Droit international général

Sandra Mantu, Contingent Citizenship. The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill, 2015, ISBN: 9789004292994, pp. 388, 155 Euro.

[Dal sito dell’editore] – In Contingent citizenship, Sandra Mantu examines the changing rules of citizenship deprivation in the UK, France and Germany from the perspective of international and European legal standards. In practice, two grounds upon which loss of citizenship takes place stand out: fraud in the context of fraudulent acquisition of nationality and terrorism in the context of national security. Newly naturalised citizens and citizens of immigrant origin are mainly targeted by these measures. The resurrection of the importance attached to loyalty as the citizen’s main duty towards his/her state shows that the rules on loss of citizenship are capable of expressing ideals of membership and identity, while the citizenship status of certain citizens remains contingent upon meeting these ideals.

Ulteriori informazioni sono reperibili qui.

TDM is pleased to announce a forthcoming special issue on international arbitration involving commercial and investment disputes in Africa.

Africa’s accelerating economic development is attracting a substantial increase in cross-border commerce, trade, and investment on the continent, and disputes arising from this increased economic activity are inevitably bound to follow. International arbitration will be the preferred method for resolving many of these disputes. Indeed, the growing focus on international arbitration to resolve commercial and investment disputes relating to Africa is reflected, among other ways, in the fact that the International Council on Commercial Arbitration (ICCA) will be holding its 22nd Congress for the first time in Africa in May 2016 in Mauritius.

To a great extent, the issues that arise in international arbitration in or relating to Africa will be no different than those that arise in arbitrations around the globe. Converging international arbitration procedures and the predictability and stability afforded by the New York Convention and Washington Convention help to ensure that this is the case. Yet party autonomy remains a core value of the international arbitral system, and, as such, regional approaches and local culture will continue to shape African-related arbitrations to a degree, just as they do elsewhere. Africa’s rapid development is also likely to play a role in shaping international arbitration in this region.

This special issue will explore topics of particular interest and relevance to international arbitration in light of Africa’s unique and evolving situation. The issue will focus on sub-Saharan Africa and will address issues pertaining to both commercial and investment arbitration. It will also likely explore alternative methods for resolving disputes, including litigation, mediation, and local dispute-resolution mechanisms.

Possible topics for submission to the special issue might include:

* The proliferation of international arbitral institutions in Africa and what the future holds for institutional arbitration on the African continent;

* The attitudes of African states and state-owned enterprises towards international commercial arbitration;

* Salient issues in the OHADA international arbitration framework;

* The influence of China and other Asian countries on international arbitration in Africa;

* Issues in enforcing arbitral awards in African states;

* Evolving attitudes in Africa towards bilateral investment treaties (BITs) and the extent to which BITs are (or are not) helping African states attract foreign direct investment;

* South Africa’s draft investment law and other notable country-specific developments in Africa;

* Cultural issues impacting international arbitration in Africa;

* Empirical studies relating to international arbitration in Africa;

* Capacity building for arbitrators, judges, and practitioners in the region; and

* Alternative methods of resolving cross-border commercial and investment disputes in Africa.

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue.

This special issue will be edited by Thomas R. Snider (Greenberg Traurig LLP), Professor Won Kidane (Seattle University Law School and the Addis Transnational Law Group), and Perry S. Bechky (International Trade & Investment Law PLLC).

Please address all questions and proposals to the editors at SniderT@gtlaw.com, kidanew@seattleu.edu, and pbechky@iti-law.com, copied to info@transnational-dispute-management.com.

Anche quest’anno, il 25 ottobre 2015 si celebra la giornata europea della giustizia civile. In questa occasione gli Stati del Consiglio d’Europa sono invitati ad organizzare incontri volti alla formazione degli operatori del diritto e alla sensibilizzazione delle persone verso i temi della giustizia civile, compresa la cooperazione giudiziaria.

In questo contesto, si segnalano, in Italia, due eventi in programma il 26 ottobre 2015, rispettivamente a Catania e a Firenze.

Il primo, organizzato dalla Scuola Superiore della Magistratura – Struttura territoriale di formazione decentrata del Distretto di Catania, avrà ad oggetto La responsabilità civile: nuove e vecchie questioni interne e prospettive europee (vedi qui). L’altro, a cura della Camera civile e della Corte d’appello di Firenze, sarà dedicato a Le successioni transfrontaliere. Cosa cambia dopo l’entrata in vigore del Regolamento Europeo n. 650/2012 (questo il programma).

Il 4 novembre 2015, poi, si terrà a Ferrara, sempre in relazione alla Giornata europea della Giustizia civile, un convegno interdisciplinare organizzato dal Tribunale e dal Dipartimento di Giurisprudenza dell’Università di Ferrara.

