Flux des sites DIP

Rebecca Legendre (University of Paris 2 Panthéon-Assas) has just published a monograph on fundamental rights and private international Law based on her doctoral thesis: Droits fondamentaux et droit international privé – Réflexion en matière personnelle et familiale, Dalloz, 2020.

The author has provided the following abstract in English:

Fundamental rights put private international law to the test. First, the context in which private international law operates has evolved. Fundamental rights have created a better, closer, intertwining of the separate state legal orders and have achieved a higher protection for  the persons as they experience international mobility. If this evolution does not threaten, as such, the existence of private international law, it must be acknowledged that fundamental rights modify its analysis. Whereas the conflicts between legal orders are transformed into conflicts between values, the hierarchy of interests protected by private international law is replaced by a balancing of these interests. The solutions of private international law are thus disrupted by the enforcement of fundamental rights through litigation.  Proportionality is at the source of this disruption. Being a case by case technique of enforcement of fundamental rights, the influence of the proportionality test on private international is uneven. If the proportionality test is found to be overall indifferent to the methods of private international law, its main impact is on the solutions of PIL. The European courts are indeed prone to favour the continuity in the legal situations of the persons, over the defence of the internal cohesion of the state legal orders. As a consequence, private international law is invited to reach liberal solutions. The enforcement of fundamental rights through litigation must hence be clarified so as to maintain a measure of authority and predictability of the solutions of the rules of conflict of laws, international jurisdiction and recognition of foreign judgements. It is, on the one hand,  by methodologically dissociating the enforcement of fundamental rights from the public policy exception and, on the other hand, through an amendment to the proportionality test, that the balance of private international may hopefully be restored.

More details are available here.

Franco Ferrari (New York University Law School) has posted A New Paradigm for International Uniform Substantive Law Conventions on SSRN.

The abstract reads:

This paper posits that a paradigm shift has taken place in respect of the way the relationship between private international law and international uniform law conventions is understood. The author shows that recent international uniform law conventions evidence that their drafters do not consider the relationship to be an antagonistic one, but rather one of symbiosis.

The paper was published in the Uniform Law Review.

As indicated in a previous post, the Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIII Seminar entitled “Private International Law in the current international climate” from 18 to 20 November 2020 for the first time online. See here.

The deadline for the submission of papers was today (16 August 2020). Due to the difficult times we are all facing with the Covid-19 pandemic, the deadline has been extended to Sunday 6 September 2020.

AMEDIP is looking forward to receiving your contributions!

by Achim Czubaiko, Research Fellow at the Institute for German and Foreign Civil Procedural Law at the University of Bonn, Germany

In a decision of 22nd July 2020, the German Federal Supreme Court (Bundesgerichtshof) rendered its second opinion on the German Law to Combat Child Marriage of 2017,[1] which established a special ordre public-clause (public policy) for marriages concluded outside Germany.[2]

 

I. Facts of the Case[3]

The spouses, Lebanese citizens at the time, married in Lebanon in September 2001. At this moment, the bride was 16, nearly 17 years old, and the groom had recently turned 21. She had been living in Germany and acquired the German citizenship in 2002. In August 2002, the groom followed to Germany, where the spouses lived together from April 2003 to 2016 and got four children (born 2005, 2008, 2009, 2013). After separation the four children lived with her mother who had a new partner. The spouses were divorced according to Islamic law. On the occasion of a registration at the civil registry (Standesamt) in October 2018, the wife declared that she did not want to continue the marriage. Thereupon, the competent authorities filed a motion for the annulment of the marriage to the local court, as the wife had been a minor at the conclusion of her marriage. This motion was dismissed by the Local Court (Amtsgericht) Tempelhof-Kreuzberg as well as at the Higher Regional Court (Kammergericht) Berlin. The authorities lodged an appeal with the Federal Supreme Court (Bundesgerichtshof).

 

II. Decision of the German Federal Supreme Court

The Federal Supreme Court held that the decision to annul a marriage concluded by a minor, who has reached the age of 16, is subject to the (restricted) discretion of the court. Thereby, confirming the decision of the lower courts and upholding the marriage, it makes clear that the appropriate legal instrument for the wife to dissolve her marriage is divorce law.

This opinion is comprised by the general principles of legal interpretation underpinned by guiding constitutional considerations.

First of all, section 13 (3) n. 2 of the Introductory Law of the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) states that a marriage of a minor older than 16 years is voidable under German Law, even if the capacity of that particular fiancé to enter into marriage is governed by a different foreign law. As a result, non-German spouses must comply with at least two different legal systems concerning age limits. That points directly to the substantive provisions of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

Secondly, the court refers to the possibility of confirmation by the minor spouse after reaching full age according to section 1315 (1) n. 1 lit. a) BGB. However, such confirmation needs at least some basic awareness of the respective defects of the marriage to be effective. Since the wife, until her religious divorce, had no reason to doubt the validity of her marital status, none of her acts can be reasonably interpreted to constitute such a confirmation. The same goes for the hardship clause of section 1315 (1) n. 1 lit. b) BGB, because the court sees no proof of any exceptional circumstances resulting in hardship for the wife, if the decision were to uphold the marriage. Consequently, the annulment of the marriage is not prima facie precluded by the substantive law provisions of the German Civil Code.

Finally, the ratio decidendi of the opinion focuses on the question, whether the annulment of “child marriages” is mandatory if no exception applies. Section 1314 (1) n. 1 BGB provides that a marriage “may” (“kann”) be dissolved, if concluded contrary to the provision of section 1303 cl. 1 BGB, which basically reproduces the text set out in section 13 (3) n. 2 EGBGB. Apparently, the wording is not clear as to whether the court has discretion in the decision. In order to overcome that ambiguity, the Federal Supreme Court resorts to the doctrine of an interpretation in light of the constitution (verfassungskonforme Auslegung) as developed by the German Federal Constitutional Court (Bundesverfassungsgericht). This doctrine requires the courts to construe the existing law as far as possible in conformity with the German Basic Law (Grundgesetz). For the case in hand the Federal Supreme Court explained that a mandatory annulment would treat foreign marriages differently than marriages concluded solely under German Law and foreign marriages involving minors younger than 16 years, thereby resulting in a violation of Article 3 Basic Law (principle of equal treatment). Furthermore, the Court stressed that a mandatory annulment of the marriage is not always in the best interest of the minor spouse, who is protected by Art. 6 Basic Law.[4] Therefore, the court argues that in the light of the Constitution some leeway has to be reserved for the courts to deal with the particular circumstances in individual cases. Nevertheless, the application of judicial discretion must take in account the objective of the Law to Combat Child Marriage. As a consequence, annulment must be the “default” rule, while only in exceptional cases the judge may uphold a marriage. Within this margin, the law grants the court (a limited measure of) discretion.

 

III. Conclusion

The decision of the German Federal Court (Bundesgerichtshof) is in line with the efforts of German courts to mitigate the harsh effects of the Law to Combat Child Marriage.[5] The former status quo allowed a case-by-case analysis by the instrument of ordre-public. In this context, special attention should be given to the decision of 14th November 2018, Case No. XII ZB 292/16,[6] in which the court considered the parallel section 13 (3) n. 1 EGBGB unconstitutional, because it renders any marriage with a minor younger than 16 years void without reference to the individual situation and circumstances. Both decisions illustrate a consistent approach of the German Federal Supreme Court to the issue of Child Marriages.

