercial agents established in Turkey, in the context of that agreement.

Jean-Sylvestre Bergé (University of Lyon) has published an interesting analysis of the judgment in his blog Droit & Pluriel.   

 CALL FOR PROPOSALS FOR A SPECIAL ISSUE OF ACTA JURIDICA

The Acta Juridica invites proposals for its special issue: Foreign Direct Investment (FDI) & The Rule of Law. Contributors will be invited to attend a Colloquium to be held in Cape Town on 27 & 28 July 2017 where the research and findings will be presented with the objectives of determining the common and overlapping themes in linking FDI and the Rule of Law in specific areas of law. It is proposed that the outcomes of the colloquium be published in the 2018 Acta Juridica, to be edited by Debbie Collier, Tracy Gutuza and Silindile Buthelezi of the University of Cape Town.

Following the colloquium the contributors will submit the final papers (maximum of 5000 words) to the editors by 02 October 2017. We are accepting proposals in the form of 500-750 word abstracts. The editors will prepare an introductory chapter and if necessary, commission articles to address specific issues. All the papers will be subjected to a double blind peer review process, overseen by the editors. It is expected that the finalised text would be submitted by November 2017.

Submission and Review Timeline 

• Proposals including tentative contributor list due 03 March 2017.
• Contributors will be contacted with final determination about submissions by 03 April 2017.
• First draft manuscripts submissions are due 30 June 2017.
• Colloquium to be held 27 & 28 July 2017 at the University of Cape Town, South Africa.
• Final draft manuscript submissions are due 02 October 2017.

The Acta Juridica is an annual thematic journal published by Juta Law in conjunction with the Faculty of Law of the University of Cape Town. It is a peer reviewed and edited journal.

In the context of the need to grow the South African economy, the role of, and the need for, FDI as a source of capital and a contributor to economic growth is both acknowledged and contested. A recent collaborative study on the link between FDI and the Rule of Law by, among others, the Bingham Centre for the Rule of Law and the British Institute of International and Comparative Law indicated that the Rule of Law is an important factor in the decision by corporate investors to undertake investment in a foreign jurisdiction. While the above study considered the role of the Rule of Law across a number of jurisdictions, we propose a consideration in the context of FDI in Africa, with a particular emphasis on South Africa and South African Law, in particular the impact of the Constitution, the legal framework for FDI, and related areas of law including, but not limited to, labour law, tax law, intellectual property law, technology law, international trade law, company law/corporate governance, and competition law. These themes will include the strategic and policy considerations of the particular areas in relation to FDI, the impact of the chosen policy and legislative framework on FDI, the administrative aspects (procedure) of implementing the policy and legislative framework and the impact of FDI.

It is envisaged that the colloquium will consist of three themes: 1. FDI & Economic Growth: Theoretical Perspectives; 2. FDI: International law & Investment Treaties; 3. FDI and the Regulatory Framework in South Africa. Within these themes, we envisage the following topics (but other proposals are also welcome):

1.What is FDI and when is it desirable?

2.FDI in Africa

3.The link between FDI, the Rule of Law and Economic Development in Economic Theory

4.Bilateral Investment Treaties and FDI relationship through econometric studies: why doinvestors decide to invest

5.International Law protection of foreign investments

6.FDI and Tax Law

7.FDI and Employment Law/Labour standards

8.FDI and Intellectual Property

9.FDI and the Transfer of Technology

10.FDI and Corporate Governance

11.FDI and Regional Development

12.FDI and Transfer Pricing

13.FDI and Competition Law

14.The link between FDI, the Bilateral Investment Treaties and the financial services industry

Proposals should be submitted to the special issue editors: Debbie Collier (debbie.collier@uct.ac.za ), Tracy Gutuza (tracy.gutuza@uct.ac.za ) or Silindile Buthelezi (silindile.buthelezi@uct.ac.za ).

The José María Cervelló Chair of IE Law School and the ONTIER law firm announce the “Eleventh José María Cervelló Busines Law Prize”.
The main purpose of the Prize is to promote legal study and research, and to facilitate access to the LLM courses of IE Law School for people who do not have the necessary financial resources.

The prize consists of the award of € 30,000 as follows:
€ 10,000 will be given to the author of the winning essay.
€ 20,000 will be assigned to the José María Cervelló Chair to be applied to its scholarship programme for the study of legal or tax courses at IE Law School.
Up to a maximum of two runner-up awards may be given to essays of sufficient quality to merit that distinction.

The subject of the essays opting for the “Eleventh José María Cervelló Business Law Prize” is: “Brexit: Legal consequences of the departure of the United Kingdom from the EU for businesses. Legal framework of the withdrawal and new Legal Framework, special reference to the problems of transitory law in respect of contracts, corporate operations and litigation”

All essays must be original, unpublished works written in Spanish or English. The length is a minimum of 25 and a maximum of 35 pages. The closing date for entries is Monday 8th May 2017 at 23:59 p.m. (Madrid, Spain time). The award ceremony will take place in June or July 2017, at IE Law School. All participants will be notified in due course.