Si parlerà de L’accesso alla giustizia dei consumatori: le controversie di consumo tra giustizia ordinaria e ADR (Giovanni De Cristofaro, Univ. Ferrara), de Le linee guida dell’ultima riforma della legge fallimentare alla luce delle raccomandazioni della Commissione europea su un nuovo approccio al fallimento delle imprese ed all’insolvenza (Andrea Lolli, Univ. Ferrara, e Stefano Giusberti, Trib. Ferrara), nonché di Nuovi strumenti per la tutela transnazionale del credito commerciale: dalla riforma del regolamento Bruxelles I all’ordinanza europea di sequestro conservativo dei conti bancari (Pietro Franzina, Univ. Ferrara).

La locandina di quest’ultimo evento è reperibile qui.

Le segnalazioni relative agli eventi programmati in occasione della giornata europea della giustizia civile nei diversi Stati del Consiglio d’Europa confluiscono in questi giorni a questo indirizzo.

Burkhard Hess, Cristina M. Mariottini, Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments, Ashgate, 2015, ISBN 9781472473301, pp. 400, GBP 72.

[Dal sito dell’editore] – A new volume has recently been published in the Max Planck Institute Luxembourg Book Series. Ensuring the effective right to privacy regarding the gathering and processing of personal data has become a key issue both in the internal market and in the international arena. The extent of one’s right to control their data, the implications of the ‘right to be forgotten’, the impact of the Court of Justice of the European Union’s decisions on personality rights, and recent defamation legislation are shaping a new understanding of data protection and the right to privacy. This book explores these issues with a view to assessing the status quo and prospective developments in this area of the law which is undergoing significant changes and reforms.

Ulteriori informazioni, compreso il sommario dell’opera, sono disponibili in inglese e in tedesco, rispettivamente, qui e qui.

The Max Planck Institute Luxembourg is accepting applications for the 2016 Summer School on Approaches to Procedural Law: The Pluralism of Methods, organised in collaboration with the International Association of Procedural Law under the direction of Loïc Cadiet (Université Paris 1 – Sorbonne) and Burkhard Hess (MPI Luxembourg).

The Summer School will take place at the Max Planck Institute Luxembourg between 10 and 13 July 2016. Up to 20 places will be available for applicants having procedural law and/or dispute resolution mechanisms as their main field of academic interest.

The deadline for applications is 31 January 2016.

[From the press release] – The first IAPL-MPI Summer School at the premises of the Max Planck Institute in Luxembourg in July 2014 was a successful experience, recently crowned by the publication of the collective book Procedural Science at the Crossroads of Different Generations (Nomos 2015). This success has encouraged the organization of a second edition in 2016. The second edition of IAPL-MPI Post-Doctoral Summer School aims like the first one to bring together outstanding young post-doc researchers of any nationality dealing with European and comparative procedural law, as well as with other relevant dispute mechanisms for civil controversies. Researchers at the very ending stage of their PhD project are also invited to apply. The School will give them an opportunity to openly share and discuss their current project of research with other young colleagues, but also with experienced law professors and practitioners. In this regard, Luxembourg is presently for many reasons one of the most interesting venues in Europe, where many opportunities for exchanges between procedural theory and practice are offered.

Further details can be found here

The Polish Yearbook of International Law has issued a call for unpublished papers addressing, inter alia, private international law topics, to be included in its next volume.

The deadline for submissions is 31 January 2016.

Further information can be found here.

In my posting on Lutz I flagged the increasing relevance of Article 13 of the Insolvency Regulation. This Article neutralises the lex concursus in favour of the lex causae governing the act between a person (often a company) benefiting from an act detrimental to all the creditors, and the insolvent company. Classic example is a payment made by the insolvent company to one particular creditor. Evidently this is detrimental to the other creditors, who are confronted with reduced means against which they can exercise their rights. Article 13 reads

Detrimental acts. Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that: – the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and – that law does not allow any means of challenging that act in the relevant case.

In the case at issue, C-310/14, Nike (incorporated in The Netherlands) had a franchise agreement with Sportland Oy, a Finnish company. This agreement is governed by Dutch law (through choice of law). Sportland paid for a number of Nike deliveries. Payments went ahead a few months before and after the opening of the insolvency proceedings. Sportland’s liquidator attempts to have the payments annulled, and to have Nike reimburse.

Under Finnish law, para 10 of the Law on recovery of assets provides that the payment of a debt within three months of the prescribed date may be challenged if it is paid with an unusual means of payment, is paid prematurely, or in an amount which, in view of the amount of the debtor’s estate, may be regarded as significant. Under Netherlands law, according to Article 47 of the Law on insolvency (Faillissementswet), the payment of an outstanding debt may be challenged only if it is proven that when the recipient received the payment he was aware that the application for insolvency proceedings had already been lodged or that the payment was agreed between the creditor and the debtor in order to give priority to that creditor to the detriment of the other creditors.

