Droit international général

The last part of this title is a bit of a stretch, apologies: soundbite beats nuance. I reported earlier on the High Court’s referral to the CJEU in the Cosmetics Regulation case, C-592/14 . The Court held last week, 21 September. Much like in C-366/10, the emissions trading /aviation case, the Court was unimpressed with accusations of extraterritoriality (‘territory’ is not discussed in the judgment) and does not even flag WTO concerns (Bobek AG had, and simply suggested this is an issue that solely lies with the WTO itself to resolve).

Referring to the need to interpret the Regulation with a view to its object and purpose, the Court insists that in particular to avoid easy circumvention of the Regulation, data obtained from animal testing carried out outside the EU, cannot be employed for the marketing of cosmetics in the EU, even if those tests had to be performed so as to meet the regulatory requirements of third countries.

Of course in WTO jargon, this recalls the discussion of non-product incorporated production processes and -methods (n-PR PPMs) however the Court is more concerned with regulatory efficiency.

Geert.

Following up on last week’s post on the Second Circuit’s comity decision in the Vitamin C Antitrust Litigation case, Professor Bill Dodge of UC Davis has the following thoughts (also cross-posted on Opinio Juris here)

American law has many doctrines based on international comity—doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit’s decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry’s interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should “abstain from exercising jurisdiction,”Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court’s. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity—deference to foreign lawmakers—which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court’s view, this doctrine authorized it to “balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders” (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court’s later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford “narrowly” (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as “too complex to prove workable.” Empagran recognized that ambiguous statutes should be construed “to avoid unreasonable interference with the sovereign authority of other nations,” but it also said in no uncertain terms that “application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.” Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must “declare invalid, and thus ineffective as ‘a rule of decision for the courts of this country,’ the official act of a foreign sovereign.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants’ own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China’s interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its “comity” analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. “International comity” is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

With many conflict of laws classes fresh underway, it is good to be reminded of the classics. Forum non conveniens was at issue in Kaynes v BP, at the Court of Appeal for Ontario. There is a pending class action in the U.S. District Court, Southern District of Texas. The class in that proceeding includes current plaintiff and other Canadian investors who purchased BP securities on the NYSE.

The judgment has ample and concise background, please refer to it for same. The Court of appeal has now lifted a stay, previously put in place on forum non conveniens ground, in light of changed circumstance. The U.S. District Court judge ruled that as the moving party and his proposed Canadian class were members of the class represented by the lead plaintiffs, he was not entitled to now assert a separate class action based upon a claim that the lead plaintiffs had not pursued. Second, the U.S. District Court judge ruled that the moving party’s claim was time-barred under the Ontario Securities Act. Plaintiff and other members of his proposed class are free to pursue individual claims in the U.S. District Court (not already represented in the class action) based on Ontario securities law, subject to any defences BP may advance, including a limitations defence. (Note that the US court therefore holds limitations to be part of the lex causae, not lex fori).

Since the US court do not claim exclusive jurisdiction over the litigation, and given that if a case were to go ahead in the US, it would be subject to Ontario law, the stay was lifted.

The case is a good illustration that forum non conveniens is live and evolving, not static.

Geert.

The German Notary Institute and the Chair of Civil Law, Private International Law and Comparative Law at the University of Regensburg are hosting a joint conference on the new Matrimonial Property Regulations for spouses and registered partners. The conference (in German language) will take place on 10 February 2017 in Würzburg. Speakers include:

• Professor Andrea Bonomi, Université de Lausanne
• Professor Michael Coester, Ludwig Maximilians University Munich
• Dr Christoph Döbereiner, Notary Public in Munich
• Professor Anatol Dutta, University of Regensburg
• Dr Andreas Köhler, University of Passau
• Professor Christian Kohler, Europa-Institut at the Saarland University
• Professor Stephan Lorenz, Ludwig Maximilians University Munich
• Professor Peter Mankowski, University of Hamburg
• Joanna Serdynska, European Commission, Brussels
• Dr Rembert Süß, German Notary Institute, Würzburg
• Dr Johannes Weber, German Notary Institute, Würzburg

The programme can be downloaded here.

