Droit international général

On Friday 10 June (15h-18:30h) and Saturday 11 June (9:30h-13h) 2016, a seminar will take place in Munich, Germany (Rechtsanwaltskammer München, Tal 33), devoted to Regulation (EU) no. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The seminar will consist of a two-day training course for lawyers, who will be called to present, discuss and resolve practical cases falling within the scope of Regulation n. 1215/2012. The speakers will include Prof. Dr. Wolfgang Hau, Prof. Dr. Dennis Solomon, Dr. Andreas Köhler, and Dr. Claudia Mayer (all University of Passau). The language of the seminar is German.

The participation is free of charge, but requires prior registration by sending an e-mail, no later than 25 May 2016, to the following address: seminare@rak-m.de and including “Wochenendseminar” in the object. The event is open up to a maximum of 30 participants.

For more information see here.

Il 20 maggio 2016, l’Università La Sapienza di Roma ospiterà un incontro dedicato al tema del cognome materno, nella prospettiva italiana in materia di attribuzione e di modifica del cognome ai figli, nonché nella prospettiva comparata, internazionale e dell’Unione europea.

Fabrizio Marongiu Buonaiuti (Univ. Macerata) presenterà una relazione dedicata al cognome dei figli nel diritto internazionale privato.

Maggiori informazioni sono disponibili qui.

The University of Milan will host on 23 May 2016 a conference on “New Families – International Trends and Legal Recognition in Italy“. The event will be structured in three parts: the first two sessions will look into changing family patterns in Europe and the US, respectively, while in the third one a round table will focus on legal recognition in Italy of new families.

Here’s the programme (available as a .pdf file):

9.00 Welcoming addresses

• Gianluca Vago (Rector, University of Milan)
• Maria Elisa D’Amico (University of Milan)
• Ilaria Viarengo (University of Milan)

9.30: I Session –  Changing family patterns: European Trends

• Chair: Stefania Bariatti (University of Milan)
• Katharina Boele-Woelki (Bucerius Law School, Hamburg): New families: fundamental issues
• Angelika Fuchs (ERA, Academy of European Law): Registered partnerships: crossing borders
• Patrizia De Luca (DG Justice, Civil Justice Policy Unit): The EU proposal on the property consequences of registered partnerships

11.15: II Session – Changing family patterns: USA Trends

• Suzanne Goldberg (Columbia University): Transforming Family Law in the United States: Multidimensional Advocacy and Social Change.
• Yasmine Ergas (Columbia University): From marriage to gender: pathways to equality

14.30: III Session – Round table on “New families: Legal Recognition in Italy”

• Monica Cirinnà (Italian Senate, Rapporteur of the proposed regulation of civil unions in Italy)
• Ivan Scalfarotto (Italian Chamber of Deputies, Vice-minister of economic development)
• Annibale Marini (President Emeritus of the Italian Constitutional Court)
• Marilisa D’Amico (University of Milan)
• Ilaria Viarengo (University of Milan)

17.30: Closing remarks

• Stefania Bariatti (University of Milan)

(Many thanks to Prof Ilaria Viarengo for the tip-off)

Prende avvio il 10 e 11 giugno 2016, a Lucca, un ciclo di incontri formativi organizzati nell’ambito del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice, cofinanziato dalla Commissione europea e gestito dalle Università  di Torino, Passau e Complutense di Madrid, con il concorso di vari partner accademici e professionali, sotto il coordinamento di Elena D’Alessandro (Univ. Torino).

Il progetto è volto alla formazione degli avvocati degli Stati membri attraverso incontri gratuiti e di taglio pratico aventi ad oggetto il regolamento n. 1215/2012 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I bis) e la sua interazione con il regolamento n. 805/2004 che istituisce un titolo esecutivo europeo per i crediti non contestati e con il regolamento n. 655/2014 che istituisce una procedura per l’ordinanza europea di sequestro conservativo su conti bancari al fine di facilitare il recupero transfrontaliero dei crediti in materia civile e commerciale.

[Dal sito del progetto] – Objectives: The 2014 EU Justice Scoreboard has revealed that the level of efficiency in national justice systems varies significantly between Member States. While some Member States show good performances in the civil justice area, others perform poorly. One of the reasons for this status quo concerns how national lawyers perform, especially using national and EU legal instruments in civil and commercial matters. The present project aims to bridge this gap by building a partnership between Universities and Bar Associations located in three poorly-performing Member States (Italy, Slovenia and Spain), and one which performs well (Germany). The main objective of this partnership will be that of providing lawyers transnational, practice-oriented, interactive and multi-lingual training on EU legal instruments free of charge, in particular on Regulation No 1215/2012 including its interplay with Regulation No 805/2004 concerning the European Enforcement Order and Regulation No 655/2014 establishing a European Account Preservation Order. Activities: The main activity of the present project will be a series of initial training weekend seminars offered free of charge in more than one official EU language to small target groups of lawyers, domiciled in the Member States involved in the programme. According to the results gained by the pilot project on European Judicial Training conducted by the Councils of Bars and Law Societies of Europe and the EIPA Luxembourg, the adopted approach will be practice-oriented. The training will be offered by teaching teams of academics and practitioners, combining theoretical knowledge and practical skills, as recommended by the EU Communication COM (2011) 551 final. This method will ensure a smooth transition between acquisition of theoretical elements and building skills with a practical application in real national and cross-border working cases.