All persons or Spanish or foreign nationality who are graduates in Law, holding either a pre-Bologna “licenciatura” qualification or a degree (grado) may take part.

For further details (members of the jury; essay format; presentation) click here: Cervello Prize on Brexit

Dr. Anabela Susana de Sousa Gonçalves, Assistant Professor at the University of Minho, has provided this piece of information to be shared with CoL readers. BILETA stands for British and Irish Law Education and Technology Association.

The Law School of the University of Minho (Braga, Portugal) will be hosting the BILETA Annual Conference, held from Thursday 20th to Friday 21st of April 2017.

The theme of the conference is: International perspectives on emerging challenges in Law, Technology and Education.

Keynote speakers will be:

• Professor Joe Cannataci: UN Special Rapporteur on the right to privacy
• Professor Jose-Luis Pinar: Professor of Administrative Law, CEU University of Madrid. Former Director of the Spanish Data Protection Agency (2002-2007). Former Vice-Chairman of the European Group of Data Protection Commissioners (Art. 29 Working Party Data Protection) (2003-2007)
• Professor Burkhard Schafer: Professor of Computational Legal Theory, The University of Edinburgh

In relation to this conference postgraduate students have the opportunity to enter two postgrad competitions. To do so they need to submit a full paper (6-10,000 words) by the deadline of the 31st of March. Three papers will be chosen to compete for the Google award, which will involve defending the work in a session at the conference and a public vote. The remaining papers will go forward for the BILETA award, to be selected by the BILETA Exec. Please indicate on submission of the abstract whether you aim to enter the competitions.

Abstracts of around 400-500 words are welcome on any area relating to the conference theme, with key areas including:

• Society, Business and Data Protection
• Intellectual Property Rights in the Information Society
• International challenges in IT regulation
• Private International Law solutions for the emerging challenges in Law and Technology
• E-commerce
• Public policies and governance in ICT Law
• Dispute resolution and management in virtual environments
• Technology and criminal investigation
• New technological platforms and education in law
• Smart environments in educational contexts
• Smart cities: ethical and legal challenges
• Multicultural Societies, Integration and ICT Law

The deadline for submission of abstracts has been extended to Friday the 17th of February 2017.  Abstracts should be emailed to: bileta2017@gmail.com 

Please contact Catherine Easton c.easton@lancaster.ac.uk if you have any general queries about the conference.  

In addition, BILETA 2017 will feature special panels such as a discussion on the impact of Brexit on the development of UK and EU Information Technology Law

For travelling, accommodation and further relevant details please click here.

 

On Friday, 24 February 2017, the research project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters” is organizing a workshop on European International Family Law under the title

“European Open Issues in Private International Law:

Matrimonial and Maintenance Law”

at the University of Genoa.

The unalex project is aimed at the expansion of a multilingual international source of literature on legal instruments of EU law and of international uniform law. It is based on the already existing unalex portal (http://www.unalex.eu/), a legal information system on European and international uniform law, containing a well equipped collection of international case law, structured Compendia and a large number of additional materials.

During the workshop „unalex open issues“ shall be discussed as a new instrument, stimulating a scientific debate on controversial opinions from different legal systems. In addition the concept of an Encyclopedia of European family law will be presented, serving to document relevant legal texts of different Member States.

A primary goal of the unalex project is to interest and to win authors from different European legal systems to create Compendia and commentaries and to form a network of authors.

Registration for the conference is possible by sending an e-mail to francesca.maoli@edu.unige.it.

On 24 January 2017, the Grand Chamber of the ECtHR rendered its judgment in the case of Paradiso and Campanelli v. Italy. The case involves a child born in Russia following a gestational surrogacy contract entered into by an Italian couple with a Russian woman. The couple complained that the measures taken by the Italian authorities in respect of the child, which resulted in the latter’s permanent removal, had infringed their right to respect for private and family life, guaranteed by Article 8 of the Convention.

The Grand Chamber held that Italy did not violate Article 8 of the ECHR. Having regard to the absence of any biological tie between the child and the intended parents, the short duration of the relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court considered that the conditions for the existence of family life had not been met. The Court accepted, however, that the facts of the case fell within the scope of the applicants’ private life.

In the Court’s opinion, the Italian authorities, having concluded that the child would not suffer grave or irreparable harm as a result of the separation from the Italian couple, struck a fair balance between the different interests at stake, while remaining within the State’s margin of appreciation. 