During the months of October-December 2016, Professor Christian Kohler (Europa-Institut, University of Saarbrücken) will give a series of doctoral seminars on European Private International Law at the University of Padova, where he will be a Visiting Scientist during this period.

The programme can be found here.

Professor Bernardo Cortese, who has organized the series, warmly invites applications from PhD students with a focus on International and EU Law.

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Friday 14 October 2016 (14h00) a conference on “Cross border family litigation in Europe. The Brussels IIbis recast“.

Here is the programme (the sessions will be held in English and Italian):

Welcoming addresses

• Chiara Tonelli (Vice-Rector for Research, Univ. of Milan)
• Laura Ammannati (Director of the Department of International, Legal, Historical and Political Studies)

Chair: Stefania Bariatti (Univ. of Milan)

The Brussels IIbis recast

• Joanna Serdynska (Civil Justice Policy, DG Justice, European Commission): The Commission’s proposal
• Anatol Dutta (Universität Regensburg – MPI Hamburg): A comment on the Commission’s Proposal from a member of the Commission’s Expert Group

Round Table – The Commission’s Proposal: exchange of views among judges, practitioners and academics

• Giuseppe Buffone (Milan Court, Family Division)
• Monica Velletti (Rome Court, Family Division)
• Suzanne Todd (Whiters LPP, London)
• Cinzia Calabrese (President of AIAF Lombardia)
• Carlo Rimini (Univ. of Milan)
• Ilaria Viarengo (Univ. of Milan)

Closing remarks: Stefania Bariatti (Univ. of Milan)

Venue: Sala Lauree, Facoltà di Scienze Politiche, Economiche e Sociali, University of Milan.

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

In Zulfikarpašić Case C-484/15, Bot AG opined on 8 September. At issue is the intepretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined.

The question was submitted in the context of a dispute between Ibrica Zulfikarpašić, a lawyer established in Croatia, and Slaven Gajer, who is also domiciled in Croatia, regarding the certification as a European Enforcement Order, of a writ of execution issued by a notary based on an authentic document.  The referring court essentially inquires whether a notary who, in accordance with Croatian law, has issued a definitive and enforceable writ of execution based on an authentic document has the power to certify it as a European Enforcement Order where it has not been opposed. If the answer is no, the referring court asks whether a national court can carry out that certification where the writ of execution concerns an uncontested claim.

Article 4(1) of Regulation 805/2004 defines ‘judgment’ as ‘any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’. Article 2(a) of the Brussels I Recast Regulation now includes exactly the same definition. Yves Bot himself summarised the CJEU’s case-law on the notion of ‘judgment’ in the Brussels I Regulation in Gothaer. He reiterates that Opinion here and I should like to refer readers to my earlier summary of the Opinion in Gothaer.

After a tour de table of the various opinions expressed ia by the EC and by a number of Member States, the Advocate General submits that the concept of ‘court’ should be interpreted, for the purposes of Regulation No 805/2004, as covering all bodies offering guarantees of independence and impartiality, deciding on their own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority (at 108). A functional approach, therefore (at 109).

Advocate General Bot submits therefore that an enforcement title such as a writ of execution issued by a notary based on an authentic document constitutes a judgment within the meaning of Article 4(1) of Regulation No 805/2004, provided that the notary with power to issue that writ adjudicates, in the exercise of that specific function, as a court, which requires him to offer guarantees as to his independence and impartiality and to decide on his own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority. 

Whether these conditions are fulfilled is for the national courts to assess.

This Opinion and the eventual judgment by the Court will also be relevant for the application of the Succession Regulation, 650/2012. In matters covered by that Regulation, notaries throughout the EU have an important say and may quite easily qualifies as a ‘court’. Bot AG refers to the Regulation’s definition of ‘court’ at 71 ff of his current Opinion.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

Many thanks to Alexia Pato, PhD candidate at the Universidad Autónoma, Madrid, for this piece of news. And my best wishes!