L’evento iniziale per l’Italia, in programma, come detto nei giorni 10 e 11 giugno 2016 a Lucca, consisterà in un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti rientranti nell’ambito di applicazione del regolamento Bruxelles I bis. La prima giornata sarà dedicata ai criteri di giurisdizione e agli accordi di attribuzione della competenza giurisdizionale, mentre nel secondo giorno si parlerà di litispendenza e di riconoscimento ed esecuzione delle decisioni.

I lavori saranno presieduti da Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Antonio Mondini (magistrato del Tribunale di Lucca) e Giampaolo Benedetti Pearson (avvocato del Foro di Lucca).

La partecipazione al seminario è gratuita e prevede la distribuzione di materiali didattici e l’attribuzione di 8 crediti formativi per gli avvocati. La richiesta di iscrizione deve essere inviata tramite e-mail all’indirizzo info@europeancivilprocedureforlawyers.eu non oltre il 6 giugno 2016 (saranno accettati fino ad un massimo di 30 partecipanti).

Ulteriori informazioni sono disponibili qui.

On 23 May 2016, the University of Milan will host a conference entitled New families – International trends and legal recognition in Italy, chaired by Stefania Bariatti (Univ. Milan).

There will be three sessions. The first two sessions will be devoted to the evolution of family patterns in Europe and the US, respectively. Speakers include Katharina Boele-Woelki (Bucerius Law School, Hamburg), Angelika Fuchs (ERA – Academy of European Law), Patrizia De Luca (European Commission), Suzanne Goldberg and Yasmine Ergas (both Columbia University).

The last session will focus on the legal recognition of new families in Italy. Participants include Monica Cirinnà (Member of the Italian Senate – Rapporteur of the proposed regulation of civil unions in Italy), Ivan Scalfarotto (Member of the Italian Chamber of Deputies), Annibale Marini (Italian Constitutional Court), Marilisa D’Amico and Ilaria Viarengo (both Univ. Milan).

More information available here.

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

P. Huber, The Hague Convention on Choice of Court Agreements
The article presents the Hague Convention of 30 June 2015 on Choice of Court Agreements which entered into force on October 1st, 2015.

R. Schaub, International Protection of Adults: Powers of Representation
The article deals with the conflict of laws rules concerning the powers of representation granted by an adult to be exercised when the adult is no longer in a position to protect his or her interests. Especially the relevant rules of the Hague Convention on the international protection of adults are explained and analyzed, starting from the perspective of German courts or administrative authorities, with a special focus on the options of choosing the applicable law and making the necessary provisions with regard to the applicable law.

Th. Rauscher, Ancillary Jurisdiction in Child Maintenance Cases
In the judgment in comment the ECJ decided on conflicting ancillary jurisdiction concerning child maintenance. Ancillary jurisdiction under Article 3 of Regulation (EC) No 4/2009 should lie only in the courts exercising jurisdiction on parental responsibility (Article 3 (d)). The courts where a divorce case between the parents of the child was pending should not exercise ancillary jurisdiction under Article 3 (c) even if under the local law of the court such ancillary jurisdiction was given. As against this opinion, ancillary jurisdiction under Article 3 of said regulation should be determined only by reference to national rules of civil procedure as Article 3 (d) would not grant ancillary jurisdiction if not provided by national rules of civil procedure. Conflicting jurisdiction should be decided only under Articles 12, 13 and a court in one Member State should not be under an obligation to examine jurisdiction of other Member State’s courts.

A. Piekenbrock, The application of Art. 13 EIR in practice
As far as avoidance in insolvency proceedings is concerned, Art. 13 EIR provides for an exception from the basic rule laid down in Art. 4 (2)(m) EIR. Generally, the law of the State of the opening of proceedings, the lex fori concursus, is also applicable to the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors. Yet, the defendant may, to his own protection, invoke that the applicable law of another Member State does not allow any means of challenging that act in the relevant case. In 2015, the ECJ had to deal with the interpretation of the aforementioned exception for the first time. In the German-Austrian Lutz-case the ECJ has held: Art. 13 EIR applies to a situation in which the proceeds realised from a right in rem are attributed to the defendant after the opening of insolvency proceedings; the defendant may invoke that the avoidance action is time barred; the lex causae also applies to the interruption of the limitation period. In the Finish-Dutch Nike-case the ECJ has held that Art. 13 EIR only applies if the defendant can prove that under the circumstances of the case the detrimental act cannot be challenged neither under the insolvency law nor under the general provisions and principles of the lex causae. The paper analyses the Court’s rulings.