The Press Release (available in German only) for the judgment can be found here (the full text is not yet published).

—

[1] Law to Combat Child Marriages (Gesetz zur Bekämpfung von Kinderehen) of 17 July 2017, BGBl. I 2017, 2429; see also von Hein, “Germany: Legal Consequences of the Draft Legislation on Child Marriage” on Conflict-of-Law.net of 24th March 2017, https://conflictoflaws.net/2017/germany-legal-consequences-of-the-draft-legislation-on-child-marriage/.

[2] See Antomo, ZRP 2017, 79 (82); Majer, NZFam 2017, 537 (541).

[3] As reported by the recent press release of the Federal German Supreme Court n. 108/2020 of 14th August 2018, https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2020/2020108.html?nn=10690868.

[4] One might think of situations in that the social status of the minor depends on being a married person or regarding non-beneficial matrimonial property issues, see Rath, “Underage, married, separated” on mpg.de of 9th March 2019, https://www.mpg.de/12797223/childmarriage-legislation-germany.

[5] See e.g. Antomo, ZRP 2017, 79 (82); Hüßtege, FamRZ 2017, 1374 (1380); Schwab, FamRZ 2017, 1369 (1373); for a more positive perception compare Majer, NZFam 2017, 537 (541).

[6] Press release of the Federal German Supreme Court n. 186/2018 of 14th December 2018, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&pm_nummer=0186/18.

The 1961 Apostille Convention has facilitated the circulation of public documents abroad for almost 60 years. The electronic Apostille Programme (e-APP) has supported the continued operation of the Convention since 2006, facilitating the electronic issuance and verification of millions of Apostilles worldwide. 

The COVID-19 situation may have restricted cross-border mobility, but individuals, families, and companies still need to have their public documents authenticated for use abroad. Current circumstances have seen many authorities and jurisdictions around the world adopt temporary workarounds, with some exploring more permanent legislative and technological solutions. 

The e-APP is no exception. In the last few months alone, Brazil, Bulgaria, the Dominican Republic, Venezuela, and the United States of America have all implemented new components of the e-APP. This is testament to the success of the programme and the continuing relevance of the Apostille Convention. These developments are particularly significant given the work being conducted ahead of the 12th International Forum on the e-APP and the next meeting of the Special Commission on the practical operation of the Apostille Convention, both of which are tentatively scheduled for 2021. 

For more information, see the HCCH News Item, available here.

HCCH Updates are published by the Permanent Bureau of the Hague Conference of Private International Law. 

Csongor István Nagy (University of Szeged), has posted on SSRN a paper titled The Reception of Collective Actions in Europe: Reconstructing the Mental Process of a Legal Transplantation, also published on the Journal of Dispute Resolution.

The European collective action is probably one of the most exciting legal transplantation comparative law has seen. Collective litigation, which U.S. law did not inherit from common law but invented with the 1966 revision of class actions, has been among the most successful export products of American legal scholarship. Today in the European Union, seventeen out of twenty–eight Member States have adopted a special regime for collective actions. At the same time, collective actions are intrinsically linked to various extraneous components of the legal system; hence, their transplantation calls for a comprehensive adaptation. The need to rethink class actions has not only generated a heated debate in Europe about whether and how to introduce collective actions, but resulted in Europe’s making collective actions in its own image, producing something truly European: a model of collective actions à l’européenne. This Article presents the process of developing the European collective action and its outcome. It represents the first attempt to give a trans-systemic account of European collective actions and to elucidate them in light of the peculiarities and idiosyncrasies of the mindset of European jurisprudence. Further, this Article gives an analytical presentation of the emerging European collective action model and demonstrates how it was shaped by Europe’s legal thinking and societal attitudes.

 

On the occasion of the 70th birthday of Herbert Kronke, Professor emeritus of the University of Heidelberg, President of the German Institution of Arbitration and Arbitrator (Chairman, Chamber Three), at the Iran US Claims Tribunal at The Hague, Former Secretary-General of UNIDROIT, a large number of friends and colleagues gathered to honour a truly outstanding scholar with essays, edited by Christoph Benicke, Professor at the University of Gießen, Germany, and Stefan Huber, Professor at the University of Tübingen, in an impressive volume of nearly 2000 pages with more than 150 contributions from all over the world, many of them in English – highly recommended to browse through state of the art thinking and research on national, international and transnational law:

 

 

I. Internationales Privat- und Verfahrensrecht sowie Völkerrecht

Moritz BRINKMANN und Thomas VOGT GEISSE

Qualifikation und Anknüpfung von Instrumenten der prozessvorbereitenden Aufklärung

Eckart BRÖDERMANN

Vom Drachen-steigen-Lassen – Ein internationales Jura-Märchen zum IPR/IZVR

Hannah L. BUXBAUM

Capital Markets and Conflict of Laws: from Mutual Recognition to Substituted Compliance

Dagmar COESTER-WALTJEN

Der gewöhnliche Aufenthalt eines Neugeborenen im Internationalen Familienrecht

Anatol DUTTA

Gleichlauf von forum und ius – ein legitimes Ziel des internationalen Privatrechts?

Dorothee EINSELE

Der Erfüllungsort von Geschäften in Finanzinstrumenten

Omaia ELWAN und Dirk OTTO

Staaten und Staatsunternehmen im internationalen Schieds- und Zivilverfahrensrecht

Cecilia FRESNEDO DE AGUIRRE

Private International Law in Uruguay: Present and Future

Angelika FUCHS

Zum Klägergerichtsstand bei Auslandsunfällen

Horacio A. GRIGERA NAÓN

UNIDROIT Principles as Proper Law

Pascal GROLIMUND und Eva BACHOFNER

Örtlicher Gerichtsstand bei Vereinbarung der internationalen Zuständigkeit

Wolfgang HAU

Der Drittstaatsansässige als „Fremder“ im Rahmen der europäischen justiziellen Zusammenarbeit in Zivilsachen

Jan VON HEIN

Kollisionsrechtliche Aspekte neuer Formen des Erwachsenenschutzes

Christian HEINZE

Anforderungen an eine Auslandsklage zur Hemmung der Verjährung nach § 204 Abs. 1 Nr. 1 BGB

Dieter HENRICH

Ehe zu dritt

Stephan HOBE

50 Jahre Mondlandung – 40 Jahre Mondabkommen

Norbert HORN

Abwehr der Haftung für internationale Staatsanleihen durch

gesetzgeberische Selbstbedienung? Eine Nachlese

Cristina HOSS

The times they are a-changin’:

Die Immunität internationaler Organisationen im Wandel?