Today, blog droit européen officially celebrates the opening of its European and private international law section (hereafter, EU and PIL section), which is edited and coordinated by Karolina Antczak (Ph.D. candidate at Université de Lille), Basile Darmois (Ph.D. candidate at Université Paris Est Créteil) and Alexia Pato (Ph.D. candidate at Universidad Autónoma de Madrid). In a recently published inaugural post (available here), they present their project in detail. In particular, they expose the positive interactions between PIL and European law, as well as their friction points. Undoubtedly, the increasingly tight links that are forged between these two disciplines encourage legal experts to collaborate and exchange their views. The creation of the mentioned section in blog droit européen contributes to the achievement of this objective.

The Content of the European and Private International Law Section

Although the EU and PIL section has just been inaugurated, more food for thought will be uploaded soon. Readers will find articles diving into PIL issues, and we will be covering additional areas such as international civil litigation, as well as the internal market and its four freedoms. Don’t miss our upcoming co-signed article on Brexit, highlighting its legal consequences from an international perspective. Also, on its way is a post discussing the EU’s competence to adopt minimum standards of civil procedure. Additionally, the team plans to upload interviews with professors and legal experts, who debate fundamental EU and PIL matters. These interviews will be available in video format. Lastly, readers will be able to stay updated by reading our posts on the latest legal news.

Contribute to the European and Private International Law Section

In order to foster constructive debates and extract the merits of collaborative learning, we welcome any Ph.D. candidate, professor, or legal professional to voice his/her opinion on the EU and PIL section. You may submit your ideas in the form of a post (approximately 1.000 words), which consists of a critical assessment on a particular topic. Working papers, video conferences and tutorials are equally welcome (for more information on how to contribute, click here). Articles can be written in either French or English.

What is blog droit européen?

Blog droit européen is a website that provides information with an interactive touch on a broad range of legal topics such as: digital single market, Economic and monetary Union, competition law, and so on. In particular, its purpose is to gather together students, investigators, professors, and legal experts who share a common and enhanced interest for European law at large (EU, ECHR, impact of European law on States’ public and private laws). The originality of blog droit européen lies in two essential features: firstly, the blog delivers high quality and varied contents, including interviews (of ECJ members and professors), call for papers and conferences, not to mention working papers and legal columns, which critically analyse EU law. Secondly, the use of e-techniques of information sharing, like Facebook, Twitter, and YouTube make this blog interactive and user friendly. From an organizational perspective, blog droit européeen is run and edited by young investigators from different legal backgrounds in different Universities across Europe (for an overview of our team, click here). Thanks to Olivia Tambou (Lecturer at Université Paris-Dauphine), our dedicated team leader and creator/editor of the blog, for connecting us and making this project possible.

See you soon on blog droit européen!

On Tuesday, the United States Court of Appeals for the Second Circuit issued a decision reversing a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C. The plaintiffs alleged that the Chinese manufacturers engaged in price fixing and supply manipulation in violation of U.S. antitrust laws. In its first ever appearance as an amicus before a U.S. court, the Chinese government filed a formal statement asserting that Chinese law required the Chinese manufacturers to set prices and reduce the quantities of Vitamin C sold abroad. Relying on this statement, the Second Circuit held that because the Chinese manufacturers could not comply with both Chinese law and the U.S. antitrust laws, principles of international comity compelled dismissal of the case.

This case raises a host of interesting questions. First, did the Second Circuit reach the right result? Second, is this a comity case or a foreign sovereign compulsion case? Third, what level of deference is due to a foreign sovereign that appears in private litigation to explain their country’s laws? Fourth, should U.S. judges defer to such an explanation?

It will be interesting to see whether this case makes it to the United States Supreme Court.

The following information is provided by the conference organizers.  Given how rare conflict of laws conferences are in Canada, I am delighted to pass this along.

The CJPTA: A Decade of Progress

In 2016, the Court Jurisdiction and Proceedings Transfer Act marks its tenth year in force.  Adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA has clarified and advanced the law of judicial jurisdiction. This symposium will assess the progress made by the CJPTA across the range of issues addressed and critically evaluate the capacity of the CJPTA: to provide leadership for the law in other parts of Canada; to enable further development in the law; and to meet the needs of Canadians in the years ahead in a world of increasing cross-border dealings.