W. Hau, Jurisdiction based on defendant’s property located in Germany
Under the traditional rules, German courts claim jurisdiction for actions against defendants who are domiciled outside the EU but own property in Germany (sec. 23 Code of Civil Procedure). In this context, a recent decision of the Higher Regional Court of Munich raises interesting questions: Is it required that the assets are located in Germany at the beginning and/or at the end of the proceedings? Is it relevant that the value of the property is out of proportion to the value in litigation? Must the defendant’s property be undisputed? And can even future assets suffice?

G. Schulze, You’ll never walk alone? Infringement of EU law and the duty of using the legal remedies pursuant to Art. 34 N. 1 Reg. 44 / 2001
The Dutch Hoge Raad in Diageo Brands BV v. Simiramida-04 EOOD has referred the question concerning the interpretation of public policy in Art. 34 N. 1 of the Brussels I-Regulation to the European Court of Justice for a Preliminary Ruling according to Art. 267 TFEU. The court confirms that EU law is also part of the national conception which determines the content of public policy. In such a case the limits will be controlled by the ECJ as well as the substantive content of public policy. The court states that an error in the application of EU trademark law does not suffice to justify a refusal of recognition. The ECJ remembers the fundamental idea that individuals are required to use all the legal remedies made available by the law of the Member State of origin. That rule is all the more justified where the alleged breach of public policy stems, as in the main proceedings, from an alleged infringement of EU law. It should be noted that the ECJ does not answer the question under which specific circumstances it is too difficult or impossible to make use of the legal remedies in the Member State of origin. All that is left to Diageo is an action in damages against Bulgaria.

S. Mock, Qualification of Insolvency-Based Instruments of Creditor Protection in Corporate Law
In the last few years, the European Court of Justice (ECJ) changed the fundaments of European company law dramatically due to its interpretation of the Freedom of Establishment (Art. 49, 54 Treaty on the Functioning of the European Union). Since the Centros, Überseering and Inspire Art decisions of the ECJ European corporations enjoy a general mobility especially allowing them to transfer their real seat to another Member States without a change of the applicable corporate law. However, this shift from the real seat to the incorporation theory in the international corporate law of the Member States is not reflected by European insolvency law under which the applicable law is generally determined by the center of main interest (Art. 3 f. European Insolvency Regulation) and therefore often by the real seat of the corporation. This difference becomes especially relevant in the context of insolvency-based instruments of creditor protection in corporate law since these instruments cannot be completely allocated to corporate or to insolvency law. In its decision of December 10, 2015 (C-594/14) the ECJ had to deal with such an insolvency-based instrument of creditor protection in German corporate law and considered it as insolvency law according to Art. 4 European Insolvency Regulation. The following article analyses this decision and shows that the insolvency-based instruments of creditor protection in corporate law generally – in contrast to the decision of the ECJ – have to be considered as part of corporate and not of insolvency law.

M. Andrae, Enforcement of a Polish maintenance obligation decision against a debtor who is living in Paraguay
The Oberlandesgericht (Higher Regional Court) Nürnberg had to decide on the appeal of the debtor against the declaration of enforceability of two Polish maintenance obligation decisions. The following legal issues were to be discussed and are treated in this note. In which cases is a judgment that was given in a Member State since 18 June 2011 subject to the declaration of enforceability under Chapter IV Section 2 of Regulation (EC) No 4/2009 of 18 December 2008 (EuUnterhVO)? Which evidentiary value does a report prepared by the court of origin using the form in Annex II EuUnterhVO have? Is the child a creditor in the process of enforcement if the decision for child maintenance has been issued in the parents’ matrimonial proceedings? In what period should an appeal be lodged in accordance with Article 32 (5) Regulation (EC) No 4/2009 of 18 December 2008 if the party against whom enforcement is sought has its habitual residence in a third country? What is the correct interpretation of the rule in Article 24 (b) Regulation (EC) No 4/2009 of 18 December 2008 according to which there is not a ground for refusing recognition insofar as the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so.

G. Hohloch, Court Orders Refusing the Return of the Child Abducted in Spite of “Certificate of Wrongfulness” (Hague’ Convention Articles 3, 12, 13, 15)
The main object of the Hague Convention on the Civil Aspects of International Child Abduction is “to secure the prompt return of children wrongfully removed or retained in any Contracting State”. Wrongfulness of removal or retention (Article 3 of the Convention) can be certified to the authorities in the sense of Articles 12 and 13 of the Convention by presentation of a “decision or other determination that the removal or retention was wrongful” (“certificate of wrongfulness”) in accordance with Article 15 of the Convention. The Supreme Court of Austria now confirms the existence of such a “certificate of wrongfulness” in Austrian law. According to the new decision in Austria the “Central Authority” and not any court has the competence to make out such “certificates”. The essay shows the consequences for cases of international abduction relating to Austria and also deals with the limited importance of such “certificates of wrongfulness” when – e.g. in the case of the Court of Hamburg – the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (Article 13 subs. 2 of the Convention).