Il 24 gennaio 2017, la Grande Camera della Corte europea dei diritti dell’uomo si è pronunciata nel caso Paradiso e Campanelli c. Italia. Il caso riguarda un minore nato in Russia a seguito di un contratto di maternità surrogata concluso da una coppia di italiani con una donna russa. La coppia si lamentava del fatto che le misure assunte dalle autorità italiane, che avevano comportato l’allontanamento del minore, integravano una violazione del diritto alla vita privata e familiare garantito dall’art. 8 della Convenzione europea dei diritti dell’uomo.

La Grande Camera ha concluso che non vi è stata alcuna violazione dell’art. 8 da parte delle autorità italiane. Considerata la mancanza di un legame biologico tra il bambino ed i genitori committenti, la breve durata del rapporto con il minore e l’incertezza dei legami giuridici, e nonostante l’esistenza di un progetto genitoriale nonché la qualità dei legami affettivi, la Corte ha ritenuto che le condizioni per l’esistenza della vita familiare non fossero soddisfatte. La Corte ha riconosciuto, tuttavia, che la fattispecie interessasse la vita privata dei ricorrenti.

Per la Corte, le autorità italiane, nel considerare che il minore non avrebbe sofferto un pregiudizio grave o irreparabile dalla separazione dalla coppia, hanno effettuato un giusto bilanciamento tra tutti gli interessi in gioco, nel rispetto del margine di apprezzamento lasciato allo Stato.

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

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2016: Brexit ante portas!
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2015 until November 2016. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

P. Mankowski: Modern Types of Migration in Private International Law
Migration has become a ubiquitous phenomenon in modern times. Modern immigration law has developed a plethora of possible reactions and has established many different types of migrants. Private international law has to respond to these developments. The decisive watershed is as to whether a migrant has acquired refugee status under the Geneva Refugees Conventions. If so, domicile substitutes for nationality. A mere petition for asylum does not trigger this. But subsidiary protection as an equivalent status introduced by EU asylum law must be placed on equal footing. Where habitual residence is at stake, it does matter whether a residence has been acquired legally or illegally under the auspices of immigration law. Yet for judging whether a habitual residence exists, the extension of permits might be a factor.

C. Mäsch/B. Gausing/M. Peters: Pseudo-foreign Ltd., PLC and LLP: Limited in liability or rather in longevity? – The Brexit’s impact on English corporations having their central administration in Germany
On 23rd of June 2016, the people of the United Kingdom voted in a referendum against the UK staying in the European Union. If, as can be expected, the withdrawal negotiations under Art. 50 of the EU Treaty will not address the issue of pseudo-English corporations operating in the remaining Member States of the EU, the Brexit will have severe consequences for companies incorporated under English law (e.g. a Ltd., PLC or LLP) having their central administrative seat in Germany. No longer protected by the freedom of establishment within the EU (Art. 49, 54 TFEU) these legal entities will be under German PIL and the so-called Sitztheorie subjected to domestic German company law. They will thus be considered simple partnership companies (German GbR or OHG), losing from one day to the next i.a. their limited liability status – an unexpected and unjustified windfall profit for creditors, a severe blow for the company shareholders. In this paper it will be argued that the outcome can and indeed should be rectified by resorting to the legal rationale of Art. 7 para 2 EGBGB (Introductory Act to the German Civil Code). This provision preserves the legal capacity of a natural person irrespectively of whether a change in the applicable law stipulates otherwise. Extending that concept to legal entities will create a “grace period” with a fixed duration of three years during which the English law continues to apply to a “German” Ltd., PLC or LLP, giving the shareholders time to decide whether to transform or re-establish their company.

L. Rademacher: Codification of the Private International Law of Agency – On the Draft Bill Submitted by the Federal Ministry of Justice
Based on a resolution adopted by the German Council for Private International Law, the German Federal Ministry of Justice and Consumer Protection has submitted a bill to amend the Introductory Act to the German Civil Code (EGBGB) in the to date uncodified area of agency in private international law. This paper provides an overview of the proposed Art. 8 EGBGB and identifies questions of interpretation as well as remaining gaps. The draft provision applies to agents who were authorized by the principal, i.e. neither to statutory agents nor to representatives under company law. The proposal strengthens party autonomy by allowing a choice of law. Absent a choice of law, the applicable law is determined by objective criteria depending on the type of agent. The respective connecting factors, such as the agent’s or principal’s habitual residence, require perceptibility for the third party. If these requirements are not met, the applicable law residually is determined by the identifiable place of the agent’s acts or by the principal’s habitual residence. For the most part, the proposal can be characterized as a restatement of previous case law and academic writing.

H. Roth: Rule and exceptions regarding the review of the European Order of Payment in exceptional cases according to art.20 par. 2 of Reg. (EC) 1896/2006
According to Art. 20 para. 2 of Reg. (EC) 1896/2006, the European Order of Payment can be reviewed in exceptional cases. This additional legal remedy is only applicable in exceptional cases such as collusion or other malicious use of process. It is not sufficient that the defendant would have been able to detect misrepresentations by the claimant.