Peter HUBER

Der Cordanzug von Amazon –

Hinweispflichten bei Rechtswahl und Gerichtsstandsvereinbarung

Abbo JUNKER

Die Rück- und Weiterverweisung (Renvoi) nach dem Inkrafttreten der Europäischen Güter- und Erbrechtsverordnungen

Peter KINDLER

Urteilsfreizügigkeit für derogationswidrige Judikate? –

Ein rechtspolitischer Zwischenruf auf dem Hintergrund der 2019 HCCH Judgments Convention

Christian KOHLER

Parteiautonomie, zwingendes Recht und loyale Zusammenarbeit in der EU

Juliane KOKOTT und Wolfgang ROSCH

Eingriffsnormen und ordre public im Lichte der Rom I-VO, der Rom II-VO, der EuGVVO und der EU-InsVO

Vesna LAZI? and Sonja A. KRUISINGA

Prorogation of Jurisdiction:

Validity Requirements and Methods of Interpretation

Stefan LEIBLE und Felix M. WILKE

Funktionale Überlegungen zur kollisionsrechtlichen Wahl nichtstaatlicher Regelwerke

Walter F. LINDACHER

Kautionslastfreistellung nach § 110 Abs. 1 ZPO – Die causa Liechtenstein

Dirk LOOSCHELDERS

Gleichgeschlechtliche Ehen im Internationalen Privat- und Verfahrensrecht

Maria Chiara MALAGUTI

Sovereign Debt Restructuring and Protection of Creditors in the European Union through the Lenses of Most Recent Case Law

Heinz-Peter MANSEL

Zum Anwendungsbereich des Art. 24 Nr. 2 EuGVVO beim verschmelzungsbedingten squeeze out und Drittklagen gegen sachverständige Prüfer

Dieter MARTINY

Private international law aspects of geo-blocking and portability

Felix MAULTZSCH

Forumsfremde Eingriffsnormen im Schuldvertragsrecht

zwischen Macht- und Wertedenken

Francesca MAZZA

Von lachenden Doppelerben und anderen Streithähnen – Für ein neues Selbstverständnis des IPR als Recht der internationalen Integration im privatrechtlichen Bereich

Ralf MICHAELS

A Global Restatement of Private International Law?

José Antonio MORENO RODRÍGUEZ

The new OAS Guide on International Contracts

Peter Arnt NIELSEN

A Global Framework for International Commercial Litigation

Yuko NISHITANI

Kulturelle Identität und Menschenrechte im Internationalen Privatrecht

Luca G. RADICATI DI BROZOLO

Competition between Cross-Border Dispute Settlement Mechanisms: Domestic Courts, Arbitration and International Commercial Courts

– Procedural and Substantive Options for Litigants –

Oliver REMIEN

Drittstaatliche Handelsvertreter und die Richtlinie 86/653 in den Fängen der nationalen selbstbeschränkten Sachnorm und der Eingriffsnormenregelung

des Art. 9 Rom I-VO – Bemerkungen zu EuGH Rs. C-507/15 – AGRO 

Herbert ROTH

Der Gerichtsstand der unerlaubten Handlung nach Art. 7 Nr. 2 EuGVVO und die Bedeutung des Erfolgsorts für den Ersatz reiner Vermögensschäden

Giesela RÜHL

Die Haager Grundregeln über Rechtswahlklauseln in internationalen Handelsverträgen: Ein effizienter Rahmen für den Wettbewerb der Rechtsordnungen im Vertragsrecht?

Haimo SCHACK

Das auf Altersgrenzen anwendbare Recht

Stephan W. SCHILL

Linking Private and Public International Law: the Example of Determining

Corporate Nationality in Germany’s Investment Treaty Network

Anja SEIBERT-FOHR

La fonction et le contenu de la dignité humaine en droit international

Dennis SOLOMON

Internationale Entscheidungskollisionen zwischen staatlicher Gerichtsbarkeit und privater Schiedsgerichtsbarkeit

Andreas SPICKHOFF

Gerichtsstände und grenzüberschreitender Autokauf im Internet

Michael STÜRNER

Politische Interessen und Internationales Privatrecht

Karsten THORN und Marian THON

Der Auslandsbezug im IPR

Luboš TICHÝ

Fremdes Recht im Revisionsverfahren (Eine rechtsvergleichende Skizze über die Revisibilität des ausländischen Rechts)

Marc-Philippe WELLER, Jan-Marcus NASSE und Laura NASSE

Klimaklagen gegen Unternehmen im Licht des IPR

Matthias WELLER

The HCCH 2019 Judgments Convention: New Trends in Trust Management?

Volker WIESE

Der kollisionsrechtliche Rahmen für die grenzüberschreitende Verbraucherstreitbeilegung

Joachim ZEKOLL

Die Anerkennungsfähigkeit von Punitive Damages – Bedarf nach einer Neubewertung?

 

II. Rechtsvergleichung und Rechtsangleichung

Jürgen BASEDOW

Soft Law for Private Relations in the European Union

Spyridon V. BAZINAS

Does the World Need Another Uniform Law on Factoring?

Klaus Peter BERGER

Herbert Kronke und die „Schleichende Kodifizierung“ des transnationalen Wirtschaftsrechts

Hans-Georg BOLLWEG

Die Übereinkünfte von Kapstadt: beschlossene und künftige Protokolle – Innenansichten aus deutscher Perspektive –

Michael Joachim BONELL

The New Version of the UNILEX Data Base on the Unidroit Principles and the CISG – Upgraded in Form and Enriched in Content

Richard M. BUXBAUM

Montesquieu and the Cape Town Convention: of Bankruptcy and Civil Procedure

Remo CAPONI

Nuovi strumenti processuali europei di tutela collettiva

Heather CLARK, Barbara CONCOLINO and Ana MORALES RAMOS

The Broader Legacy of the Iran-United States Claims Tribunal

Michel DESCHAMPS

The Impact of the Cape Town Convention on the Assignment of Receivables

Nina DETHLOFF

Vielfalt oder Einheit? Ein Blick auf den Prozess der Angleichung des Familienrechts in den USA

Bénédicte FAUVARQUE-COSSON

Les trois paradoxes des Principes d’Unidroit relatifs aux contrats du commerce international

Marcel FONTAINE

L’harmonisation du droit des contrats dans les pays de l’OHADA :

Souvenirs et Perspectives

Martin GEBAUER

Zu den methodischen Ursprüngen funktionaler Rechtsvergleichung – Sachnorm, Kollisionsnorm und Qualifikation

Stefan J. GEIBEL

La « fiducie-fondation » : une alternative aux fondations à personnalité morale ?

Roy GOODE

Creativity and Transnational Commercial Law: from Karkhemish to Cape Town

Bernd GRZESZICK

Diversity in and by Law – the Example of Federal and State Constitutions

Christian HATTENHAUER

„Das ist Grönländisches Recht, und ein sehr Natürliches!“

Burkhard HESS

Prozessökonomie und Judicial Efficiency – Verfahrensmaximen im Schnittpunkt zwischen nationaler Kodifikation und internationaler Maßstabsbildung –

Stefan HUBER

Überregionale Privatrechtsangleichung: weiches hard law als modernes Erfolgsrezept

Erik JAYME

Giovanni Pieraccini (1918 – Viareggio – 2017) und die Entwicklung des Kunsthandelsrechts

Tatjana JOSIPOVI?