Nike first of all argued, unsuccessfully in the Finnish courts, that the payment was not ‘unusual’. The Finnish courts essentially held that under relevant Finnish law, the payment was unusual among others because the amount paid was quite high in relation to the overall assets of the company. Nike argues in subsidiary order that Dutch law, the lex causae of the franchise agreement, should be applied. Attention then focussed (and the CJEU held on) the burden of proof under Article 13, as well as the exact meaning of ‘that law does not allow any means of challenging that act in the relevant case.‘

Firstly, the Finnish version of the Regulation seemingly does not include wording identical or similar to ‘in the relevant case‘ (Article 13 in fine). Insisting on a restrictive interpretation of Article 13, which it had also held in Lutz, the CJEU held that all the circumstances of the cases need to be taken into account. The person profiting from the action cannot solely rely ‘in a purely abstract manner, on the unchallengeable character of the act at issue on the basis of a provision of the lex causae‘ (at 21).

Related to this issue the referring court had actually quoted the Virgos Schmit report, which reads in relevant part (at 137) ‘By “any means” it is understood that the act must not be capable of being challenged using either rules on insolvency or general rules of the national law applicable to the act’. This interpretation evidently reduces the comfort zone for the party who benefitted from the act. It widens the search area, so to speak. It was suggested, for instance, that Dutch law in general includes a prohibition of abuse of rights, which is wider than the limited circumstances of the Faillissementswet, referred to above.

The CJEU surprisingly does not quote the report however it does come to a similar conclusion: at 36: ‘the expression ‘does not allow any means of challenging that act …’ applies, in addition to the insolvency rules of the lex causae, to the general provisions and principles of that law, taken as a whole.’

Attention then shifted to the burden of proof: which party is required to plead that the circumstances for application of a provision of the lex causae leading to voidness, voidability or unenforceability of the act, do not exist? The CJEU held on the basis of Article 13’s wording and overall objectives that it is for the defendant in an action relating to the voidness, voidability or unenforceability of an act to provide proof, on the basis of the lex causae, that the act cannot be challenged. Tthe defendant has to prove both the facts from which the conclusion can be drawn that the act is unchallengeable and the absence of any evidence that would militate against that conclusion (at 25).

However, (at 27) ‘although Article 13 of the regulation expressly governs where the burden of proof lies, it does not contain any provisions on more specific procedural aspects. For instance, that article does not set out, inter alia, the ways in which evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it.‘

‘(T)he issue of determining the criteria for ascertaining whether the applicant has in fact proven that the act can be challenged falls within the procedural autonomy of the relevant Member State, regard being had to the principles of effectiveness and equivalence.’ (at 44)

The Court therefore once again bumps into the limits of autonomous interpretation. How ad hoc, concrete (as opposed to ‘in the abstract’: see the CJEU’s words, above) the defendant has to be in providing proof (and foreign expert testimony with it), may differ greatly in the various Member States. Watch this space for more judicial review of Article 13.

Geert.

A new article by Dr. Manuel Penadés Fons, London School of Economics, has been published at the Modern Law Review, (2015) 78(2) MLR 241–295.

Abstract

English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.

The programme of the the Fifth Biennial Conference of the Asian Society of International Law, that will take place in Bangkok on 26 and 27 November 2015 under the title International Law and the Changing Economic & Political Landscape in Asia, is now available.

Some of the conference panels will deal with private international law issues. In particular, one panel will be devoted to Conflict of Laws Issues Relating To Family, Marriage & Children and will host presentations by Ornella Feraci (University of Florence), The Impact of the Best Interests of the Child on the Recognition of Civil Status Lawfully Acquired Abroad Following International Surrogacy Arrangements (ISAs); M.Z. Ashraful (Metropolitan University, Sylhet, Bangladesh), Conflict of Laws Complexities Arising from the International Surrogacy Agreement: A Study on South Asian Countries; Monica Chawla (Indian Society of International Law), Conflicts of Laws Arising Due to Inter-country Adoptions – An Analysis;  Andrea Susanne Büchler (University of Zurich), Divided Motherhood Across the Globe: Surrogacy and Legal and Cultural Encounters between Europe and Asia.

The whole programme is available here. The abstracts of the presentations may be found here and here.

For more information see here.

One night this week I was teaching a taster class to final year secondary school students (17-18yr olds). I decided I should make it challenging enough. This, I surmised, would help all those present. Either they would now run a mile from Law School, never to look back (thus taking away all doubt). Or their curiosity would be tickled enough for them to want to learn more (thus for them, too, taking away all doubt). I settled on CSR and conflicts: the Shell Nigeria case, with links to Kiobel (and Adam Smith, David Ricardo; special purpose vehicles; and the impending merger between Leuven’s AB Inbev and SAB Miller. All very exciting stuff!, in an allocated tome slot of 30 minutes). I hope readers will agree that conflict of laws does just the trick referred to above: scare off the doubters; pull in the doubters.

Anyways, that class was at the back of my mind as I was reading up on Americold Logistics. I am not a US trained or US qualified lawyer hence this posting may not be howler-proof however I understand that one particular avenue to gain access to US federal courts (as opposed to State courts; and over and above the issue being an issue based on federal law), is so-called ‘diversity jurisdiction’. This means the federal courts can hear a case if the citisenship of the parties involved is diverse: i.e. of at least two different US States or one of them being foreign. I also understand that to determine corporate citisenship, reference is made to the principal place of business (not therefore generally co-inciding with place of incorporation).