M. Pika/M.-P. Weller: Private Divorces and European Private International Law
Whilst substantive German family law requires a divorce to be declared in court, the instant case addresses the effect of a private divorce previously undertaken in Latakia (Arabic Republic of Syria) under Syrian law. Although, from a German perspective, the Syrian Sharia Court’s holding has been merely declaratory, the European Court of Justice considered its effect before German courts to be a matter of recognition. Accordingly, it rejected the admissibility of the questions referred to the Court concerning the Rome III Regulation. This ruling indicates the unexpected albeit preferable obiter dictum that the Brussels II bis Regulation applies on declaratory decisions concerning private divorces issued by Member States’ authorities. Subsequently, the Higher Regional Court Munich initiated a further, almost identical preliminary ruling concerning the Rome III Regulation. However, the key difference is that it now considered the Regulation to be adopted into national law.

A. Spickhoff: Fraudulent Inducements to Contract in the System of Jurisdiction – Classification of (contractual or legal) basis of claims and accessory jurisdiction
Manipulation of mileage and concealment of accidental damage belong to the classics of car law and indicate a fraud. But is it possible to qualify a fraudulent misrepresentation in this context as a question of tort with the meaning of art. 7 no. 2 Brussels I Regulation (recast)? German courts deny that with respect to decisions of the European Court of Justice. The author criticizes this rejection.

K. Siehr: In the Labyrinth of European Private International Law. Recognition and Enforcement of a Foreign Decision on Parental Responsibility without Appointment of a Guardian of the Child Abroad
A Hungarian woman and a German man got married. In 2010 a child was born. Two years later the marriage broke down and divorce proceedings were instituted by the wife in Hungary. The couple signed an agreement according to which the child should live with the mother and the father had visitation rights until the final divorce decree had been handed down and the right of custody had to be determined by the court. The father wrongfully retained the child in Germany after having exercised his visitation rights. The mother turned to a court in Hungary which, by provisional measures, decided that rights of custody should be exclusively exercised by the mother and the father had to return the child to Hungary. German courts of three instances recognized and enforced the Hungarian decree to return the child according to Art. 23 and 31 (2) Brussels IIbis-Regulation. The Bundesgerichtshof (BGH) as the final instance decided that the Hungarian court had jurisdiction under Art. 8–14 Brussels IIbis-Regulation and did not apply national remedies under Art. 20 Brussels IIbis-Regulation. In German law, the hearing of the child was neither necessary nor possible and therefore the Hungarian return order did not violate German public policy under Art. 23 (a) or (b) Brussels IIbis-Regulation.

H. Dörner: Better too late than never – The classification of § 1371 Sect. 1 German Civil Code as relating to matrimonial property in German and European Private International Law
After more than 40 years of discussion the German Federal Supreme Court finally (and rightly so) has classified § 1371 Sect. 1 of the German Civil Code as relating to matrimonial property. However, the judgment came too late as the European Succession Regulation No 650/2012 OJ 2012 L 201/07 started to apply on 17 August 2015 thus reopening the question of classification in a new context. The author argues that a matrimonial property classification of § 1371 Sect. 1 German Civil Code under European rules is still appropriate. He discusses two problems of assimilation resulting from such a classification considering how the instrument of assimilation has to be handled after the regulation came into force. Furthermore, he points out that a matrimonial property classification creates a set of new problems which have to be solved in the near future (e.g. documentation of the surviving spouse’s share in the European Certificate of Succession, application of different matrimonial property regimes depending of the Member state in question).

H. Buxbaum: RICO’s Extraterritorial Application: RJR Nabisco, Inc. v. European Community
In 2000, the European Community filed a lawsuit against RJR Nabisco (RJR) in U.S. federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). After more than fifteen years and a number of intermediate judicial decisions, the litigation came to its likely close in 2016 with the U.S. Supreme Court’s ruling in RJR Nabisco, Inc. v. European Community. The Court held that RICO’s private cause of action does not extend to claims based on injuries suffered outside the United States, denying the European Community any recovery. The case was the third in recent years in which the Supreme Court applied the “presumption against extraterritoriality,” a tool of statutory interpretation, to determine the geographic reach of a U.S. federal law. Together, these opinions have effected a shift in the Court’s jurisprudence toward more expansive application of the presumption – a shift whose effect is to constrain quite significantly the application of U.S. regulatory law in cross-border cases. The Court’s opinion in RJR proceeds in two parts. The first addresses the geographic scope of RICO’s substantive provisions, analyzing whether the statute’s prohibition of certain forms of conduct applies to acts occurring outside the United States. The second addresses the private cause of action created by the statute, asking whether it permits a plaintiff to recover compensation for injury suffered outside the United States. After beginning with a brief overview of the lawsuit, this essay discusses each of these parts in turn.