Details:

Friday, October 21, 2016 (expected to run from 9am to 4:30pm)

University Club of Toronto (380 University Avenue, just north of the American consulate)

Co-chaired by Professor Janet Walker (Osgoode) and Lisa Munro (Lerners LLP) with the assistance of Dr. Sagi Peari and Gerard Kennedy

We are excited to bring you a fantastic lineup of speakers and panelists discussing a wide range of topics pertaining to CJPTA and judicial jurisdiction.

Space is limited. Kindly RSVP to

Sagi Peari (SPeari@osgoode.yorku.ca)
or
Gerard Kennedy (GerardKennedy@osgoode.yorku.ca)

by October 3, 2016.

One cannot have one’s cake and eat it. Meaning once the cake has been eaten, it is gone and you no longer have it. (Apologies but this saying is so often misunderstood I thought I should clarify).

Anyways, the Flemish tax administration had something along these lines in mind when it recently ruled in a case involving a Liechtenstein Stiftung. Many thanks to De Broeck & Van Laere for bringing the ruling to my attention. The Inland Revenue generally employ quite a lot of deference towards trusts and Stiftungs of all kind. In the case at hand however it requalified the transfer of means from the Stiftung to the heirs of the deceased, as being of a contractual nature. That is because the deceased, upon creation of the Stiftung, had issued such precise instructions in the Stiftung’s by-laws, that the hands of the trustees (or equivalent thereof) had been tied.  This essentially takes away a crucial part of the Stiftung’s nature, and no longer shields the assets from the (Flemish) taxman. The cake has been eaten.

Geert.

 

On the occasion of Hein Kötz’ 80th birthday in November 2015, a symposium in his honour was held at the Max-Planck-Institute for Comparative and International Private Law in Hamburg/Germany. The presentations given at this event have now been published (in German) by Mohr Siebeck, Tübingen: Zukunftsperspektiven der Rechtsvergleichung, ed. by Reinhard Zimmermann, 2016; XX, 267 pages.

Following an explanation by the editor as to why this is not a Festschrift, the volume contains contributions by Christiane Wendehorst (Vienna) on the comparison of legal systems, by Ralf Michaels (Duke) on religious laws and post-secular comparative law, by Giesela Rühl (Jena) on comparative law and European conflict of laws: the forgotten dimension, by Eva-Maria Kieninger (Würzburg) on principles and basic concepts of property law as objects of comparative law, by Gralf-Peter Calliess (Bremen) on the role of comparative law in the context of a competition between legal orders, by Marc-Philippe Weller (Heidelberg) on future prospects for comparative law in private international and corporate law, and by Jan von Hein (Freiburg/Br.) on market regulation by tort law from a comparative perspective. The book concludes with closing remarks by Hein Kötz.

Further information is available here.

This year does not only mark 30 years since the great reform of German private international law of 1986, but it is also the 35th anniversary of the foundation of the Praxis des Internationalen Privat- und Verfahrensrechts (IPRax). Therefore, Professor Heinz-Peter Mansel, President of the German Council for Private International Law, and Professor Jan von Hein, chairman of the Council’s 2nd Commission, are pleased to announce that a celebratory conference will take place on 23-24 September 2016 at the University of Cologne (Germany) under the title: “Codification of Private International Law: German Experience and European Perspectives Thirty Years After the PIL-Reform of 1986”. The conference, which will be held in German, will look at how Private International Law has evolved in the past and provide an outlook for future responsibilities and challenges of the field.

The conference programme (in German) is available here.

The Faculty of Law of the University of Rome “La Sapienza” will host a German-Italian-Spanish conference on Thursday, 13th October 2016, on International Successions in Europe. The conference has been convened for the presentation of the volume “The EU Succession Regulation: a Commentary”, edited by Alfonso-Luís Calvo Caravaca (University “Carlos III” of Madrid), Angelo Davì (University of Rome “La Sapienza”) and Heinz-Peter Mansel (University of Cologne), published by Cambridge University Press, 2016. The volume is the product of a research project on “The Europeanization of Private International Law of Successions” financed through the European Commission’s Civil Justice Programme.