But how about trusts? What identify does a trust have with a view to diversity jurisdiction? In Americold Logistics, the Tenth Circuit sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties. The issue is disputed, following relevant (seemingly inconclusive) precedent, summarised by SCOTUS here.  The USCC has now granted certiorari.

This judgment will be of quite some relevance to US legal (trust) practice. I think readers will agree that it was wise not to pick it, and the wider issue of trust identity, for lawyers in spe.

Geert.

This year’s volume of the Yearbook of Private International Law is just about to be released. The Yearbook is edited by Professors Andrea Bonomi (Lausanne) and Gian Paolo Romano (Geneva) and published in association with the Swiss Institute of Comparative Law. This year’s edition is the first volume to be published by Otto Schmidt (Cologne), ISBN 978-3-504-08004-4. It is 588 pages strong and costs 189,00 €. For further information, please click here.

The new volume contains the following contributions:

Doctrine
Linda J. SILBERMAN
Daimler AG v. Bauman: A New Era for Judicial Jurisdiction in the United States
Rui Manuel MOURA RAMOS
The New Portuguese Arbitration Act (Law No. 63/2011 of 14 December on Voluntary Arbitration)
Francisco GARCIMARTÍN
Provisional and Protective Measures in the Brussels I Regulation Recast
Martin ILLMER
The Revised Brussels I Regulation and Arbitration – A Missed Opportunity?
Ornella FERACI
Party Autonomy and Conflict of Jurisdictions in the EU Private International Law on Family and Succession Matters
Gian Paolo ROMANO
Conflicts between Parents and between Legal Orders in Respect of Parental Responsibility

Special Jurisdiction under the Brussels I-bis Regulation
Thomas KADNER GRAZIANO
Jurisdiction under Article 7 no. 1 of the Recast Brussels I Regulation: Disconnecting the Procedural Place of Performance from its Counterpart in Substantive Law. An Analysis of the Case Law of the ECJ and Proposals de lege lata and de lege ferenda
Michel REYMOND
Jurisdiction under Article 7 no. 1 of the Recast Brussels I Regulation: The Case of Contracts for the Supply of Software
Jan VON HEIN
Protecting Victims of Cross-Border Torts under Article 7 No. 2 Brussels Ibis: Towards a more Differentiated and Balanced Approach

Surrogacy across State Lines: Challenges and Responses
Marion MEILHAC-PERRI
National Regulation and Cross-Border Surrogacy in France
Konstantinos ROKAS
National Regulation and Cross-Border Surrogacy in European Union Countries and Possible Solutions for Problematic Situations
Michael WELLS-GRECO / Henry DAWSON
Inter-Country Surrogacy and Public Policy: Lessons from the European Court of Human Rights

Uniform Private International Law in Context
Apostolos ANTHIMOS
Recognition and Enforcement of Foreign Judgments in Greece under the Brussels I-bis Regulation
Annelies NACHTERGAELE
Harmonization of Private International Law in the Southern African Development Community

News from Brussels
Michael BOGDAN
Some Reflections on the Scope of Application of the EU Regulation No 606/2013 on Mutual Recognition of Protection Measures in Civil Matters

National Reports
Diego P. FERNANDEZ ARROYO
A New Autonomous Dimension for the Argentinian Private International Law System
Maja KOSTIC-MANDIC
The New Private International Law Act of Montenegro
Claudia LUGO HOLMQUIST / Mirian RODRÍGUEZ REYES
Divorce in the Venezuelan System of Private International Law
Maria João MATIAS FERNANDES
International Jurisdiction under the 2013 Portuguese Civil Procedure Code
Petra UHLÍROVÁ
New Private International Law in the Czech Republic

Forum
Chiara MARENGHI
The Law Applicable to Product Liability in Context: Article 5 of the Rome II Regulation and its Interaction with other EU Instruments
Marjolaine ROCCATI
The Role of the National Judge in a European Judicial Area – From an Internal Market to Civil Cooperation

Ad oltre due mesi di distanza dalla pubblicazione della legge n. 101 del 18 giugno 2015, di autorizzazione alla ratifica, l’Italia ha provveduto, il 30 settembre 2015, al deposito del proprio strumento di ratifica della Convenzione sulla competenza, la legge applicabile, l’efficacia delle decisioni e la cooperazione in materia di responsabilità genitoriale e di misure di protezione dei minori, fatta all’Aja il 19 ottobre 1996 (si veda da ultimo, sull’iter del processo di ratifica, questo post).

La Convenzione, come previsto dal suo art. 61, par. 2, lett. a), entrerà in vigore per l’Italia il 1° gennaio 2016.

La ratifica italiana è accompagnata da diverse dichiarazioni.