T. Lutzi: Special Jurisdiction in Matters Relating to Individual Contracts of Employment and Tort for Cases of Unlawful Enticement of Customers
A claim brought against two former employees, who had allegedly misappropriated customer data of the claimant, and against a competitor, who had allegedly used said data to entice some of the claimant’s customers, provided the Austrian Oberster Gerichtshof with an opportunity to interpret the rules on special jurisdiction for matters relating to individual contracts of employment in Art. 18–21 of the Brussels I Regulation (Art. 20–23 of the recast) and for matters relating to tort in Art. 5 No. 3 of the Brussels I Regulation (Art. 7 (2) of the recast). Regarding the former, the court defined the scope of Art. 18–21 by applying the formula developed by the European Court of Justice in Brogsitter concerning the distinction between Art. 5 No. 1 and 3 (Art. 7 (1) and (2) of the recast); regarding the latter, the court allowed the claim to be brought at the claimant’s seat as this was the place where their capacity to do business was impaired. Both decisions should be welcomed.

The University of Messina and ILSA, the International Law Students Association, organise a series of seminars on current problems of international law. Two seminars will be devoted to private international law issues. They are scheduled to take place on 26 April 2017 (Marcella Distefano will address surrogate motherhood) and on 11 May 2017 (Livio Scaffidi will speak of registered partnerships). See here for more information.

L’Università di Messina organizza assieme a ILSA, la International Law Students Association, un ciclo di seminari dedicati a questioni attuali del diritto internazionale. Due seminari riguardano tematiche internazionalprivatistiche e sono programmati rispettivamente per il 26 aprile 2017 (Marcella Distefano parlerà di maternità surrogata) e per l’11 maggio 2017 (Livio Scaffidi si occuperà di unioni civili). Maggiori informazioni a questo indirizzo.

 

The Special Commission convened by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare a preliminary draft convention on the recognition and enforcement of judgments in civil and commercial matters will meet between 16 and 24 February 2017. Discussions will be based on the draft text that resulted from the first meeting, held in 2016. The agenda of the meeting is available here. For further information on the Judgments Project, see here.

La Commissione speciale istituita dal Consiglio sugli affari generali della Conferenza dell’Aja di diritto internazionale privato per predisporre un progetto di convenzione sul riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale si riunirà fra il 16 e il 24 febbraio 2017. La base dei lavori è rappresentata dal testo sortito dal primo incontro della Commissione, svoltosi nel 2016. L’ordine del giorno dell’incontro si trova qui. Ulteriori informazioni sul Judgments Project a questo indirizzo.

Professor Dr. Giesela Rühl, University of Jena, is seeking to fill two positions as PhD students/research assistants (Wissenschaftliche Mitarbeiter) as of 1 May/1 June 2017.

Successful candidates should hold a first law degree (ideally, but not necessarily: First German State Examination) ranking in the top 10-15 % and be interested in the international dimensions of private law, in particular private international and/or European private law. A good command of German and English (spoken and written) is expected. Moot Court experience is very welcome.

The positions are half-time (50%) and will be paid according to salary scale E-13 TV-L. They will initially  run for three years, with an option to renew. Responsibilities include the support of Professor Rühl in research and teaching as well a independent teaching obligations (2 hours per week during term time).

The University of Jena is an equal opportunity employer. Applications from qualified women are particularly welcome. Candidates with disabilities will b given preference in case of equal qualification.

If you are interested in this position, please send your application (cover letter, cv, relevant documents, notably copy of law degree) to Regina Franzl (r.franzl@recht.uni-jena.de) by March 1, 2017.

More detailed information is available here.

Many thanks Michael Verhaeghe  (whom I have the pleasure with jointly to be representing a client) for alerting me to Lodi Trading in which the Belgian Supreme Court applied (and distinguished) Kolassa. Lodi Trading is registered in The Netherlands and seemingly had been duped into transferring funds to a gang of fraudsters.  As always, the judgment is very very scant on factual reference, and I have not been able to find the Court of Appeals’ judgement: if anyone can: Court of Appeal Gent, 8 December 2015.

Like the CJEU itself did clearly in Universal Music, the Hof van Cassatie distinguished Kolassa (although it does not refer to Universal Music in this part of the judgment) by insisting there be circumstances specific to the case, over and above the simple presence of a bank account, which point to the damage occurring in that State.

In Universal Music the CJEU had emphasised the need for case-specific facts for bank accounts to be a relevant factor in determining jurisdiction, by holding that ‘it is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.’ (emphasis added).

