Flux des sites DIP

Does a Member State have any obligation at all, either generally or in case-specific circumstances, to provide guidance as to when a product derived from Waste lubricating oil – ‘WLO’ has or has not achieved end-of-waste status through either re-refining or reprocessing? And in the case at issue, was the UK’s Environment Agency correct in its classification of the treated WLO as still being waste, specifically: did the Agency unfairly favour waste oils recovery over material recycling?  These were the issues in [2018] EWHC 1983 (Admin) Protreat v Environment Agency in which Williams J evidently looked primarily to EU Waste law, the Waste Framework Directive 2008/98 in particular.

Among the many points of factual discussion is a review of the Member States’ duties under the Waste hierarchy: Protreat argue (at 67) that the Environment Agency, ‘as an emanation of the State, is under a duty proactively to direct its resources and use its powers to seek to ensure the result required by the Waste Directive. It is submitted, too, that the result required includes “the management of waste in accordance with the waste hierarchy set out in Article 4 of the Waste Directive”. According to the Claimant, this requires the Defendant to perform its functions, so far as possible, to ensure that waste oil treatments higher in the waste hierarchy “are more attractive than treatments lower in the hierarchy”‘.

Williams J is entirely correct at para 71 ff to hold that the hierarchy does not imply that its strict application in all circumstances is not always justified: indeed the hierarchy instruct first and foremost the best environmental outcome in specific circumstances.

That in and of itself makes regulatory guidance difficult to issue – and EU law in general does not impose any obligation to do so: at 81: ‘the terms of Article 6 and, in particular, paragraph 4 thereof, do not support the contention that the Directive imposes upon Member States a specific obligation to provide end-of-waste guidance whether in relation to the products of re-refining or the products of any other process of conversion of waste. The power to decide end-of-waste status “case by case in accordance with the case-law” would, no doubt, permit a regulator to issue guidance. I am not persuaded, however, that this language can be the vehicle for the creation of a specific obligation to issue guidance.’ (Sir Wyn also referred to Article 4 and Article 21 to support that analysis).

Reference to Luxembourg was requested but declined.

Geert.

When is a court ‘seized’ under EU civil procedure /private international law? The question is highly relevant in light of the application of the lis alibi pendens principle: the court seized second in principle has to cede to the court seized first. Williams J in [2018] EWHC 2035 (Fam) Gondrom v Gondrom notes the limited attempt at harmonisation under EU law and hence the need for the lex fori to complete the procedural jigsaw. [Please note whan I wrote the post, the judgment was up on BAILII – but when I posted it it was no longer so included – I hope it is back up by the time readers see this post].

On 8 July 2016 Mrs Gondrom issued a divorce petition out of the Bury St Edmunds Divorce Unit seeking a divorce from Mr Gondrom). On 16 August 2016 the husband issued a divorce petition against the wife out of the Munich Family Court. On the 22 August 2016 the husband filed an acknowledgement of service to the wife’s petition asserting that the German court was first seized because it was ‘not accepted England is first seized, owing to failures to comply with art. 16 and 19 of Council Regulation (EC 2201/2003) and relevant articles of the EC Service Regulation (EC 1393/2007).

At issue were two considerations: whether seizure of the English courts had been effected; and whether the wife’s issuing of the petition on 8 July 2016 an abuse of process on the basis that the wife did not at that time consider the marriage to have irretrievably broken down but was issuing a petition simply to secure the English jurisdiction in the event that a divorce was needed? This latter element amounts to disciplining a form of fraus, on which I have reported before – eg here that there is very little EU law.

In Regulation ‘Brussels IIa’ (2201/2003) – concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, as in the other Regulations, ‘seising of a Court’ is defined as:

1. A court shall be deemed to be seised: 

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

These ‘steps required’ are not further defined under EU law and hence rest with national law. Under relevant English law, Williams J held that the husband was aware of the wife’s petition before it was validly served on him, and that this was enough for the English courts to have been validly seized.

Geert.

The University of Antwerp is seeking a PhD candidate for their research group “Personal Rights and Property Rights”. Although you might not guess so at first sight, Private International Law is part of this research group, which focuses on private law and its international aspects.

Candidates should submit a research proposal, which should fit into the research of the group (see https://www.uantwerpen.be/en/research-groups/personal-rights-and-property-rights/). The deadline is 30 september 2018.

The successful candidate will be funded for a four-year period, from 1 February 2019 to 31 January 2021.

For more information and the application procedure, see https://www.uantwerpen.be/en/jobs/vacancies/ap/2018bapfrechex262/

As Williams J notes at 5, [2018] EWFC 54 Akhter v Khan is not about

‘whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.‘

The Guardian explain here why it is not that simple, and Ralf Michaels has analysis here. In essence (the remainder of this para is largely based on Ralf’s text), many muslims in the UK only perform Nikah and not a civil ceremony. The latter is firmly required under English law (indeed under the law of many European countries; where unlike in the English example, a religious ceremony must not even double up as a civil one, and the latter must always precede the religious one). Nikah hitherto had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid.

Williams J however declared the marriage at issue void under the Matrimonial Causes Act 1973. The wife was granted a decree of nullity. This has extremely relevant consequences in terms of ‘matrimonial’ property, and maintenance obligations, including those vis-a-vis the children. The Court’s analysis of human rights law is extensive, including of course with the ECHR gateway (via the Human Rights Act 1998) and the UNRC: the UN Convention on the Right of the Child. In this respect Williams J’s analysis is not unlike that of classic ordre public considerations: which are always case-specific and take into account the hardship caused to the individuals involved, were a foreign legal concept not recognised in the forum.