Innanzitutto, come gli altri Stati membri dell’Unione, l’Italia ha dichiarato – nei termini contemplati sin dalla decisione 2003/93/CE, del Consiglio, del 19 dicembre 2002 – che gli articoli 23, 26 e 52 della Convenzione concedono alle parti contraenti una certa flessibilità ai fini della semplicità e della rapidità del regime di riconoscimento ed esecuzione delle decisioni e che la normativa comunitaria prevede un sistema di riconoscimento ed esecuzione che è almeno altrettanto favorevole quanto le norme stabilite dalla Convenzione. Di conseguenza, prosegue la dichiarazione, una decisione emanante da un organo giurisdizionale di uno Stato membro dell’Unione su una questione relativa alla Convenzione è riconosciuta ed eseguita in Italia in applicazione delle pertinenti norme interne del diritto comunitario.

Avvalendosi della facoltà prevista all’art. 55 della Convenzione, l’Italia ha poi reso noto di riservare la competenza delle proprie autorità quanto all’adozione di misure volte alla protezione dei beni di un minore che si trovino sul territorio italiano. Ha inoltre dichiarato di riservarsi il diritto di non riconoscere una responsabilità genitoriale o una misura che potrebbe essere incompatibile con una misura adottata dalle sue autorità riguardo a tali beni.

Un’ulteriore dichiarazione resa dall’Italia contestualmente alla ratifica si riferisce all’art. 34, par. 1, della Convenzione. La norma ora ricordata stabilisce che, in previsione dell’adozione di una misura di protezione, le autorità competenti ai sensi della Convenzione possono domandare ad ogni autorità di un altro Stato contraente che detenga informazioni utili per la protezione del minore di comunicargliele. In forza della dichiarazione, tale richiesta, ove sia rivolta alle autorità italiane, potrà essere fatta – come consente l’art. 34, par. 2 – esclusivamente per il tramite dell’Autorità centrale italiana, identificata, ai sensi dell’art. 3 della legge n. 101/2015, nella Presidenza del Consiglio dei Ministri.

Alla stessa Autorità centrale dovranno essere indirizzare le domande di cui agli articoli 8, 9 e 33 della Convenzione, provenienti dagli altri Stati contraenti. Le disposizioni ora citate riguardano, in sintesi, il trasferimento del caso a un’autorità meglio collocata per pronunciarsi su di esso (articoli 8 e 9), e il collocamento del minore in una famiglia di accoglienza o in un istituto (o la sua assistenza legale tramite kafala o istituto analogo), quando tale collocamento (o assistenza) avverrà in un altro Stato contraente (art. 33).

L’approssimarsi dell’entrata in vigore per l’Italia rende urgente l’adozione, nell’ordinamento interno, di quelle misure di attuazione e di coordinamento con le norme esistenti che il Parlamento non è stato in grado di elaborare assieme alla legge di autorizzazione alla ratifica e all’emanazione dell’ordine di esecuzione.

Il disegno di legge recante tali misure (atto Senato n. 1552 bis), stralciato dal disegno di legge di autorizzazione alla ratifica, è tuttora allo studio della Commissione Giustizia del Senato, che nella seduta del 21 luglio 2015 ha prospettato lo svolgimento di un ciclo di audizioni.

Ensuring the effective right to privacy regarding the gathering and processing of personal data has become a key issue both in the internal market and in the international arena. The extent of one’s right to control their data, the implications of the ‘right to be forgotten’, the impact of the Court of Justice of the European Union’s decisions on personality rights, and recent defamation legislation are shaping a new understanding of data protection and the right to privacy. This book, edited by B. Hess and Cristina M. Mariottini, explores these issues with a view to assessing the status quo and prospective developments in this area of the law which is undergoing significant changes and reforms.

Contents:
Foreword, PEDRO CRUZ VILLALÓN
The Court of Justice of the EU Judgment on Data Protection and Internet Search Engines: Current Issues and Future Challenges, CHRISTOPHER KUNER
The CJEU Judgment in Google Spain: Notes on Its Causes and perspectives on Its Consequences, CRISTIAN ORO MARTINEZ
The CJEU’s Decision on the Data Retention Directive, MARTIN NETTESHEIM
The CJEU’s decision on the Data Retention Directive: Transnational Aspects and the Push for Harmonisation – A Comment on Professor Martin Nettesheim, GEORGIOS DIMITROPOULOS
The Protection of Privacy in the Case Law of the CJEU, BURKHARD HESS
Freedom of Speech and Foreign Defamation Judgments: From New York Times v Sullivan via Ehrenfeld to the 2010 SPEECH Act, CRISTINA M MARIOTTINI

Further information is available here (English) and here (German).

A lot of attention last week went to the CJEU’s annulment of the EC’s ‘Safe Harbour’ decision in Schrems v Facebook  (aka Austrian student takes on internet giant). I will not detail that finding for I assume, for once, that readers will be au fait with that judgment. For those who are not: please refer to Steve Peers for excellent analysis as per usual. It is noteworthy though that the CJEU’s finding in Schrems is based in the main on a finding of ultra vires: often easily remedied, as those with a background in public law will know.