Here is the programme (available as .pdf):

Welcome addresses: Prof. Enrico del Prato (Director, Department of Legal Sciences, University “La Sapienza”); Prof. Paolo Ridola (Dean, Faculty of Law, University “La Sapienza”); Prof. Angelo Davì (University “La Sapienza”).

First Session

Chair: Prof. Ugo Villani (University of Bari, President of SIDI-ISIL – Italian Society for International Law)

• Prof. Javier Carrascosa González (University of Murcia): La residenza abituale e la clausola di eccezione (Habitual Residence and Exception Clause);
• Prof. Cristina Campiglio (University of Pavia): La facoltà di scelta del diritto applicabile (Choice of the Applicable Law by the Testator);
• Prof. Erik Jayme (University of Heidelberg): Metodi classici e nuove norme di conflitto: il regolamento relativo alle successioni (Traditional Methods and New Conflict Rules: the EU Regulation Concerning Succession);
• Prof. Claudio Consolo (University “La Sapienza”): Il coordinamento tra le giurisdizioni (Coordination between Jurisdictions).

Second Session

Chair: Prof. Sergio Maria Carbone (University of Genova)

• Prof. Peter Kindler (University of Munich): I patti successori (Agreements as to Succession);
• Round Table: The European Certificate of Succession
  Introduction: Prof. Claudio Consolo (University “La Sapienza”);
  Participants: Dr. Ana Fernández Tresguerres (Notary in Madrid); Dr. Paolo Pasqualis (Notary in Portogruaro); Dr. Fabian Wall (Notary in Ludwigshafen).

Concluding remarks: Prof. Sergio Maria Carbone (University of Genova).

(Many thanks to Prof. Fabrizio Marongiu Buonaiuti, University of Macerata, for the tip-off)

By Professor Zheng Sophia Tang (Newcastle University), Professor Yongping Xiao (Wuhan University, China) and Professor Zhengxin Huo (China University of Politics and Law) The area of conflict of laws in China has undergone fundamental development in the past three decades and the most recent changes in the 2010s, regarding both jurisdiction and choice of law rules, mark the establishment of a modern Chinese conflicts system. Jointly written by three professors from both China and the UK, this book provides the most up-to-date and comprehensive analysis of Chinese conflict of laws in civil and commercial matters, covering jurisdiction, choice of law, procedure, judgment and awards recognition and enforcement, and interregional conflicts in China.

Providing comprehensive and sophisticated analysis of current Chinese conflict of laws, the authors assess the actual judicial practice and case decisions. The book takes into account the historic, political and economic background of the subject matter, as well as relevant empirical evidence and data, especially recognizing the contribution of Chinese scholars in the field. It examined over 300 cases and over 130 legislative and judicial interpretive materials. It concludes that the Chinese conflicts system has entered into the stage of modernization and proposes policy to improve efficiency, prevent local protectionism, balance internationalization and nationalization, democratize legislative process and improve judicial training and judicial practice.

This timely book is an invaluable resource for academics and practitioners in private international law, conflict of laws, international law, international litigation, Chinese law and international civil and commercial matters involving China.