MAC Protocol and Croatian Registered Security Rights in Mining, Agricultural and Construction Equipment

Thomas KEIJSER

Enforcement of Security Interests in Transnational Commercial Law: Balancing Tradition and Innovation

Catherine KESSEDJIAN

Prendre la transnationalité au sérieux

Eva-Maria KIENINGER

Grenzüberschreitende Kreditsicherung an Mobilien 2019: Pretoria, Wien, Brüssel

Caroline KLEINER

Cryptocurrencies as Transnational Currencies?

Jens KLEINSCHMIDT

Einheit und Vielfalt im romanischen Rechtskreis am Beispiel der Vertragsaufhebung

Souichirou KOZUKA

The Cape Town Convention and the “Fitness” to the Context: Considering the Features of Aircraft, Rail and Space Financing

Sebastian KREBBER

Die Verzahnung von mitgliedstaatlichem Recht und punktuellen unionsrechtlichen Vorgaben bei der Angleichung von Arbeitsrecht

innerhalb der europäischen Union

Karl KREUZER

Religiöse Gerichte und religiöses Recht im modernen Staat

Hans KUHN

Zurück zu den Wurzeln: Die privatrechtliche Erfassung von Token im liechtensteinischen und schweizerischen Recht

Matthias LEHMANN

Vom internationalen Kapitalmarktrecht zum globalen Finanzmarktrecht

Thomas LOBINGER

Rechtsdogmatik und Rechtsvergleichung im europäischen Betriebsübergangsrecht

Robert MAGNUS

Rückholansprüche – Eine eigenständige Anspruchskategorie

Ulrich MAGNUS

CISG and Africa

Gerald MÄSCH

One Size Fits All? – Eine Skizze zum Beweismaß im Transnational Commercial Law 

Ewan MCKENDRICK and Stefan VOGENAUER

Supervening Events in Contract Law: Two Cases on the Interaction of National

Contract Laws, International Uniform Law and ‘Soft Law‘ Instruments

Charles W. MOONEY, JR.

Herbert Kronke: The Unidroit Years and Beyond

Peter-Christian MÜLLER-GRAFF

Algorithmen im Kartellrecht

Wolfgang OEHLER

Zu Nutzen und Notwendigkeit eines internationalen Einheitskaufrechts in einem leisen Gelehrtendisput zwischen Ernst Rabel und Hans Großmann-Doerth

Charalambos (Haris) P. PAMBOUKIS

Fragments of Legal Discourse on the Future of Global Law

?aslav PEJOVI?

Development of Carrier by Sea Liability: from Roman Law to the Rotterdam Rules

Andreas PIEKENBROCK

Der (Rück-)Erwerb des Nichtberechtigten – rechtsvergleichende Überlegungen zu einem Klassiker des Sachenrechts

Giuseppe B. PORTALE

Vom Codice Civile des Jahres 1942 zu den (Re)Kodifikationen: Die Suche nach einem neuen Handelsrecht

Teresa RODRÍGUEZ DE LAS HERAS BALLELL

Embracing Technological Disruption in International Transactions: Challenges for Legal Harmonization

Boris SCHINKELS

Fehlerhafte Produkte aus Fernost auf Amazon Marketplace – Für eine Produkthaftung transnationaler Warenhausplattformen als Quasi-Importeur

Kurt SIEHR

Unidroit Übereinkommen von 1995 über gestohlene oder

rechtswidrig ausgeführte Kulturgüter – Europäischer Kulturgüterschutz 25 Jahre nach dem Unidroit Übereinkommen

Rolf STÜRNER

Die Mündlichkeit im Zivilprozess – ein europaweit anerkanntes Verfahrensprinzip mit Zukunft?

Lajos VÉKÁS

Über das europäische Verbrauchervertragsrecht und die Herausforderungen bei der Umsetzung

Wolfgang WIEGAND

Brexit – ein Fall für die clausula rebus sic stantibus?

 

III. Handelsschiedsgerichtsbarkeit und Investor-Staat-Streitbeilegung

Mir-Hossein ABEDIAN and Reza EFTEKHAR

Invoking the Ground of Public Policy in Refusing the Recognition and Enforcement of an Arbitral Award Embodying the Remedy of Specific Performance

Georges AFFAKI

Arbitration in Banking and Financial Disputes Deconstructed

Rosemary BARKETT

A Call for More Specificity in Proposed Ethical Codes of Conduct Regarding the Submission of False Evidence in International Arbitration

Massimo V. BENEDETTELLI

“Harmonization” vs. “Pluralism” in the 1958 New York Convention: Balancing Party Autonomy with State Sovereignty

George A. BERMANN

The Self-styled “Autonomy” of International Arbitration

Charles N. BROWER

Harmonizing the Way Forward: Herbert Kronke

Giuditta CORDERO-MOSS

Towards Lean Times for Arbitrability?

Nadia DARWAZEH and Sarah LUCAS

From Paris with Love or How the French Courts Fight International Arbitral Awards Tainted by Corruption and Money Laundering

Giorgio DE NOVA

Arbitrato internazionale con sede in Italia e Prague Rules 

Siegfried H. ELSING

The New Approach to ISDS – Improvement or Setback?

Axel FLESSNER

Investitionsschutz und Schiedsrecht – Ein schräges Verhältnis

Daniel GIRSBERGER

Von Chamäleons und Hybriden in der grenzüberschreitenden Bewältigung von Wirtschaftskonflikten

Thomas JOHNSON and Sean COLENSO-SEMPLE

Investment Agreements between Developed Countries: Unintended Consequences and Disenchantment

Athanassios KAISSIS

Awards Set Aside in Their Country of Origin. Two Incompatible Schools of Thought

Christoph A. KERN

The Flight from ISDS

Katharina LUGANI

Das lex fori-Prinzip im Schiedsverfahrensrecht – ein überholter Theorienstreit?

Peter MANKOWSKI

Die Schriftform des Art. II (2) UNÜ und ihr Transfer in die digitale Moderne 1475

Werner MELIS

70 Jahre Internationale Handelsschiedsgerichtsbarkeit

Patricia NACIMIENTO, Dirk OTTO and Nicola PORT

The New York Convention and the Rule of Law: Obligation of the Tribunal to Prevent Surprises for the Parties?