Schrems (held 6 October) confirmed the Court’s approach to the EU’s prescriptive jurisdiction in data protection laws, as in Google Spain. However the Thursday before, on 1 October, the Court took a more restrictive view on ‘executive’ or ‘enforcement’ jurisdiction in Case C-230/14 Weltimmo. Lorna Woods has the general context and findings over at EU Law analysis. The essence in my view is that the Court insists on internal limitations to enforcement. It discussed the scope of national supervisory authority’s power in the context of Directive 95/4, the same directive which was at issue in Google Spain. The Court held

Where the supervisory authority of a Member State, to which complaints have been submitted in accordance with Article 28(4) of Directive 95/46, reaches the conclusion that the law applicable to the processing of the personal data concerned is not the law of that Member State, but the law of another Member State, Article 28(1), (3) and (6) of that directive must be interpreted as meaning that that supervisory authority will be able to exercise the effective powers of intervention conferred on it in accordance with Article 28(3) of that directive only within the territory of its own Member State. Accordingly, it cannot impose penalties on the basis of the law of that Member State on the controller with respect to the processing of those data who is not established in that territory, but should, in accordance with Article 28(6) of that directive, request the supervisory authority within the Member State whose law is applicable to act.

In other words, the supervisory authority in a Member State can examine the complaints it receives even if the law that applies to the data processing is the law of another Member State. However the scope of its sanctioning power is limited by its national borders.

This finding (I appreciate there are caveats) has important implications for the discussion on the territorial reach of the so-called ‘righ to be forgotten’. It supports in my view, the argument that the EU cannot extend its right to be forgotten rule to websites outside the EU’s domain. I have a paper forthcoming which discusses the various jurisdictional issues at stake here and the impact of Weltimmo on same.

Geert.

On the occasion of the 35th Anniversary of the Vienna Convention on Contracts for the International Sale of Goods (CISG), the Faculty of Law of the University of Zagreb will host a conference, organised together with Uncitral, titled 35 Years of CISG – Present Experiences and Future Challenges.

The conference will take place on 1  and 2 December 2015.

The first day will be dedicated to the Present Experiences concerning the application of the CISG, focusing on the use of the Convention especially in Central and Eastern European countries. In particular, the main topics that will be touched by twenty national reporters relate to the personal and substantive scope of the CISG, reservations to the CISG and rights and obligations arising out of sales contracts.

The second day will be devoted to the Future Challenges of CISG. There will be panel discussions focusing on The extensive interpretation and application of the CISG beyond the contracts of sale, What the CISG would look like if it was drafted for adoption today?, The interplay between the CISG and other legal sources of contract law (or contract principles).

The panels will feature the participation of Siniša Petrović (University of Zagreb), Joseph Lookofsky (Copenhagen Center for Commercial Law, University of Copenhagen), Loukas Mistelis (Queen Mary University of London), Kasper Steensgaard (Aarhus University), Azar Aliyev (Kiel Center for Eurasian Economic Law, Kiel University), Pilar Perales Viscasillas (Carlos III University of Madrid), Ingeborg Schwenzer (University of Basel/Swiss International Law School ), Harry M. Flechtner (University of Pittsburgh Law School), Ulrich G. Schroeter (University of Mannheim), Cyril Emery (UNCITRAL), Renaud Sorieul (the Secretary of UNCITRAL), Marta Pertegás (Hague Conference on Private International Law), Mikolaj Zaleski (EU Commission), José Angelo Estrella Faria (Secretary General Unidroit), Jelena Perović (University of Belgrade).

The official program of the conference can be found here.

For the on-line registration form and the registration fees, see here.

Information regarding accommodation is available here.

Professor Ronald A. Brand, the Chancellor Mark A. Nordenberg University Professor and the Director of the Center for International Legal Education at the University of Pittsburgh School of Law, has just posted a new article to SSRN regarding the “Continuing Evolution of U.S. Judgments Recognition Law.” It is available for download here. It generally deals with the history of such law from Hilton v. Guyot to the present day, demonstrates some of the problems indicated by recent cases, and comments on the federalism concerns that are delaying the ratification of the 2005 Hague Choice of Courts Convention in the United States. A more detailed abstract is below.

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgments recognition action is brought (recognition jurisdiction), and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments. This article reviews the history of U.S. judgments recognition law, summarizes current substantive law on the recognition and enforcement of foreign judgments, reviews recent decisions that demonstrate the three specific problem areas, and proposes a coordinated approach using federal substantive law on judgments recognition and state law on related matters in order to eliminate the current problems of non-uniformity and inefficient use of the courts.

Djakhongir Saidov, Conformity of Goods and Documents, Hart Publishing, 2015, ISBN 9781849461559, pp. 318, GBP 75.

[Dal sito dell’editore] – This book provides a detailed examination of the issue of conformity of goods and documents under the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). This issue lies at the heart of sales law and is one of the most frequently litigated. The book explores the Convention’s requirements as to quality, quantity, description and packaging of the goods (conformity); the requirements flowing from the need for the goods to be free from rights or claims of third parties; and the questions of what documents the seller must deliver to the buyer and what constitutes a ‘good’ document under the CISG. The book engages extensively with a substantial body of cases decided under the CISG and academic commentary. It systematises the Convention’s experience to date with a view to turning it into an integrated, comprehensive and distinctive CISG legal regime on conformity of goods and documents. The analysis is comparative and draws on the experience of some major domestic legal systems, such as English and US law. The focus is both analytical and practical. The book will be of interest to legal practitioners, academic lawyers and students with an interest in international and comparative sales, commercial and contract law.