Contents   Part I Conflict of Laws in China—History and Concept  1. Conflict of Laws in China—A Historical Perspective  2. Concepts and Preliminary Questions  Part II Jurisdiction, Procedure, Foreign Judgments and Awards  3. Jurisdiction in Chinese Courts  4. Declining Jurisdiction in Chinese Courts  5. Selected Procedural Issues in Foreign-Related Litigation in China  6. Recognition and Enforcement of Foreign Judgments in Chinese Courts  7. Recognition and Enforcement of Arbitral Awards in Chinese Courts  Part III Choice of Law  8. Choice of Law in Contracts  9. Choice of Law in Tort  10. Choice of Law in Unjust Enrichment and Negotiorum Gestio  11. Choice of Law in Property  12. Choice of Law in Intellectual Property  Part IV Interregional Conflicts and Cooperation  13 Interregional Conflicts and Cooperation between Mainland, Hong Kong, Macau and Taiwan  Part V Final Remarks  14. Chinese Conflict of Laws: Past, Present and Future   Critical Acclaim ‘This is an excellent and up-to-date book that enables the English-speaking world to get an accurate and comprehensive understanding of private international law in mainland China. The Chinese system can be said to be a mixed system, in that it is only partially governed by statute and much of the law still emerges from case law and interpretations of the law given by the Supreme People’s Court. The authors point out that only in very few cases do the Chinese courts actually apply foreign law. This tendency of the judges to avoid the application of foreign law is one of several features of the Chinese system of private international law that shows the importance of judicial decisions to understanding how the system actually works. The writers rightly point out areas where Chinese private international law could be improved, with recommendations that China should liberalise its approach to recognition and enforcement of foreign judgments by adopting a de jure approach to reciprocity and by entering into multilateral treaties like the Hague Choice of Court Agreements Convention 2005.’  – Paul Beaumont, University of Aberdeen, UK For full information, see http://www.e-elgar.com/shop/conflict-of-laws-in-the-people-s-republic-of-china. 

Giurisprudenza / Case law

Corte di giustizia, sentenza del 16 giugno 2016, causa C-511/14, Pebros Servizi Srl — Le condizioni in presenza delle quali, in caso di sentenza contumaciale, un credito si considera “non contestato”, ai sensi dell’articolo 3, par. 1, 2° comma, lett. b), del Regolamento (CE) n. 805/2004 sul titolo esecutivo europeo per i crediti non contestati, devono essere determinate in modo autonomo, sulla base di questo solo regolamento.  ♦  Court of Justice, judgment of 16 June 2016, case C-511/14, Pebros Servizi Srl — The conditions according to which, in the case of a judgment by default, a claim is to be regarded as ‘uncontested’, within the meaning of the second subparagraph of Article 3(1)(b) of Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims, must be assessed autonomously, solely in accordance with that regulation.

Corte di cassazione (Sezioni unite), sentenza n. 17989 del 13 settembre 2016 — Le obbligazioni pecuniarie che devono essere adempiute al domicilio del creditore ai sensi dell’art. 1182, comma 3, del codice civile sono soltanto quelle liquide, per tali intendendosi le obbligazioni delle quali il titolo determini l’ammontare o indichi criteri determinativi non discrezionali [Nota: il principio di diritto assume rilievo, quando il rapporto contrattuale controverso sia retto dal diritto italiano, anche agli effetti della determinazione del locus solutionis dell’obbligazione dedotta in giudizio ai sensi dell’art. 7 n. 1, lett. a), del Regolamento n. 1215/2012 sulla competenza giurisdizionale e il riconoscimento delle decisioni in materia civile e commerciale].  ♦  Italian Supreme Court (United chambers), judgment No 17989 of 13 September 2016 — Article 1182(3) of the Italian Civil Code provides that pecuniary obligations are to be performed at the domicile of the creditor. The provision only applies to ‘liquid’ obligations, ie, obligations of a fixed amount. For the latter requirement to be met, it must be established that either the amount was determined in the contract, or that the contract set forth non-discretionary rules for the determination of the amount due [Note: as regards obligations arising out of contracts governed by Italian law, the finding of the Court is relevant to the identification of the place of performance of the obligation in question pursuant to Article 7(1)(a) of Regulation n. 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters].

Strumenti normativi / Legal texts

Gli Stati Uniti hanno ratificato la Convenzione dell’Aja del 2007 sull’esazione internazionale di prestazioni alimentari nei confronti di figli e altri membri della famiglia. La Convenzione, già in vigore per l’UE e alcuni Stati extraeuropei, entrerà in vigore per gli Stati Uniti il 1° gennaio 2017. ♦  The US has ratified the Hague Convention on the international recovery of child support and other forms of family maintenance. The Convention, which is already in force for the EU and some extra-European States, will enter into force for the US on 1 January 2017.