Thomas PFEIFFER

Erstreckung von Schiedsvereinbarungen auf Organwalter von Gesellschaften

Jörg PIRRUNG (†)

EuGH und internationale Investitions(schieds)gerichtsbarkeit

Dorothee RUCKTESCHLER und Tanja STOOSS

Die vorzeitige Beendigung der Schiedsrichtertätigkeit

Jürgen SAMTLEBEN

Internationale Handelsschiedsgerichtsbarkeit in Lateinamerika – Eine Skizze 1529

Maxi SCHERER

Article II(2) of the New York Convention is Dead! Long Live Article II(2)! 1543

Christoph SCHREUER

Pre-Investment Activities

Rolf A. SCHÜTZE

Die Dutco-Entscheidung. Probleme der Schiedsrichterbestellung in Mehrparteienschiedsverfahren

Jamal SEIFI

Globalization of the International Arbitral Process: Trends and Implications

Bruno SIMMA and Jan ORTGIES

Six Considerations before You Begin Interim Measures Proceedings in International Arbitration

David P. STEWART

Sovereignty, Natural Resources, Injunctions, and the Public Policy Exception to the Enforcement of Foreign Arbitral Awards

Chris THOMALE

Rechtsprechung als Öffentliches Gut – Über die gesellschaftlichen Kosten der Schiedsgerichtsbarkeit

Christian TIETJE and Andrej LANG

The (Non-)Applicability of the Monetary Gold Principle in ICSID Arbitration Concerning Matters of EU Law

Rolf TRITTMANN and Nikolaos TSOLAKIDIS

Looking into the Crystal Ball: The Future of Commercial Arbitration and European Union Law

Wolfgang WURMNEST

Die Durchsetzung von Art. 101, 102 AEUV durch Schiedsgerichte: Ein Spannungsfeld

 

IV. Ausländisches und deutsches Privat- und Wirtschaftsrecht

Necla AKDA? GÜNEY

Ein neues Rechtsinstitut im türkischen Aktienrecht: Die Klage auf Auflösung aus wichtigem Grund

Neil ANDREWS

Contract Law: Interpretation and Breach

Christian BALDUS

Labeo oder Das Geld, die Macht und der Tod

Christoph BENICKE

Haftung des Herstellers für Mangelfolgeschäden im Wege des Händlerregresses

Talia EINHORN

The Israeli Statute on National Book Price Maintenance – A Critical Evaluation

Frédérique FERRAND

L’avenir de la Cour de cassation française : réformer ou révolutionner ?

Holger FLEISCHER und Yannick CHATARD

Zur Reform des französischen Gesellschaftsrechts durch die Loi PACTE: Intérêt social – raison d’être – société à mission

Henry Deeb GABRIEL

From Formalism to Instrumentalism: The Inevitability of the Decline of the Concept of Title in the American Law of Personal Property Security Rights 1735

Attila HARMATHY

Credit

Hideki KANDA

Rethinking Property Rights in the Digital Age

Julia KLAUER

Die Bestellung von Pfandrechten an einen Sicherheitentreuhänder

Edgar MATYSCHOK

Europäischer Know-how-Schutz und deutsche Berufsfreiheit

Salvatore PATTI

Il testamento pubblico della persona anziana «vulnerabile»

Jorge SÁNCHEZ CORDERO

Patrimoine Culturel – Réflexions mexicaines

Uwe H. SCHNEIDER

Ad-hoc-Publizität im Konzern

Klaus-Peter SCHROEDER

Franz Anton Wilhelm Gambsjäger (1752–1816) – Ein Heidelberger Rechtslehrer im Umbruch der Epochen

Markus STOFFELS

Sprachrisiko bei Abschluss von Arbeitsverträgen mit ausländischen Arbeitnehmern

 

The publisher’s website is here.

 

 

 

Fernando Pedro Meinero

Recently, two criminal court decisions investigating the spread of fake news show the difficulty of determining the scope of national court jurisdiction over the internet.

In Argentina, Google was successful in reversing a decision that determined the deindexation of a person’s name from search engines hosted outside the country. In this case, the searcher associated a person’s name with crimes of possession of drugs and weapons, something that proved to be false. But in Brazil, Twitter and Facebook were forced to globally block the access of investigated people to their respective accounts. These people are investigated for participating in the dissemination of defamatory publications through these internet platforms against members of the Legislative and Judiciary.

Although these are decisions taken in the context of criminal cases, the issues raised by them reflect difficulties that also arise in civil cases. Both decisions were taken against companies that have branches in the countries where the courts exercise their jurisdiction – Argentina and Brazil, but they see differently the scope of that jurisdiction for the fulfillment of an order outside the territory.

On the one hand, the idea that the imposition of removing content or access implies an obligation to do so outside the national territory. Therefore, this decision, in order to produce effects outside the territory, should pass through the control mechanisms of international cooperation, since otherwise there would be an invasion of foreign jurisdictions. Not to mention the issues that arise from the point of view of the applicable law, according to what each State considers as a defamatory act and what is the limit of freedom of speech.

On the other hand, the understanding that this obligation to comply, imposed on a company with legal personality in the country, based on national legislation, must be fulfilled by that company, regardless of where and how it will become effective. In this way, speculations about an eventual violation of foreign sovereignty are eliminated, as well as with regard to laws that may eventually consider such publications to be non-defamatory and just an exercise of freedom of speech.

This divergence exposes, in essence, issues related to international jurisdiction, applicable law and international legal cooperation, the three traditional pillars of Private International Law, and the challenges that the ubiquity of internet impose to this field of study.

Case no. CPF 8553/2015/4 / CA3 “C., E. – provisional measure – 1st Panel of the Federal Criminal and Correctional Chamber – Argentina

Last June 16, 1st Panel of the Federal Criminal and Correctional Chamber – Argentina – Appeal in Case no. CPF 8553/2015/4 / CA3 “C., E. – provisional measure”, decided in favor of Google Inc. in a case concerning fake news.

The giant of the internet appealed a decision that extended a provisional measure determining the removal of the indexation of a content in the search engine. The content – proved to be fake – referred to an alleged arrest of Enrique Santos Carrió in Mexico for drugs and weapons possession. He is the son of Elisa Carrió, an important figure in Argentine politics, currently serving as National Deputy.

The questioned order extended the restriction to domains hosted outside the national territory, namely: www.google.com, www.google.com.es and www.google.mx.

In its allegations, Google argued that, by virtue of the principle of state sovereignty, the implementation of that measure would represent a violation of the sovereignty of other states, which would affect services subject to foreign law. The company understood that the restrictive measure should be directed at the sites that published the fake news, and not at the search engine that, according to the company, is a mere intermediary between the users and the publishers.

Also, according to Google, the removal of the contents of www.google.com would require the deletion of them on global servers, which would represent that an Argentine judge could decide about the information that can be accessed worldwide. In turn, it believes that this type of measure constitutes a serious threat to freedom of expression and the right to seek, receive and disseminate information freely.

The Court, granting the appeal, understood that the categorization of the news as fake is typical of the activity of the intervening court. However, these categorizations cannot be imposed on foreign jurisdictions, except through judicial cooperation mechanisms that do not violate their legal order. In its understanding “the core of this controversy concerns the principle of the territoriality of the law, which prevents the possibility of taking for itself the prerogative to prohibit the global dissemination of certain contents published by the press, whose disclosure would be prohibited under the local regulatory framework, but its circulation may be authorized in the context of another territory, according to the legal provisions and the categorization that this content could be granted ”(in free translation).

By this basis, the Chamber decided to leave the proposed precautionary measure ineffective, understanding that, if it so wishes, the judge a quo may request measures of judicial cooperation from foreign authorities and thus limit the dissemination of such news.

The full text of the decision can be found here (in Spanish).

Criminal Investigation no. 4781 from Distrito Federal – Brazil. Justice Alexandre de Moraes (Monocratic Decision), Supreme Federal Court, Brazil.