F. Wedemann, Undisclosed partnerships (between spouses), allotments relating to marriage and family cooperation contracts in the conflict of laws
The German Federal Court of Justice (BGH) has held that implicitly negotiated undisclosed partnerships between spouses – a peculiarity of German law developed by the courts in order to mitigate unfair outcomes resulting from matrimonial property law – are to be characterised as a contractual matter for conflict of laws purposes. The author agrees in principle with this characterisation of undisclosed partnerships provided these are marked by the following two features: (1) nonparticipation of the partnership in legal relations, (2) absence of joint property. However, she argues that implicitly negotiated undisclosed partnerships between spouses should be characterised as a matter of international matrimonial property law. The same goes for two other peculiarities of German law: allotments relating to marriage as well as family cooperation contracts between spouses. Finally, the author deals with the characterisation of the three legal institutions – implicitly negotiated undisclosed partnerships, allotments relating to cohabitation and cooperation contracts – in cases of extra-marital cohabitation. The characterization depends on the handling of extra-marital cohabitation in international private law. If one accepts a special conflict rule for property matters of cohabitees, the three institutions should be governed by this rule. If one rejects such a rule and instead characterises the relations between cohabitees as a matter of international contract law, they are to be characterised as a contractual matter.

J. Samtleben, A New Codification of Private International Law in Argentina
A new “Civil and Commercial Code” containing a codification of private international law is in force in Argentina from 1 August 2015. The ambitious efforts, which persisted for a long time in Argentina, to create a distinct law for private international law have been replaced by the more practical attempt to regulate this area of law within the new Civil Code. This has substantial implications, as for instance the enforcement of foreign judgments is not regulated in the new codification. On the other hand, it contains not only provisions on the applicable law, but also on international jurisdiction. This topic is regulated in a general way in a separate chapter, but also in detail combined with the articles on the applicable law as concerns the individual fora. While the old Civil Code had only scattered provisions on conflict of laws, the new regulation is aimed at systematizing and modernizing this area of law within a cohesive text, considering the doctrine and jurisprudence in Argentina together with comparative law and international conventions.

Percorsi di diritto societario europeo, a cura di Elisabetta Pederzini, Giappichelli, 2016, pp. XVI-372, ISBN: 9788892102521, Euro 35.

[Indice sommario] Parte Prima: Diritto Societario Italiano e Diritto dell’Unione Europea. – Alla ricerca del diritto applicabile: società italiane e società straniere (E. Pederzini). – L’armonizzazione nel diritto delle società: evoluzione e prospettive (M. Rondinelli). – La libertà di stabilimento delle società europee nell’interpretazione evolutiva della Corte di Giustizia. Armonizzazione e concorrenza tra ordinamenti nazionali (E. Pederzini). – Armonizzazione, concorrenza e convergenza tra ordinamenti: evidenze dal diritto delle società a responsabilità limitata in Europa e in Italia (A. Bartolacelli). – Parte Seconda: Diritto Europeo delle Imprese. – La Società Europea e la Società Cooperativa Europea (M. Bianca – A. Zanardo). – Il progetto di Societas Unius Personae (Single Member Private Limited Liability Company) (R. Guidotti). – Il Gruppo Europeo di Interesse Economico (GEIE) (A. Bartolacelli). – Parte Terza: Circolazione dei Modelli di Governo Societario. – Il sistema di amministrazione e controllo nella società per azioni tedesca (M. Rondinelli). – Gran Bretagna e Stati Uniti: il sistema di amministrazione e controllo delle companies e delle corporations (G. Riolfo).

Maggiori informazioni sono disponibili a questo indirizzo.

I have reported earlier on the 2015 Belgian Act tackling the enforcement of vulture fund litigation. In preparation of a paper on the topic, I have had to translate the (relevant parts of: I have omitted intro- and extroductory parts) the Act. I thought I might as well share. Source reference would be much appreciated if you do employ the translation below.

Geert.

Article 2

When a creditor pursues an unfair benefit by purchasing Government bonds or receivables, his rights vis-à-vis the debtor State are limited to the price paid for the bonds or receivables.

Regardless of the law governing the legal relationship between the creditor and the debtor State, no enforcement title can be obtained in Belgium and no protective or enforcement measure can be taken in Belgium at the request of such creditor in connection with a payment to be received in Belgium if such payment procures an unfair benefit vis-à-vis the creditor.

Pursuing an unfair benefit exists where there is clear disproportion between the purchase price and the bonds or securities’ face value, or between the purchase price of the bonds and the sums actually claimed by the creditor.