Eventi / Events

New Trends in EU Private International Law – Milano, 15 settembre / September 2016 [Tra i relatori / Speakers include: Fausto Pocar, Paul Lagarde, Jürgen Basedow, Christian Kohler, Francisco Garcimartín Alférez, Manlio Frigo, Stefania Bariatti]

Dottrina / Scholarship

Mariel Revillard, Stratégie de transmission d’un patrimoine international – Nouvelles perspectives (2 ed.), Defrénois, 2016, ISBN 9782856232897, Euro 62 — Les successions occupent une place prépondérante dans le droit international privé de la famille. Chaque année, un nombre considérable de successions internationales sont réglées en France. Des ressortissants de nationalité étrangère décèdent, soit en France, soit à l’étranger, laissant des biens non seulement en France mais dans d’autres pays. Des Français acquièrent des biens étrangers. L’introduction de ces éléments d’extranéité soulève des questions spécifiques au regard de la dévolution future de leur succession.  La répartition d’un patrimoine dans différents pays suscite des problèmes de droit international privé et le notaire intervient de plus en plus à titre préventif dans la préparation d’une succession internationale (estate planning). Ceci suppose une parfaite connaissance des règles de conflit de lois, du droit interne étranger et de la fiscalité internationale en matière de succession. À la suite de l’entrée en application du règlement successions du 4 juillet 2012 qui opère de profonds bouleversements dans le droit des successions internationales, l’étude des successions internationales s’établit en distinguant le régime de droit commun applicable aux successions ouvertes avant le 17 août 2015 et celles ouvertes à partir du 17 août 2015. Le nouveau droit européen des successions justifiait donc cette seconde édition et ouvre aux notaires de nouvelles perspectives de planification successorale.

James Fawcett, Maire Ni Shuilleabhain, Sangeeta Shah, Human Rights and Private International Law, Oxford University Press, 2016, ISBN 9780199666409, GBP 210 — Examining the impact, both actual and potential, of human rights concerns on private international law as well as the oft overlooked topic of the impact of private international law on human rights, this work represents an invaluable resource for all those working or conducting research in these areas. Human Rights and Private International Law is the first title to consider and analyse the numerous private international law cases discussing human rights concerns arising in the commercial law context, alongside high profile cases dealing with torture (Jones v. Kingdom of Saudi Arabia) and same sex marriage (Wilkinson v Kitzinger).The right to a fair trial is central to the intersection between human rights and private international law, and is considered in depth along with the right to freedom of expression; the right to respect for private and family life; the right to marry; the right to property; and the prohibition of discrimination on the ground of religion, sex, or nationality. Focussing on, though not confined to, the human rights set out in the ECHR, the work also examines the influence of human rights on private international law in countries which are not a party to the ECHR, such as Australia, Canada, New Zealand, and the United States.

Alberto De Franceschi (ed.), European Contract Law and the Digital Single Market, Intersentia, 2016, ISBN 9781780684222, Euro 69 — The EU is committed to making the Single Market fit for the digital age, by enhancing the protection of consumers and data subjects, while providing businesses with the legal certainty they need to invest in this field and support growth and innovation. In this context, European Contract Law and the Digital Single Market, an edited collection consisting of carefully selected contributions by leading scholars, addresses the impact of digital technology on European Private Law in light of the latest legislative developments including the EU Regulation of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on free movement of such data, as well as the European Commission’s proposals of 9 December 2015 for a Directive on the supply of digital content, for a Directive on online and other distance sale of goods and for a Regulation on the cross-border portability of online content services in the internal market. The book analyses new and urgent issues in the field of contract, data protection, copyright and private international law: namely the EU approach to personal information as a tradeable commodity and as the object of a fundamental right of the individuals concerned, the protection of consumers’ and users’ rights in contracts for the supply of digital content and on online and other distance sales of goods, the cross-border portability of online content services, the new features of standard contracts in the digital market and the issues surrounding the emergence of the so called platform economy.

Da oggi post meno frequenti, tutti bilingui, contenenti ciascuno segnalazioni di natura diversa: pronunce giurisprudenziali, sviluppi normativi, eventi scientifici etc.

Beginning from today, posts will appear less frequently, they will all be written both in Italian and in English, and each will cover case law, normative developments, academic events etc.