On the other hand, we find in Brazil a decision that went in a very opposite direction if compared to the previous one.

In the context of the Criminal Investigation no. 4781 from Distrito Federal – Brazil, the Supreme Federal Court investigates the existence of organized use of accounts on social networks to create, publish and disseminate false information (commonly known as fake news). On May 26, 2020, Alexandre de Moraes, Minister of the Supreme Federal Court, ordered the blocking of Facebook, Twitter and Instagram accounts belonging to a group of allies of Jair Bolsonaro, current President of Brazil. Such profiles would be used to commit crimes against honor in concurrence with criminal association (typified in the Penal Code in arts. 138, 139, 140 and 288) and crimes against national security (typified in Act 7.170/1983, in arts. 18, 22, 23 and 26). Specifically, the investigation refers to attacks to the Supreme Federal Court and the National Congress.

Some of those investigated, however, evaded the order, changing the location settings on the sites, as if they were publishing from other countries. Therefore, on 07/28/2020, the said magistrate provided that the aforementioned social networks must block for access from any IP (Internet Protocol), from Brazil or abroad. To guarantee compliance, he imposed a daily fine of R $ 20,000.00 for each unblocked profile.

Twitter announced that it would comply with that decision, though it would appeal.

Differently, Facebook Serviços Online do Brasil Ltda. stated that it would refuse to comply with that decision, alleging its illegality. Thus, it would maintain the access of those investigated and the possibility of posting by accessing to the accounts abroad, allowing the viewing of content in the national territory. Facebook argued: “We respect the laws of the countries in which we operate. We are appealing to the Supreme Federal Court against the decision to block the accounts globally, considering that Brazilian law recognizes limits to its jurisdiction and the legitimacy of other jurisdictions”.

In view of this declaration, Minister Alexandre de Moraes issued a new decision, which raised the daily fine to R $ 100,000.00 for unblocked profile.

In his reasons, the Magistrate understood that “like any private entity that carries out its economic activity in the national territory, the social network Facebook must respect and effectively comply with direct commands issued by the Judiciary regarding facts that have occurred or with their persistent effects within the national territory; it is incumbent upon him, if deemed necessary, to demonstrate its non-conformity by means of the resources permitted by Brazilian law”. Then, he understood that “the blocking of social network accounts determined in this case, therefore, is based on the necessity to stop the continuity of the disclosure of criminal manifestations, which, in particular, materialize the criminal offenses found in this investigation and which continue to have its illicit effects within the national territory, including the use of subterfuge permitted by the social network Facebook”. Finally, he argued that “the issue of national jurisdiction over what is posted and viewed abroad is not discussed, but the dissemination of criminal facts in the national territory, through news and commentary by accounts banned.”.

After this decision, Facebook informed the observance of the global blocking of the investigated accounts.

Fernando Pedro Meinero is Professor of Private International Law at the Universidade Federal do Pampa, RS – Brazil.

The Court decided that Article 1(1) of Regulation (EU) No 1215/2012 of Brussels Ibis Regulation must be interpreted as meaning that an action where the opposing parties are the authorities of a Member State and businesses established in another Member State, in which those authorities seek, primarily, findings of infringements constituting allegedly unlawful unfair commercial practices and an order for the cessation of such infringements and, as ancillary measures, an order for publicity measures and the imposition of a penalty payment, falls within the scope of the concept of ‘civil and commercial matters’ in that provision.

As AG Spzunar had proposed (see post on CoL), the Court held that

[t]o hold proceedings brought by a public authority are outside the scope of Regulation No 1215/2012 merely because of the use by that authority of evidence gathered by virtue of its public powers would undermine the practical effectiveness of one of the models of implementation of consumer protection envisaged by the EU legislature. In that model, in contrast to the one in which it is the administrative authority itself that determines the consequences that are to follow from an infringement, in circumstances such as those in the main proceedings the public authority is assigned the task of defending the interests of consumers before the courts.

The Court explained:

[26] The question posed by the referring court relates, in essence, to the determination of which court has jurisdiction to rule on actions brought by the authorities of a Member State against companies in another Member State that seek to identify and stop allegedly unlawful commercial practices of those companies that are aimed at consumers residing in the former Member State. (…).

[35] [T]he Court has repeatedly held that, although certain actions where the opposing parties are a public authority and a person governed by private law may come within the scope of Regulation No 1215/2012, it is otherwise where the public authority is acting in the exercise of its public powers (see, to that effect, judgments of 11 April 2013, Sapir and Others, C?645/11, EU:C:2013:228, paragraph 33 and the case-law cited, and of 12 September 2013, Sunico and Others, C?49/12,EU:C:2013:545, paragraph 34). (…).

[37] [I]n order to determine whether or not a matter falls within the scope of the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012, and, consequently, whether it comes within the scope of that regulation, it is necessary to determine the nature of the legal relationships between the parties to the action and the subject matter of the action or,alternatively, the basis of the action and the detailed rules applicable to it (see, to that effect, judgments of 14 October 1976, LTU, 29/76, EU:C:1976:137, paragraph 4, and of 28 February 2019, Gradbeništvo Korana, C?579/17, EU:C:2019:162, paragraph 48 and the case-law cited).

[41] [T]he Court has previously held that an action concerning the prohibition on traders using unfair terms, within the meaning of Directive 93/13, in their contracts with consumers, in so far as it seeks to make relationships governed by private law subject to review by the courts, falls within the concept of a ‘civil matter’ (see, to that effect, judgment of 1 October 2002, Henkel, C?167/00, EU:C:2002:555, paragraph 30). That case-law has subsequently been reiterated and extended more generally to cessation orders under Directive 2009/22 (see, to that effect, judgment of 28 July 2016, Verein für Konsumenteninformation, C?191/15, EU:C:2016:612, paragraphs 38 and 39).

[42] It follows that actions aimed at determining and stopping unfair commercial practices, within the meaning of Directive 2005/29, are also ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012.

[48] In the present case, it is apparent from the wording of Article 14(1) of the Law of 30 July 2013 and Article XVII.7 of the CEL that the Belgian authorities, in the same way as interested parties and consumer protection associations, can apply to the President of the rechtbank van koophandel (Commercial Court), subsequently the ondernemingsrechtbank (Companies Court), for a finding that the relevant national legislation has been infringed and for the making of a cessation order.

[49] It follows that the procedural position of the Belgian authorities is, in that regard, comparable to that of a consumer protection association.

A number of points were raised by the defendants against this characterization (e.g. no need to show an interest in bringing proceedings; acting in a general interest; use of evidence gathered by exercising public powers; ancillary publicity and penalty measures against the infringer), but none of them had success.

The full text of the judgment is here.

The Court decided, as had been proposed by AG Szpunar (see our post on the Opinion), that the first and fourth subparagraphs of Article 3(1) of the EIR(Recast) must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence.