Such clear disproportion  must be supplemented by at least one of the following criteria for it to qualify as an unfair benefit:

–         Bankruptcy or suspension of payments of /by the debtor State was established, or imminent, when the bonds or receivables were purchased;

–         The creditor has its seat in a State or territory which

a)       Either is included in the list of uncooperative States and territories as established by the Financial Action Task Force (FATF); or

b)       Meets with the definition of tax haven established per Article 307, para 1, fifth indent of the Income Tax Act 1992; or

c)       Is included in a Government list of States unwilling to negotiate an agreement which in accordance with relevant OECD standards, provides as of 2015 for the automatic exchange of data with Belgium on fiscal and banking matters;

–         The creditor systematically employs litigation to obtain reimbursement of the bonds previously purchased;

–         The creditor has refused to co-operate with the establishment restructuring measures for the debtor State;

–         The creditor has abused the debtor State’s weakened position so to negotiate a clearly imbalanced repayment agreement; or

–         Repayment in full of the sums claimed by the creditor would have a clearly establishable negative impact on the public finances of the debtor State and could endanger the socioeconomic development of its population.

Art.3

This Act does not affect the application of international Treaties, the law of the European Union, or bilateral Treaties.

On 2 and 3 June 2016, the Academy of European Law (ERA) will host a workshop in Trier aimed to discuss case-studies and permit exchange of experience on the EU Succession Regulation.

[From the website of the Academy] – The new EU Succession Regulation (EU) No 650/2012, which aims to ameliorate and simplify international inheritance rules, is applicable since 17 August 2015. Due to various uncertainties it still provides for new challenges in cross-border estate planning.  After nearly one year of experience with the Regulation, this seminar will discuss key practical problems for cross-border estates on the basis of real cases and case-studies. Active participation of the participants will be encouraged through a workshop format.

Speakers include Ulf Bergquist (Bergquist & Partners), Astrid Deixler-Hübner (University of Linz), Richard Frimston (Russell-Cooke), Jens Kleinschmidt (University of Trier), Martin Schauer (University of Vienna) and Patrick Wautelet (University of Liège).

See here for further information.

On 20 April 2016, an agreement in principle has been reached within the Permanent Representatives Committee of the Council of the European Union as to the approval of the proposal for a Council Decision — illustrated in this post — authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, and the transmission of the proposal, as approved, to the European Parliament for consent under Article 329 of the Treaty on the Functioning of the European Union.

The following Member States have made known their intention to take part in the enhanced cooperation: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden.

L’Università Roma Tre ospita, tra il 2 e il 9 maggio 2016, una serie di incontri dedicati a temi di diritto internazionale privato.

Interverranno, fra gli altri, Javier Carrascosa González (Univ. Murcia), Francesco Salerno (Univ. Ferrara) e Carlo De Stefano (Univ. Bocconi).

Gli incontri, inaugurati in realtà da una lezione di Francesca Pietrangeli (Foro di Roma) tenutasi nelle settimane precedenti, toccano un’ampia varietà di temi, dalla responsabilità per fatto illecito ai contratti, dal divorzio alle successioni mortis causa, dal riconoscimento degli status personali acquisiti all’estero al coordinamento fra giurisdizione e arbitrato.

Maggiori informazioni sono disponibili a questo indirizzo.

On 17 March 2016, the Council on General Affairs and Policy of the Hague Conference on Private International Law decided to set up a Special Commission to prepare a draft Convention on the recognition and enforcement of foreign judgments (the Hague Judgments Convention), while endorsing the recommendation of the Working Group on the Judgments Project that matters relating to direct jurisdiction should be put for consideration to the Experts’ Group of the Judgments Project soon after the Special Commission has drawn up a draft Convention.

The Special Commission will meet in the Hague between 1 and 9 June 2016 to discuss the proposed draft text drawn up by the Working Group. The text may be found here, accompanied by an explanatory note prepared by the Permanent Bureau.

As stated in Article 1 of the proposed draft text, the Convention is meant to apply to the recognition and enforcement of judgments “relating to civil and commercial matters”, at the exclusion of matters in the field of family law, the law of persons and successions. Insolvency, the carriage of passengers and goods, marine pollution, liability for nuclear damage and defamation are equally featured in the list of excluded matters.

Article 4(1) provides that a judgment given by a court of a Contracting State must be recognised and enforced in another Contracting State in accordance with the Convention. Recognition and enforcement may be refused only on the grounds specified in the Convention itself.

As a rule, a judgment is eligible for recognition and enforcement if one of the bases listed in Article 5 of the proposed draft text is met, ie, if jurisdiction was asserted in the country of origin in conformity with one of the grounds of jurisdiction contemplated by the Convention.