What seems (but again: see the joint caveat of the Supreme Court’s judgment being scant and the Court of Appeal’s judgment being untraceable) to be specific to this case is that the Court of Appeal had held in favour of the location of the bank account of recipient of the funds being locus damni, given that ‘internal law’ (by which I take it reference is made to Belgian, not Dutch law) determines that the time of payment is determined by the moment of accreditation of the funds to the beneficiary’s account: not (the alternative reading; but again I am assuming for the judgment’s 10 brief paras do invite speculation) the time of the funds leaving the account holder’s account.

It could well be therefore that the Supreme Court is rebuking the Court of Appeal for having Belgian law enter the equation, given the need for autonomous interpretation of European civil procedure. But I am not entirely sure.

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 2.2.11.2, 2.2.11.2.7

The new issue of the Revista Española de Derecho Internacional, REDI, has just been released both in digital and printed form. It includes the following PIL articles:

Santiago Álvarez González, What Conflict Rule Should Be Adopted To Determine The Law Applicable To Preliminary Questions On Which The Succession May Depend?

Abstract: This paper deals with the classic topic of «incidental or preliminary question» in the conflicts of laws. The start point is the question nº 13 of the Green Paper Succession and wills. There is no consensus on the answer to the incidental question- which is understandable, as this is indeed the begin of every theoretical problem. However, there is no  consensus either around the concept of incidental question. And this is something that precludes any proper discussion. As a way out the author proposes to reject the theory (rectius: the theories) of the preliminary question and to adopt a case by case approach. This ad hoc approach is based, among other, upon the multiple rules and exceptions (many of them very reasonable) proposed by authors, especially in German doctrine. In some cases «recognition» (and not conflicts of laws) can be the most appropriate approach; in others any one of the classic proposals (…) will provide with the better answer, depending on the circumstances and the most preponderant interest involved; it is also possible to avoid the problem through a proper «characterization» of the situation. The main shortcoming of this proposal – the fact that it puts legal certainty at a risk- is a fully manageable one; and in any case it is a proposal not weaker than the current heterogeneous scenario.

Rafael Arenas García, The European Legislator And The Private International Law Of Companies In The EU

Abstract: Luxembourg Court’s case law has shown that the freedom of establishment granted by the EU law affects not only the substantive company law of the Member States, but also the conflict of laws rules in matters relating to companies. In the absence of secondary legislation relating to the law governing companies in the EU, and in order to improve legal certainty it would be desirable that the European legislator draw up rules aimed to determine which will be the lex societatis governing companies incorporated in EU countries. This regulation should also concretize the matters ruled by this lex societatis and the change of the lex societatis as a result of the transfer of the registered office of the company. Among the subjects covered by this regulation it should necessarily be included the company’s legal capacity and the directors’ liability. It would be also necessary to delimitate the scope of the specific corporate regulation and that relating with insolvency proceedings.

Pedro de Miguel Asensio, Jurisdiction And Applicable Law In The New Eu General Data Protection Regulation

Abstract: The new EU General Data Protection Regulation brings about a deep transformation of the previous legal framework based on the mere approximation of laws. As regards the cross-border dimension, it amends the territorial scope of application of EU data protection law to clarify that it covers the processing of data of subjects who are in the Union by a controller or a processor not established in the Union where the processing activities are related to offering goods or services to such data subjects. This article discusses the rationale that supports the new approach and the relevant criteria for its interpretation. Unlike the previous regime, the provisions of the Regulation on its territorial scope do not determine the competent national supervisory authority. The Regulation includes specific provisions on the distribution of competences between the supervisory authorities of the Member States with regard to cross-border situations. Such rules play also an important role concerning the right to a judicial remedy against a supervisory authority. Additionally, new special jurisdiction rules are established concerning private claims by data subjects against a controller or processor as a result of the infringement of the rights granted to them by the Regulation. Such rules are of special significance with respect to the right to compensation where a damage results from an infringement of the Data Protection Regulation. One of the main objectives of this article is to clarify the issues raised by the relationship of the new special rules on jurisdiction and related proceedings with other provisions, such as those of the Brussels I (Recast) Regulation. The shortcomings of EU conflict rules in the area of private enforcement of data protection law and the interplay between the new Regulation and the general EU framework on conflict of laws are also discussed.

Fernando Esteban de la Rosa, Consumer Complaints’ Regime In The New European Law On Alternative And Online Consumer Dispute Resolution

Abstract: The global nature of online consumer trade has given rise to new strategies guaranteeing consumer rights, such as enabling online dispute resolution. The new European law, namely Directive 2013/11/EU and Regulation 524/2013/EU, has boosted regional acceptance of this trend. The present study analyses the impact of the new European legislation on the system of private international law. The study reveals, on the one hand, the need to make systematic adjustments in order to achieve a spatial scope of application for the principle of liberty according with the EU legislator´s intention, to devoid the interpretation excluding the reference to foreign consumer arbitration or to integrate some regulatory gaps inherent to the newly established system. On the other hand, it focuses on the need to verify whether the current regime complies with the requirements derived from the recognition of the right proclaimed by art. 47 ECFR and art. 19 TEU. In this perspective the study contains de lege ferenda solutions intertwined with the peculiarities of the online management of cross-border claims via the European platform.