MH and NI, a married couple who, since 2016, have been resident in Norfolk (United Kingdom) where they pursue an activity as employed persons, applied to the Portuguese courts to open insolvency proceedings against themselves. The court of first instance hearing the application declined international jurisdiction to hear that application on the ground that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of the main interests of the applicants in the main proceedings was their habitual residence, which was in the United Kingdom, and that consequently the courts of that Member State had jurisdiction to open insolvency proceedings. MH and NI lodged an appeal against the judgment given at first instance before the referring court claiming that that judgment was based on a misinterpretation of the rules laid down in Regulation 2015/848. They claim that the centre of their main interests is not their habitual residence in the United Kingdom, but rather it is in Portugal, the Member State where the sole immovable asset which they own is located and where all the transactions and all the contracts leading to their insolvency were conducted and concluded. Furthermore, there is no connection between their place of habitual residence and the events that led to their insolvency, which occurred entirely in Portugal. MH and NI therefore ask that the Portuguese authorities be recognised as having international jurisdiction.

Article 3 of the EIR (Recast) provides:

1.The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (‘main insolvency proceedings’). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.

The Court explained:

„[24] … [T]he relevant criteria for determining the centre of the main interests of individuals not exercising an independent business or professional activity are those connected with their financial and economic situation which corresponds to the place where they conduct the administration of their economic interests or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

[25] In the second place, it is necessary to clarify the scope of the presumption established in the fourth subparagraph of Article 3(1) of Regulation 2015/848. It follows from the actual wording of that provision, read in the light of the first subparagraph of Article 3(1) of that regulation, that individuals not exercising an independent business or professional activity are presumed, in the absence of proof to the contrary, to conduct the administration of their interests on a regular basis in the place of their habitual residence, since there is a strong possibility that that place corresponds to the centre of their main economic interests. It follows that, as long as that presumption is not rebutted, the courts of the Member States where that residence is located have international jurisdiction to open insolvency proceedings against that individual.“

[26] However, the fourth subparagraph of Article 3(1) of Regulation 2015/848 provides that that presumption applies only until there is proof to the contrary, and recital 30 of that regulation states that it should be possible to rebut that presumption, for example where the major part of the debtor‘s assets is located outside the Member State of the debtor’s habitual residence, or where it can be established that the principal reason for moving was to file for insolvency proceedings in the new jurisdiction and where such filing would materially impair the interests of creditors whose dealings with the debtor took place prior to the relocation.

[27] As the Advocate General stated in point 55 of his Opinion, the mere fact that circumstances referred to in that recital are present is not sufficient to rebut the presumption set out in the fourth subparagraph of Article 3(1) of Regulation 2015/848.

[28] Although the location of the debtor’s assets is one of the objective criteria, ascertainable by third parties, to be taken into consideration when determining the place where the debtor conducts the administration of his or her interests on a regular basis, that presumption may be reversed only following an overall assessment of all the objective criteria. It follows that the fact that the only immovable property of an individual not exercising an independent business or professional activity is located outside the Member State of his or her habitual residence is not sufficient on its own to rebut that presumption.“

The full text of the judgment is here.

By Saloni Khanderia (Jindal Global Law School, India) and Sagi Peari (Faculty of Law, University of Western Australia) in the Commonwealth Law Bulletin, available for download here

The outbreak of the COVID-19 pandemic will affect the performance of several contracts and is likely to increase the number of disputes before the courts. In agreements with a foreign element, the adjudication of the rights and liabilities will depend on the applicable law. Most legal systems have embraced the doctrine of party autonomy and, accordingly, permit the parties to expressly select the law to govern the disputes that arise from international contracts. India and Australia are no exception to this trend. In general, the courts in both the commonwealth countries have reported being influenced by judicial practices of one another to develop their own law. Despite their common-law roots, the interpretations attached to the doctrine of party autonomy in the choice of law have varied in some respects in these countries. The paper analyses the judicial trends on the subject and demonstrates the role that party autonomy will play in resolving international disputes where the performance has been affected by the eventualities such as the COVID-19 pandemic in India and Australia. The paper delves into the manner in which the courts in India and Australia may offer reciprocal lessons to each another to revolutionise the interpretation of the doctrine of party autonomy in the choice of law.

Dear Friends and Colleagues,

Kindly allow us to inform you about the following decisions we had to take in view of our conference, originally scheduled for 25 and 26 September 2020:

As the University of Bonn does not allow on site events of a larger scale until the end of the Winter Semester 2020/2021 (31 March 2021) in order to avoid any Covid-19 risks and as we are also concerned about the risks you would take while travelling to our place, we decided against an on site event.

Originally, we thought that in this case a video conference would be a good substitute. However, after months of video conferences, classes and meetings, all of us are probably feeling quite exhausted, and another round of two long days looking at the screen did no longer appear appealing to us, all the more since we have gathered such a distinguished group of speakers, with whom the audience would certainly like to interact directly, to say nothing of ourselves. This is why we decided, in close cooperation with the HCCH, to reschedule our Conference at Bonn University on Monday and Tuesday, 13 and 14 September 2021.

Additionally, in order to keep our topic connected with the period of the German Presidency of the EU Council and also in order to react to requests by a number of interested colleagues from far distances who would have difficulties travelling to Bonn, we decided to offer a Pre-Conference Video Roundtable “The HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation between the EU and Third States” on Thursday evening, 29 October 2020, 6 to 8 p.m. As things are standing at the moment, the Secretary General of the HCCH, Dr Christoph Bernasconi, will give us the honour to join us “live” and open this session, and an edited version of the Explanatory Report might be out at this point of time.

If you are interested in participating in the video conference, please register with sekretariat.weller@jura.uni-bonn.de. You will then receive an email with the access code to the video conference (via zoom) the day before the event.

We will inform you about the precise programme of our video round table in due time.

We do hope that you agree with our decisions. Looking forward to seeing you via video in October 2020 and on site in September 2021.

With best wishes from Bonn,

Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuß, Matthias Weller

Pravovedenie, an academic peer-reviewed legal journal published quarterly in Russia is calling for papers to be included in a special issue of the journal.

The special issue will be about Ensuring the Best Interests of the Child in International Family Procedures. Contributions should deal with the cooperation of States in ensuring the implementation of international legal instruments regulating relations to protect the best interests of the child, as well as in evaluating the necessary efforts to be made by States parties to international treaties to remove obstacles to the implementation of international treaties in the field of international family law.

Submissions are expected by 1 June 2021 at the latest, but the editors encourage interested authors to notify their intention to contribute to the special issue in advance.

A detailed description of the topic of the special issue, together with practical information on submissions, can be found here.

The Court of Justice of the European Union has delivered its ruling in the Novo Banco case (C‑253/19) on 16 July 2020.

The issue before the Court was the determination of the center of main interests (COMI) of individuals not exercising an independent business or professional activity under the Insolvency Regulation, and thus the jurisdiction of the courts of the Member States to open insolvency proceedings against such individuals.

Article 3(1) of the Insolvency Regulation provides that the COMI of such individuals is presumed to be at their place of habitual residence. The issue was more precisely how this presumption could be rebutted.