Ulteriori informazioni sull’opera sono disponibili a questo indirizzo.

Last fall, the University of Missouri Center for the Study of Dispute Resolution convened an international symposium entitled “Judicial Education and the Art of Judging: From Myth to Methodology.” Panelists included judges, academics and judicial education experts from the United States, Canada and Australia.

The symposium arose out of the recognition that although there is a large and ever-increasing body of literature on matters relating to judicial appointments, judicial independence, judicial policy making and the like, there is an extremely limited amount of information on how someone learns to be a judge. The conventional wisdom in the common law world holds that judges arrive on the bench already equipped with all the skills necessary to manage a courtroom and dispense justice fully, fairly and rapidly. However, many judges have written about the difficulties they have had adjusting to the demands of the bench, and social scientists have identified a demonstrable link between judicial education and judicial performance. As a result, it is vitally important to identify and improve on best practices in judicial education.

The symposium sought to improve the understanding of judicial education by considering three related issue: (1) what it means to be a judge and what it is about judging that is different than other sorts of decision-making; (2) what the goal of judicial education is or should be; and (3) how judges can and should be educated. While most of the discussion took place within the context of common law legal systems, much of the material is of equal relevance to civil law systems.

Articles from this symposium are freely available here. The table of contents shows below.

Judicial Education and Regulatory Capture: Does the Current System of Educating Judges Promote a Well-Functioning Judiciary and Adequately Serve the Public Interest? S.I. Strong
What Judges Want and Need: User-Friendly Foundations for Effective Judicial Education Federal Circuit, Judge Duane Benton and Jennifer A.L. Sheldon-Sherman
Judicial Bias: The Ongoing Challenge, Kathleen Mahoney
International Arbitration, Judicial Education, and Legal Elites, Catherine A. Rogers
Towards a New Paradigm of Judicial Education, Chief Justice Mary R. Russell
Writing Reasoned Decisions and Opinions: A Guide for Novice, Experienced, and Foreign Judges S.I. Strong
Judging as Judgment: Tying Judicial Education to Adjudication Theory, Robert G. Bone
Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role, Chad M. Oldfather
Educating Judges—Where to From Here?, Livingston Armytage
Judicial Education: Pedagogy for a Change, T. Brettel Dawson

This post has been written by Martina Mantovani.

On 10 September 2015, Advocate General Wahl delivered his opinion in Case C-350/14, Florin Lazar, regarding the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). Pursuant to this provision, a non-contractual obligation arising out of a tort is governed, as a general rule, by the law of “the place where the damage occurred”, irrespective of the country in which the event giving rise to the damage occurred “and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerns a fatal traffic accident occurred in Italy.

Some close relatives of the woman who died in the accident, not directly involved in the crash, brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

Before the Tribunal of Trieste, seised of the matter, the issue arose of whether, for the purposes of the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, the question was whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” under Article 4(1), or rather as an “indirect consequence of the event”, with no bearing on the identification of the applicable law.

According to AG Wahl, a “direct damage” within the meaning of Article 4(1) does not cover the losses suffered by family members of the direct victim.

In the opinion, the Advocate General begins by acknowledging that, under the domestic rules of some countries, the close relatives of the victim are allowed to seek satisfaction in their own right (iure proprio) for the pecuniary and non-pecuniary losses they suffered as a consequence of the fatal (or non-fatal) injury suffered by the victim, and that, in these instances, a separate legal relationship between such relatives and the person claimed to be liable arises and co-exists with the one already set in place between the latter and the direct victim.

In the Advocate General’s view, however, domestic legal solutions on third-party damage should not have an impact on the interpretation of the word “damage” in Article 4(1), which should rather be regarded as an autonomous notion of EU law. The latter notion should be construed having due regard, inter alia, to the case law of the ECJ concerning Article 5(3) of the 1968 Brussels Convention and of the Brussels I Regulation (now Article 7(2) of the Brussels Ia Regulation), in particular insofar as it excludes that consequential and indirect (financial) damages sustained in another State by either the victim himself or another person, cannot be invoked in order to ground jurisdiction under that provision (see, in particular, the judgments in Dumez and Tracoba, Marinari and Kronhofer).

That solution, the Advocate General concedes, has been developed with specific reference to conflicts of jurisdictions, on the basis of considerations that are not necessarily as persuasive when transposed to the conflicts of laws. The case law on Brussels I, with the necessary adaptation, must nevertheless be treated as providing useful guidance for the interpretation of the Rome II Regulation.