The Center for the Study of Dispute Resolution at the University of Missouri School of Law and the American Society of International Law (ASIL) Dispute Resolution and Midwest Interest Groups, in association with Young ICSID, are pleased to announce two upcoming events: (1) a works-in-progress conference and (2) student writing competition. Both events focus on international dispute resolution, broadly defined.

More information on both events shows below and on the event website. Please feel free to forward this email to those who might be interested in either event.

Works in Progress Conference

The works-in-progress conference will take place on February 2 and 3, 2017, at the University of Missouri School of Law. The purpose of the conference is to help authors develop draft articles for publication, so authors will be required to submit a working draft before the conference takes place. Papers will be circulated in advance of the session, and all participants will be expected to provide detailed feedback on a limited number of other papers.

The works-in-progress conference will also feature various networking opportunities as well as several substantive presentations on issues relating to international dispute resolution. Presentations will be live or by video and include: Lady Justice Joyce Aluoch, Judge and First Vice-President of the International Criminal Court in the Hague, who will be speaking on matters of public international law; Ryan Reetz and Pedro Martinez-Fraga of Bryan Cave, who will be speaking on their recent book, Public Purpose in International Law: Rethinking Regulatory Sovereignty in the Global Era (Cambridge University Press 2015); and Paul-Jean Le Cannu, Legal Counsel at ICSID, who will speak on the future of investor-state dispute settlement systems.

Papers presented at the works-in-progress conference will be eligible for expedited review by the University of Missouri’s highly regarded Journal of Dispute Resolution as well as for consideration by the ICSID Review-Foreign Investment Law Journal. While submissions will have to go through the normal publication process and an offer of publication is not guaranteed, the editors of both journals are very interested in reviewing submissions from works-in-progress participants.

This is expected to be a very international event, and submissions are sought from academics and practitioners around the world. Junior professionals, including aspiring and untenured academics, are encouraged to submit proposals. To be considered, potential participants must submit a one-page abstract of their work on or before October 15, 2016. Details on how to submit a proposal for the works-in-progress conference can be found here.

Student Writing Competition

The University of Missouri is also sponsoring a student writing competition in conjunction with this event. The competition is open to current students at any institution in the world granting a degree in law. The competition carries a prize of $450 for first place and $125 for second place, and the winning paper is eligible to be considered for publication in the University of Missouri’s Journal of Dispute Resolution. The prize amounts may increase (funding is still being finalized), so be sure to check back for additional details. Students of all levels (J.D., LL.B., LL.M., S.J.D., and Ph.D.) are eligible to submit papers. Advanced degree students (LL.M., S.J.D. or Ph.D.) may submit the same paper for both the works-in-progress conference and the student writing competition. The deadline for the student writing competition is January 15, 2017. More details on the student writing competition are available here.

written by Veerle Van Den Eeckhout

On the blog section of the Dutch journal Nederlands Juristenblad, a new blog of Veerle Van Den Eeckhout on the Proposal for a revision of the Posting Directive has been published, see here.

Previous blogs on this theme can be found here and here.

This blog is entitled “Ipr en het verdergaande proces tot wijziging van de Detacheringsrichtlijn. Ipr in een politiek-juridisch krachtenveld (in English: “Private International Law and the ongoing process of revising the Posting Directive. PIL in a legal-political force field”). It is written in Dutch. An English version can be found here.

Wilmer Cutler Pickering Hale and Dorr LLP are delighted to invite you to the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration.
Professor Dr. Maxi Scherer, General Editor of the Journal of International Arbitration and Dr. Johannes Koepp, Special Issue Editor, will host a discussion with the authors on the content of the Special Issue.

Topics and speakers will include:
How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit – Dr. Holger P. Hestermeyer
What Does Brexit Mean for the Brussels Regime? – Sara Masters QC & Belinda McRae
Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe – Michael McIlwrath
Impact of Brexit on UK Competition Litigation and Arbitration –Gilbert Paul
Brexit and the Future of Intellectual Property Litigation and Arbitration – Annet van Hooft
Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs – Markus Burgstaller

The Special Issue journal launch will be followed by a champagne reception.