In this case, the individuals were English residents who were employed in Norfolk. Yet, they claimed that the centre of their main interests was not their habitual residence in the United Kingdom, but rather in Portugal, the Member State where the sole immovable asset which they own was located and where all the transactions and all the contracts leading to their insolvency were conducted and concluded. Furthermore, there was no connection between their place of habitual residence and the events that led to their insolvency, which occurred entirely in Portugal.

The Court ruled:

28 Although the location of the debtor’s assets is one of the objective criteria, ascertainable by third parties, to be taken into consideration when determining the place where the debtor conducts the administration of his or her interests on a regular basis, that presumption may be reversed only following an overall assessment of all the objective criteria. It follows that the fact that the only immovable property of an individual not exercising an independent business or professional activity is located outside the Member State of his or her habitual residence is not sufficient on its own to rebut that presumption.

29 In the present case, the applicants in the main proceedings also argue before the referring court that Portugal is not only the Member State where their only immovable property is located but also the Member State where all the transactions and all the contracts leading to their insolvency were conducted and concluded.

30 In that regard, although the cause of the insolvency is not, as such, a relevant factor for determining the centre of the main interests of an individual not exercising an independent business or professional activity, it nevertheless falls to the referring court to take into consideration all objective factors, ascertainable by third parties, which are connected with that person’s financial and economic situation. In a case such as the one in the main proceedings, as was observed in paragraph 24 above, that insolvency situation is located in the place where the applicants in the main proceedings conduct the administration of their economic interests on a regular basis or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

31 In view of all of the foregoing factors, the answer to the question is that the first and fourth subparagraphs of Article 3(1) of Regulation 2015/848 must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence. 

This post is authored by Ana Coimbra Trigo (Associate Lawyer at PLMJ Law Firm; PhD Candidate at NOVA Lisbon Univ.; LL.M. China-EU School of Law (China Univ. Political Science and Law, conferred by Univ. Hamburg); Law Degree from Univ. Coimbra), with contributions from Gustavo Moser.

Today, on 7 August 2020, Decree 5/2020 of the Council of Ministers approved the United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention), making Portugal its newest signatory state (link to the official publication here). The Convention will enter into force, in respect of Portugal, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of approval.

 

Portugal joins the Convention alongside two historic moments. First, this is the year that marks the 40th anniversary of the Convention, and second, the current Secretary General of the UN, António Guterres, is a Portuguese national.

 

Portugal was in fact active in the preparatory works at UNCITRAL and present at the diplomatic conference that adopted the CISG in 11 April 1980. Although “arriving late to the party”, it is foreseen that the CISG will be advantageous for Portugal, both at the legal and commercial level.

 

First, as is well known, the CISG provides a uniform and neutral regime for cross-border transactions regarding carriage of goods, and related dispute settlement. The text is based on a common set of remedies inspired by the principle of favor contractusand structured to maximize economic benefits of the contract.

 

Second, the CISG provides for overall legal certainty, especially in cases where there is and there is not a (valid) choice of law. It is drafted in plain language and this is particularly advantageous for small and medium-sized companies.

 

Third, scholars highlight the balanced system of solutions included in the Convention that allowsefficiencies in transaction costs and thus more competitive prices for imported and exported goods. This is beneficial for overall trade, but from a Portuguese viewpoint, will also allow Portuguese final users to get more value for their money, and Portuguese exporters to sell their products at lower prices in global markets.

 

Fourth, the above benefits are emphasized when one considers that the CISG has been ratified already by93 states. This includes 24 of 27 EU Member-States (excluding UK, Ireland, Malta and not for long Portugal) and also the United States of America, Canada, Brazil, China, Japan and South Korea. Some of these countries are relevant trade partners of Portugal.

 

Lastly, Portugal will now benefit from 40 years of scholarly writings and decisions for guidance, including in the Portuguese language, since Brazil recently became the first Lusophone country to adopt the CISG.

 

The increased availability of materials on the CISG in Portuguese may boost capacity building and contribute to the affirmation of the CISG in other Lusophone countries.

 

Scholars and diplomats have clamoured about this potential accession over the years, so we anticipate that this will be viewed positively by the local and international legal community.

Moreover, this can be seen as strategic boost for Portugal in international trade in this demanding international context.

Shawn He reported recently on a Chinese judgment refusing the declaration of enforceability of an arbitral award issued by the Independent Film & Television Alliance Arbitration Court.

The Tianjin Intermediate People’s Court dismissed the application on two grounds: No standing to be sued of the Chinese company, and notification vices.

One point which should be highlighted is the duration of the proceedings: The application was filed on March 2018, and the judgment (in first instance) was rendered on May 2020…

 

On 16 July 2020, the Government of Portugal decided to start the process whereby Portugal will, in due course, become a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Today, the Convention is internationally in force for 93 States. Once in force for Portugal, it will be binding on all the current members of the European Union, with the exception of Ireland and Malta.

by Professor Dr Robert Magnus

The chair of civil law III at the Faculty of law and economics of the University of Bayreuth offers a position as a

Doctoral researcher / PhD Student (m/w/d)

which should be filled as soon as possible. The position is limited for a period of two years and is preferably granted for the purpose of preparing a doctoral thesis. The position is part-time (50 % of regular working hours) with the salary and the benefits of a public service position in the state of Bayern, Germany (TV-L E13, 50 %).

The Doctoral researcher will be working in the department of law. His main task will be to assist the research projects of his supervisor in the area of civil law, civil procedural law, arbitration law, conflict-of-laws and comparative law. The position includes the possibility to prepare a doctoral thesis. Applicants should fulfill the requirements to prepare a doctoral thesis under the doctoral degree regulation of the University of Bayreuth. It is expected that the first state examination is accomplished at least with the grade “vollbefriedigend”. The position additionally requires the Applicant to be proficient in German.

Furthermore, the Applicant should be interested in the areas of expertise of the supervisor; preferably there is already knowledge in these fields. Desirable are good skills in English and IT-expertise.

Applicants with a disability as described in SGB IX (§ 2 Abs. 2, 3) will be preferred in case of equal qualifications. The advertising chair of civil law as well as the University of Bayreuth are interested in increasing the quota of women; therefore, we strongly encourage female candidates to apply.

Please send your application with the usual documents (especially CV, Abitur certificate, transcript of records, State Examination certificate(s) via email (preferably in a pdf file) to Ms. Birgit Müller, chair of civil law III at the Faculty of Law and economics, University of Bayreuth, 95440 Bayreuth, Tel.: +49 (0)921 – 55-6071, E-Mail: ze3.sekretariat@uni-bayreuth.de.

The French Committee for private international law will hold a conference on the codification of private international law in the afternoon of 9 October 2020, in Paris.

The first speaker will be Geraldine Gazo, who practices in Monaco, and who will present the recent law on private international law adopted by Monaco in 2017.

The second speaker will be Justice Jean-Pierre Ancel, who is a former president of the first civil Chamber of the Cour de cassation, and now presides over a working group on the codification of French private international law.

The exact time and location are to be announced on the website of the Committee.

Woo-jung Jon is the author of Cross-border Transfer and Collateralisation of Receivables – A Comparative Analysis of Multiple Legal Systems, published by Hart Publishing.

Legal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman–Germanic jurisdictions and French–Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.

More information here.