Suitable grounds include the habitual residence of the defendant (to be understood as meaning, pursuant to Article 3(2), the place where the defendant has its statutory seat, or under whose law it was incorporated, or where it has its central administration or principal place of business), and the defendant’s consent to the jurisdiction of the seised court as expressed in the course of the proceedings.

According to the proposed draft text, a judgment is also eligible for recognition, inter alia: if it ruled on a contractual obligation “and was given in the State in which performance of that obligation took place or should take place under the parties’ agreement or under the law applicable to the contract, unless the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”; if it ruled on a non-contractual obligation arising from personal injury or damage to tangible property, “and the act or omission directly causing such harm occurred in the State of origin, irrespective of where that harm occurred”; if the judgment ruled on an infringement of a patent, trademark, design or other IP right required to be deposited or registered, “and it was given by a court in the State in which the deposit or registration of the right concerned has taken place”; if the judgment ruled on the validity or infringement of copyright or related rights “and the right arose under the law of the State of origin”.

By derogation from Article 5, the proposed draft text sets forth in Article 6 some exclusive bases for recognition and enforcement. In particular, a judgment that ruled on the registration or validity of patents, trademarks, designs, or other similar rights required to be deposited or registered “shall be recognised and enforced if and only if the State of origin is the State in which deposit or registration has been applied for, has taken place, or is deemed to have been applied for or to have taken place under the terms of an international or regional instrument”, while a judgment that ruled on rights in rem in immovable property or tenancies of immovable property for a period of more than six months “shall be recognised and enforced if and only if the property is situated in the State of origin”.

The grounds on which a judgment eligible for recognition and enforcement may nevertheless be denied recognition or enforcement in a Contracting State are enumerated in Article 7.

Specifically, recognition and enforcement may be denied if the document which instituted the proceedings was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence or “was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents”; if the judgment “was obtained by fraud in connection with a matter of procedure”; if recognition or enforcement would be manifestly incompatible with the public policy of the requested State”; if the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfills the conditions necessary for its recognition in the requested State.

Pursuant to Article 9 of the proposed draft text, recognition or enforcement may also be refused “if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered”.

Article 11 lays down the list of documents to be produced by the party seeking recognition or applying for enforcement of a foreign judgment under the Convention, while Article 12 clarifies that the procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless the Convention provides otherwise.

On 17 March 2016, the Council on General Affairs and Policy of the Hague Conference on Private International Law decided to set up a Special Commission to prepare a draft Convention on the recognition and enforcement of foreign judgments (the Hague Judgments Convention), while endorsing the recommendation of the Working Group on the Judgments Project that matters relating to direct jurisdiction should be put for consideration to the Experts’ Group of the Judgments Project soon after the Special Commission has drawn up a draft Convention.

The Special Commission will meet in the Hague between 1 and 9 June 2016 to discuss the proposed draft text drawn up by the Working Group. The text may be found here, accompanied by an explanatory note prepared by the Permanent Bureau.

As stated in Article 1 of the proposed draft text, the Convention is meant to apply to the recognition and enforcement of judgments “relating to civil and commercial matters”, at the exclusion of matters in the field of family law, the law of persons and successions. Insolvency, the carriage of passengers and goods, marine pollution, liability for nuclear damage and defamation are equally featured in the list of excluded matters.

Article 4(1) provides that a judgment given by a court of a Contracting State must be recognised and enforced in another Contracting State in accordance with the Convention. Recognition and enforcement may be refused only on the grounds specified in the Convention itself.

As a rule, a judgment is eligible for recognition and enforcement if one of the bases listed in Article 5 of the proposed draft text is met, ie, if jurisdiction was asserted in the country of origin in conformity with one of the grounds of jurisdiction contemplated by the Convention.

Suitable grounds include the habitual residence of the defendant (to be understood as meaning, pursuant to Article 3(2), the place where the defendant has its statutory seat, or under whose law it was incorporated, or where it has its central administration or principal place of business), and the defendant’s consent to the jurisdiction of the seised court as expressed in the course of the proceedings.

According to the proposed draft text, a judgment is also eligible for recognition, inter alia: if it ruled on a contractual obligation “and was given in the State in which performance of that obligation took place or should take place under the parties’ agreement or under the law applicable to the contract, unless the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”; if it ruled on a non-contractual obligation arising from personal injury or damage to tangible property, “and the act or omission directly causing such harm occurred in the State of origin, irrespective of where that harm occurred”; if the judgment ruled on an infringement of a patent, trademark, design or other IP right required to be deposited or registered, “and it was given by a court in the State in which the deposit or registration of the right concerned has taken place”; if the judgment ruled on the validity or infringement of copyright or related rights “and the right arose under the law of the State of origin”.