Specifically, AG Wahl stresses that the adoption of the sole connecting factor of the loci damni in Article 4(1) of the Rome II Regulation marks the refutation of the theory of ubiquity, since, pursuant to the latter provision, torts are governed by one law. The fact of referring exclusively to the place where the damage was sustained by the direct victim, regardless of the harmful effects suffered elsewhere by third parties, complies with this policy insofar as it prevents the splitting of the governing law with respect to the several issues arising from the same event, based on the contingent circumstance of the habitual residence of the various claimants.

The solution proposed would additionally favour, he contends, other objectives of the Regulation. In particular, this would preserve the neutrality pursued by the legislator who, according to Recital 16, regarded the designation of the lex loci damni to be a “fair balance” between the interests of all the parties involved. Such compromise would be jeopardised were the victim’s family member systematically allowed to ground their claims on the law of the place of their habitual residence. The preferred reading would moreover ensure a close link between the matter and the applicable law since, while the place where the initial damage arose is usually closely related to the other components of liability, the same cannot be said, generally, as concerns the domicile of the indirect victim.

In the end, according to AG Wahl, Article 4(1) of Regulation No 864/2007 should be interpreted as meaning that the damages suffered, in their State of residence, by the close relatives of a person who died as a result of a traffic accident occurred in the State of the court seised constitute “indirect consequences” within the meaning of the said provision and, consequently, the “place where the damage occurred”, in that event, should be understood solely as the place in which the accident gave rise to the initial damage suffered by the direct victim.

On 10 September 2015, Advocate General Wahl delivered his opinion in Case C-350/14, Florin Lazar, regarding the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). Pursuant to this provision, a non-contractual obligation arising out of a tort is governed, as a general rule, by the law of “the place where the damage occurred”, irrespective of the country in which the event giving rise to the damage occurred “and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerns a fatal traffic accident occurred in Italy.

Some close relatives of the woman who died in the accident, not directly involved in the crash, brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

Before the Tribunal of Trieste, seised of the matter, the issue arose of whether, for the purposes of the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, the question was whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” under Article 4(1), or rather as an “indirect consequence of the event”, with no bearing on the identification of the applicable law.

According to AG Wahl, a “direct damage” within the meaning of Article 4(1) does not cover the losses suffered by family members of the direct victim.

In the opinion, the Advocate General begins by acknowledging that, under the domestic rules of some countries, the close relatives of the victim are allowed to seek satisfaction in their own right (iure proprio) for the pecuniary and non-pecuniary losses they suffered as a consequence of the fatal (or non-fatal) injury suffered by the victim, and that, in these instances, a separate legal relationship between such relatives and the person claimed to be liable arises and co-exists with the one already set in place between the latter and the direct victim.

In the Advocate General’s view, however, domestic legal solutions on third-party damage should not have an impact on the interpretation of the word “damage” in Article 4(1), which should rather be regarded as an autonomous notion of EU law. The latter notion should be construed having due regard, inter alia, to the case law of the ECJ concerning Article 5(3) of the 1968 Brussels Convention and of the Brussels I Regulation (now Article 7(2) of the Brussels Ia Regulation), in particular insofar as it excludes that consequential and indirect (financial) damages sustained in another State by either the victim himself or another person, cannot be invoked in order to ground jurisdiction under that provision (see, in particular, the judgments in Dumez and Tracoba, Marinari and Kronhofer).

That solution, the Advocate General concedes, has been developed with specific reference to conflicts of jurisdictions, on the basis of considerations that are not necessarily as persuasive when transposed to the conflicts of laws. The case law on Brussels I, with the necessary adaptation, must nevertheless be treated as providing useful guidance for the interpretation of the Rome II Regulation.

Specifically, AG Wahl stresses that the adoption of the sole connecting factor of the loci damni in Article 4(1) of the Rome II Regulation marks the refutation of the theory of ubiquity, since, pursuant to the latter provision, torts are governed by one law. The fact of referring exclusively to the place where the damage was sustained by the direct victim, regardless of the harmful effects suffered elsewhere by third parties, complies with this policy insofar as it prevents the splitting of the governing law with respect to the several issues arising from the same event, based on the contingent circumstance of the habitual residence of the various claimants.

The solution proposed would additionally favour, he contends, other objectives of the Regulation. In particular, this would preserve the neutrality pursued by the legislator who, according to Recital 16, regarded the designation of the lex loci damni to be a “fair balance” between the interests of all the parties involved. Such compromise would be jeopardised were the victim’s family member systematically allowed to ground their claims on the law of the place of their habitual residence. The preferred reading would moreover ensure a close link between the matter and the applicable law since, while the place where the initial damage arose is usually closely related to the other components of liability, the same cannot be said, generally, as concerns the domicile of the indirect victim.

In the end, according to AG Wahl, Article 4(1) of Regulation No 864/2007 should be interpreted as meaning that the damages suffered, in their State of residence, by the close relatives of a person who died as a result of a traffic accident occurred in the State of the court seised constitute “indirect consequences” within the meaning of the said provision and, consequently, the “place where the damage occurred”, in that event, should be understood solely as the place in which the accident gave rise to the initial damage suffered by the direct victim.