Elena Rodríguez Pineau, Regulation Brussels IIbis Recast: Reflections On The Role Of European Private International Law

Abstract: Ten years after the Regulation (EC) 2201/2003 entered into force, and bearing in mind the jurisprudence of the European Court of Justice on the Regulation, the Commission believes that the time is ripe for a Regulation recast. Thus, in 2016 the Commission has presented its proposal. The text identifies six basic problems that are deemed to be in need of a thorough revision: international child abduction, the disposal of exequatur, the enforcement of foreign decisions, cooperation between authorities, cross-border placement of children and the hearing of the child. As the proposal highlights, the recast would aim at better protecting the best interest of the child. However, many of the new rules included entail direct harmonisation of procedural rules of Member States, which will result in a deeper integration that will foster the principles of mutual recognition and mutual trust among Member States. This article deals with the novelties of the Brussels II recast (both as to the six items previously identified as well as other new elements of the Regulation) and tackles the tension between the protection of the best interest of the child and the reinforcement of the principle of mutual recognition in the European area of civil justice.

 

All papers are in Spanish. The whole summary (thus Public International Law papers, contributions to the Foro and a selection of recently published books with a critical comment) can be downloaded here.

Guest post by Maryam Salehijam: There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligation under an ADR agreement?” To answer this question, the research is divided into two stages, the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions* with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.   The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information.  Accordingly, the information provided will only serve scientific purposes.    To complete the questionnaire, please click on the following link:http://lawsurv.ugent.be/limesurvey/index.php/678366?lang=en (closing date 29th of April 2017).   Thank you for taking this request into consideration.   *Austria, Australia, England & Wales, Germany, Singapore, the Netherlands, and the United States

The president and Mrs Trump keep on exercising the courts. In Melania Trump v Webster Tarpley and Mail Media, Inc., the circuit court for Montgomery County, Maryland, accepted jurisdiction against the former, who is resident in Maryland, but rejected it against the latter, who is resident at New York. (It is registered there and also has its head office there). The second defendant is most likely the owner of the website dailymail.com and dailymail.co.uk. Whether that was really the case was left in the middle though for the Daily Mail group (whom Wikipedia today confirmed as no longer accepting as a source of facts), wanted the judge to rule on the merits of jurisdiction rather than on a possibly wrongly identified defendant.

Alleged libel concerns reports published by Mr Tarpley, a blogger, and the Daily Mail, relating to remarks, later retracted by both defendants, on alleged past racy activities of Mrs Trump. At issue was whether the courts at Maryland have personal jurisdiction over Mail Media. Mrs Trump’s legal team suggest publication of defamatory material in a publication with significant circulation in the forum state, suffices for jurisdiction. This, they argue, is compounded by targeted interactivity between the Daily Mail and readers in Maryland. Mail Media suggest there is no direct connection between Maryland and the Mail Article at issue and that even if the court were to accept such connection, jurisdiction should be refused on the basis of forum non conveniens.

The court accepted the first defence and did not therefore entertain the second. P.7: operating a website, even one that is popular and makes money from advertising, is not ‘purposeful availment’ under precedent rule: the publication has to intentionally enter the forum market: the MAil’s influence in the US is on a national (federal) basis.

Note to class: compare the court’s approach with that of European courts under the Brussels I Recast Regulation.

Mrs Trump has now refiled in New York, where both her and second defendant are resident.

Geert.

 

I thought it might be worth to draw your attention to a couple of interesting papers that I came across on SSRN recently (without any claim of completeness):

On Brexit and Private International Law:

• Matthias Lehmann & Nihal Dsouza (University of Bonn), What Brexit Means for the Interpretation and Drafting of Financial Contracts
• John Armour (University of Oxford), Holger Fleischer (MPI Hamburg), Vanessa Jane Knapp (Queen Mary University of London) & Martin Winner (Vienna University of Economics and Business), Brexit and Corporate Citizenship
• Mukarrum Ahmed (Lancaster University) & Paul R. Beaumont (University of Aberdeen), Exclusive Choice of Court Agreements: Some Issues on the Hague Convention on Choice of Court Agreements and its Relationship with the Brussels I Recast Especially Anti-Suit Injunctions, Concurrent Proceedings and the Implications of Brexit 
• Mukarrum Ahmed (Lancaster University), Brexit and English Jurisdiction Agreements: The Post-Referendum Legal Landscape

On EU Private International Law:

• Jean-Sylvestre Bergé (Université de Lyon), The Gap between Legal Disciplines, Blind Spot of the Research in Law: Remarks on the Operation of Private International Law in the EU Context
• Evangelos Vassilakakis (Aristotle University of Thessaloniki), The Choice of the Law Applicable to the Succession under Regulation 650/2012 – An Outline
• Laura van Bochove (Leiden University), Purely Economic Loss in Conflict of Laws: The Case of Tortious Interference with Contract
• Ilaria Pretelli (Swiss Institute of Comparative Law), Exclusive and Discretionary Heads of Jurisdiction for Third States and Lugano States: The Way Forward
• Ugljesa Grusic (Faculty of Laws, University College London), Long-Term Business Relationships and Implicit Contracts in European Private Law
• Matthias Haentjens & Dorine Verheij (Leiden University), Finding Nemo: Locating Financial Losses after Kolassa/Barclays Bank and Profit
• Remus Titiriga (INHA University), Revival of Rabel’s Trans-National Characterization for Rules of Conflict? Some Answers in a European Convention
• Berk Demirkol (University of Galatasaray), Droit Applicable aux Contrats de Construction (Law Applicable to Construction Contracts)

On non-EU Private International Law:

• Patrick Borchers (Creighton University School of Law), Is the Supreme Court Really Going to Regulate Choice of Law Involving States?
• Akawat Laowonsiri (Thammasat University ), Conflict of Genders in Conflict of Laws: Unresolved Problems in Thailand and Elsewhere
• Ralf Michaels (Duke University School of Law) The Conflicts Restatement and the World
• Jinxin Dong (China University of Petroleum), On the Internationally Mandatory Rules of the PRC
• Hannah L. Buxbaum (Indiana University Bloomington Maurer School of Law), Transnational Legal Ordering and Regulatory Conflict: Lessons from the Regulation of Cross-Border Derivatives
• Patrick Borchers (Creighton University School of Law), An Essay on Predictability in Choice-of-Law Doctrine and Implications for a Third Conflicts Restatement
• John F. Coyle (University of North Carolina School of Law), The Canons of Construction for Choice-of-Law Clauses   

International Arbitration

• Csongor István Nagy (University of Szeged), Central European Perspectives on Investor-State Arbitration: Practical Experiences and Theoretical Concerns
• Evangelos Kyveris (University College London), An In-Depth Analysis on the Conflicting Decisions in Dallah v. Pakistan: Same Law, Same Principles, Different Decisions 

The UK’s withdrawal from the EU will precipitate important change in international family law. EU law has increasingly come to define key aspects of both jurisdiction and recognition & enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation.

Child & Family Law Quarterly and Cambridge Family Law will, therefore, host a joint seminar on 27 March 2017. International experts and practitioners will discuss the impacts of ‘Brexit’ on family law, from a range of national and European perspectives, and reflect on the future of international family law practice in the UK.

Academic speakers include:

• Nigel Lowe, University of Cardiff
• Anatol Dutta, University of Regensburg, Germany
• Paul Beaumont, University of Aberdeen
• Helen Stalford, University of Liverpool
• Janeen Carruthers, University of Glasgow
• Ruth Lamont, University of Manchester
• Elizabeth Crawford, University of Glasgow

Panel discussion participants include

• Rebecca Bailey-Harris, 1 Hare Court
• David Hodson, International Family Law Group
• Rachael Kelsey, Sheehan Kelsey Oswald, Edinburgh
• Gavin Smith, 1 Hare Court

Conference registration fees:

• £ 150 for practitioners
• £ 100 for academics/Civil Servants/NGO
• £ 25 for students

For more details, registration, accommodation and dinner tickets: www.fambrexit.law.cam.ac.uk/

 

Just published by Routledge, the book Human Rights in Business: Removal of Barriers to Access to Justice in the European Union presensts the final results of the project which received a 2013 Civil Justice Action Grant from the European Commission Directorate General for Justice. The book is edited by Juan José Álvarez Álvarez Rubio and Katerina Yiannibas and includes a long list of reknown contributors from academia, legal practice and civil society. The begining of the official description from the book reads:

The capacity to abuse, or in general affect the enjoyment of human, labour and environmental rights has risen with the increased social and economic power that multinational companies wield in the global economy. At the same time, it appears that it is difficult to regulate the activities of multinational companies in such a way that they conform to international human, labour and environmental rights standards. This has partially to do with the organization of companies into groups of separate legal persons, incorporated in different states, as well as with the complexity of the corporate supply chain. Absent a business and human rights treaty, a more coherent legal and policy approach is required.

It is available for free download as an eBook:

– To download from the book’s page on the Routledge website, choose “Other eBook Options” button for download options.
– To download the free ebook from Amazon, click here.
– To download the free ebook from iTunes, click here.