By derogation from Article 5, the proposed draft text sets forth in Article 6 some exclusive bases for recognition and enforcement. In particular, a judgment that ruled on the registration or validity of patents, trademarks, designs, or other similar rights required to be deposited or registered “shall be recognised and enforced if and only if the State of origin is the State in which deposit or registration has been applied for, has taken place, or is deemed to have been applied for or to have taken place under the terms of an international or regional instrument”, while a judgment that ruled on rights in rem in immovable property or tenancies of immovable property for a period of more than six months “shall be recognised and enforced if and only if the property is situated in the State of origin”.

The grounds on which a judgment eligible for recognition and enforcement may nevertheless be denied recognition or enforcement in a Contracting State are enumerated in Article 7.

Specifically, recognition and enforcement may be denied if the document which instituted the proceedings was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence or “was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents”; if the judgment “was obtained by fraud in connection with a matter of procedure”; if recognition or enforcement would be manifestly incompatible with the public policy of the requested State”; if the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfills the conditions necessary for its recognition in the requested State.

Pursuant to Article 9 of the proposed draft text, recognition or enforcement may also be refused “if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered”.

Article 11 lays down the list of documents to be produced by the party seeking recognition or applying for enforcement of a foreign judgment under the Convention, while Article 12 clarifies that the procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless the Convention provides otherwise.

La riforma del regolamento Bruxelles I. Il regolamento (UE) n. 1215/2012 sulla giurisdizione e l’efficacia delle decisioni in materia civile e commerciale, a cura di A. Malatesta, con la collaborazione di G. Vitellino e N. Nisi, Giuffrè, 2016, ISBN: 9788814212451, pp. 238, Euro 20.

[Dal sito dell’editore] – Il volume analizza le novità introdotte dal regolamento (UE) n. 1215/2012 del 12 dicembre 2012 (c.d. «Bruxelles I-bis»), alla disciplina concernente la competenza giurisdizionale e il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale. Dal 10 gennaio 2015 esso sostituisce il precedente regolamento (CE) n. 44/2001 del 22 dicembre 2000, il quale a sua volta era succeduto, “comunitarizzandola”, alla convenzione di Bruxelles del 1968, oggetto come noto ormai da oltre quarant’anni di applicazione nella prassi giudiziaria italiana. Il nuovo testo modifica in alcuni punti anche sensibilmente – si pensi solo all’abolizione dell’exequatur – la precedente normativa. Gli Autori si soffermano sugli aspetti di maggiore interesse per l’operatore giuridico italiano coinvolto in liti di carattere internazionale. Il volume è corredato da un’appendice completa e ragionata e da informazioni non immediatamente accessibili agli utenti.

L’indice dell’opera può essere consultato qui. Maggiori informazioni a questo indirizzo.

A joint conference of the Max Planck Institute for Procedural Law (Luxembourg) and the British Institute for International and Comparative Law will be held on May 26th in London, within the framework of a series of BIICL events on the Brexit.

This particular seminar will look at the potential impact of a Brexit on cross-border commercial dispute resolution and on the role of London as a center for international litigation and arbitration. Speakers will address selected questions such as the legal framework for the transitional period; the validity of choice of court agreements and future frequency of choice of court agreements in favour of English courts; the different approaches in England and under the Brussels I Recast as to parallel proceedings; the cross-border circulation of titles; the Swiss position as to commercial dispute resolution between Member States and third States. A roundtable discussion will place a particular focus on London’s future as a centre for commercial dispute resolution post Brexit.

Speakers:

• Burkhard Hess, Max Planck Institute Luxembourg
• Richard Fentiman, University of Cambridge
• Andrew Dickinson, University of Oxford
• Marta Requejo Isidro, Max Planck Institute Luxembourg/University of Santiago de Compostela
• Trevor Hartley, London School of Economics
• Alexander Layton QC, 20 Essex Street
• Tanja Domej, University of Zurich
• Thomas Pfeiffer, University of Heidelberg
• Paul Oberhammer, University of Vienna
• Adam Johnson, Herbert Smith Freehills
• Martin Howe QC, 8 New Square
• Karen Birch, Allen and Overy
• Diana Wallis, President of the European Law Institute and former Vice-President of the European Parliament
• Deba Das, Freshfields Bruckhaus Deringer LLP

Time: 15:30-19:00 (followed by a drinks reception)

Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

The program is available here; for registration click here.

On 3 May 2016, Neža Pogorelčnik Vogrinc (Univ. Ljubljana) will speak of Provisional measures in European civil procedural law in the framework of a workshop at the Rovigo branch of the Department of Law of the University of Ferrara.

Attendance is free. See here for more details.

Il 27 maggio 2016, l’Università  di Milano ospita un seminario dal titolo Cross-border litigation in Europe: Private International Law legislative framework, national courts and the Court of Justice of the European Union, nell’ambito del quale saranno presentati i risultati di una ricerca sull’applicazione in Italia dei regolamenti dell’Unione europea in materia di diritto internazionale privato e processuale realizzata nel quadro del progetto EUPILLAR.

Nel corso dei lavori, coordinati da Stefania Bariatti (Univ. Milano), interverranno, tra gli altri, Francesca Villata, Ilaria Viarengo, Jacopo Re, Filippo Marchetti e Sara Bernasconi (tutti Univ. Milano), Francesco Salerno (Univ. Ferrara), Peter Kindler (Univ. Ludwig-Maximilians-Universität München), Cristina Campiglio (Univ. Pavia), Maria Caterina Baruffi (Univ. Verona) e Rosario Espinosa Calabuig (Univ. Valencia).

Il programma completo ed ulteriori informazioni sono disponibili qui.

The British Institute of International and Comparative Law, the Open University and the Centre for Small States at Queen Mary University of London are organising a conference on “Integration and Dispute Resolution in Small States”, hosted by Wilmer Cutler Pickering Hale and Dorr LLP on May 19 and 20, 2016. The aim of this 1½ day conference is to bring together academics, representatives of Small States, as well as lawyers litigating in or for Small States (defined as those States with a population of 1.5m or less), to discuss the particular issues these jurisdictions face in regard to international dispute resolution and regional integration. The conference focusses in particular on the commercial relations between large economies and Small States, the role of Small States as financial centres, as well as B2B, Investor-State and State-to-State dispute resolution involving Small States.

View the full programme and register here.

Speakers and Chairs

Gary Born WilmerHale (Keynote speaker); Justice Winston Anderson Caribbean Court of Justice; Agnieszka Ason Technische Universität Berlin; Elizabeth Bakibinga Commonwealth Secretariat; Professor George Barker Australia National University; Dr David S Berry University of the West Indies; James Bridgeman FCIArb; N Jansen Calamita BIICL; Barbara Dohmann QC Blackstone Chambers; Conway Blake Debevoise & Plimpton LLP; Professor Sue Farran University of Northumbria; Stephen Fietta Partner at Fietta; Steven Finizio WilmerHale; Jack Graves Touro College of Law; Françoise L M Hendy Barbados High Commission; Desley Horton WilmerHale; Her Excellency Dr Len Ishmael Ambassador, Embassies of the Eastern Caribbean States; Michel Kallipetis QC Independent Mediators Limited and Quadrant Chambers; Edwini Kessie Office of the Chief Trade Advisor; Alex Layton QC 20 Essex Street; Dr Eva Lein BIICL; Brian McGarry Centre for Diplomacy & International Security, London Centre of International Law Practice; Professor Baldur Þórhallsson University of Iceland, Small States Studies; Lauge Poulsen University College London; Jan Yves Remy Sidley Austin; Dominic Roughton Herbert Smith Freehills LLP; Professor Francesco Schurr University of Liechtenstein; Geoff Sharp Clifton Chambers; Mele Tupou Ministry of Justice; UNCITRAL; Professor Robert G Volterra; Professor Gordon Walker Hamad Bin Khalifa University; Tony Willis Brick Court Chambers

The event is convened by:

Dr Petra Butler, Centre for Small States, Queen Mary University of London; Dr Eva Lein, British Institute of International and Comparative Law; Rhonson Salim, Open University.

L’Associazione Internazionale di Diritto delle Assicurazioni – Sezione Lombarda organizza per il 6 maggio 2016 a Milano un convegno dal titolo Assicurazioni e risarcimento dei danni da illecito transfrontaliero.

Intervengono, fra gli altri, Marco Frigessi di Rattalma (Univ. Brescia), con una relazione su Legge applicabile e giurisdizione in materia di assicurazione e risarcimento dei danni da illeciti transfrontalieri: problemi e prospettive, e Michele Comenale Pinto (Univ. Sassari), su Il sistema di risarcimento dei danni nel trasporto aereo di persone.

La partecipazione al convegno è gratuita, previa registrazione all’indirizzo email aida.meeting@libero.it.

Per maggiori informazioni, compreso il programma completo, si veda qui.

Maria Chiara Marullo and Francisco Javier Zamora Cabot have published a paper on “TRANSNATIONAL HUMAN RIGHTS LITIGATIONS. KIOBEL’S TOUCH AND CONCERN: A TEST UNDER CONSTRUCTION.”

The abstract reads:

In recent years the international debate on Transnational Human Rights Litigation has mainly focused, although not exclusively, on the role of the Alien Tort Claims Act as a way of redress for serious Human Rights violations. This Act has given the possibility of granting a restorative response to victims, in a Country, such as the United States of America, that assumes the defense of an interest of the International Community as a whole: to guarantee the access to justice to the aforesaid victims. The purpose of this article is to analyze the recent and restrictive position on this Act of the Supreme Court of the United States, in the Kiobel case, and especially when, as a means of modulating the limitative doctrine affirmed there, the Touch and Concern test was introduced. It has generated from its very inception a strong discussion amongst international legal scholars and also great repercussions concerning the practice of the U.S. District and Circuit Courts.

The publication can be downloaded here.