The Court has set an important precedent – but like all precedent of course there is case-specificity (the length of the lived marriage, the children,…

Of note is that applicable law in the case was firmly English law. Recognition of the marriage as such in the UAE did play a role in the judge’s assessment.

All in all an important case viz the discussion on multiculturality and family law in Europe.

Geert.

A talaq divorce is rarely knocking at the door of Greek courts. A court in Thessaloniki dismissed an application for the recognition of an Egyptian talaq, invoking the public policy clause, despite the fact that the application was filed by the wife. You can find more information about the case, and check my brief comment here.

What puzzles me though is whether there are more jurisdictions sharing the same view. Personally I don’t feel at ease with this ruling for a number of reasons. But prior to that, a couple of clarifications:

1. This case bears no resemblance to the Sahyouni saga. The spouses have no double nationality: The husband is an Egyptian, the wife a Greek national.
2. There was no back and forth in their lives: they got married in Cairo, and lived there until the talaq was notarized. Following that, the spouse moved to Greece, and filed the application at the place of her new residence.
3. Unlike Egypt, Greece is not a signatory of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.
4. There is no bilateral agreement between the two countries in the field.

I’m coming now to the reasons of my disagreement with the judgment’s outcome.

1. The result is not in line with the prevalent view in a number of European jurisdictions: From the research I was able to conduct, it is my understanding that Austria, Germany, France, Italy, Spain, the Netherlands, Norway, and Switzerland, do not see any public policy violation, when the wife takes the initiative to apply for recognition of the talaq.
2. The reasoning of the court is a verbatim reiteration of an Athens Court of Appeal judgement from the ‘90s. It reads as follows: Solely the recognition of such an act would cause profound disturbance to the Greek legal order, if its effects are to be extended and applied in Greece on the basis of the Egyptian applicable rules. What is actually missing is the reason why recognition will lead to profound disturbance, and to whom. Surely not to the spouse, otherwise she wouldn’t file an application to recognize the talaq.
3. It should be remembered that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination. Given the consent of the spouse, I do not see who is going to feel disturbed.
4. Recognition would not grant carte blanche for talaq divorces in Greece. As in other jurisdictions, Greece remains devoted to fundamental rights. What makes a difference here is the initiative of the spouse. In other words, the rule remains the same, i.e. no recognition, unless there’s consent by the wife. Consent need not be present at the time the talaq was uttered or notarized; it may be demonstrated at a later stage, either expressly or tacitly. I guess nobody would seriously argue that consent is missing in the case at hand.
5. Talking about consent, one shouldn’t exclude an ex ante tacit agreement of the spouses for financial reasons. It has been already reported that all remaining options for a spouse in countries where Sharia is predominant are much more complicated, time-consuming, cumbersome, and detrimental to the wife. Take khul for example: It is indeed a solution, but at what cost for the spouse…
6. Last but not least, what are the actual consequences of refusal for the spouse? She will remain in limbo for a while, until she manages to get a divorce decree in Greece. But it won’t be an easy task to accomplish, and it will come at a heavy price: New claim, translations in Arabic, service in Egypt (which means all the 1965 Hague Service Convention conditions need to be met; Egypt is very strict on the matter: no alternative methods allowed!); and a very careful preparation of the pleadings, so as to avoid a possible stay of proceedings, if the court requires additional information on Egyptian law (a legal information will most probably double the cost of litigation…).

For all the reasons aforementioned, I consider that the judgment is going to the wrong direction, and a shift in Greek case law is imperative, especially in light of the thousands of refugees from Arab countries who are now living in the country.

As I mentioned in the beginning, any information on the treatment of similar cases in your jurisdictions is most welcome.

Dear readers,

Conflictoflaws.net has been around for 12 years by now. It has developed into one of the most relevant platforms for the exchange of information and the discussion of topics relating to conflict of laws in a broad sense. And while the world has changed a lot during the past 12 years the look of conflictoflaws.net has basically remained the same. Today this is going to change:

We are happy to announce that www.conflictoflaws.net has received a (slightly) new design!

As you will see, we have tried to keep the overall simple appearance of the blog while giving it a slightly more modern touch. As regards the structure, however, there is one major change. As of today, posts will come in two different categories: “views” and “news”. Under “views” posts with independent content (case notes, comments, etc.) will be displayed“. Posts under “news” will convey all sorts of information (relating to, for example, conference announcements, book releases, job vacancies, call for papers, etc.).

We hope that you will like the new design and find the new structure useful. Should you have any comments or experience problems please get in touch. Needless to say that the same holds true, if you wish to share “views” and “news”!

Best wishes and happy reading!

The editors

[2018] EWHC 1985 (TCC) SRCL Limited is a procurement case and therefore generally outside the remit of this blog. However it is a useful reminder of the common law’s approach to citing academic authority:

Fraser J discusses it at 180 ff: ‘The historic common law convention was that academic views could only be cited as authority in courts if the author was dead, and if the work in question had achieved a level of respectability in any event. There was also, perhaps, a third requirement (although it could be seen as a subset of the second) that the author themselves had to have been either a judge or practitioner. Professor Arrowsmith is very much alive, and has a high reputation as an academic in the field of procurement law.’

Reference is made to Lord Neuberger’s 2012 lecture “Judges and Professors – Ships passing in the night?”, including discussion of what may have been a compelling reason for the rule or convention: at 181: ‘A dead author cannot change their mind. Although Lord Neuberger was not convinced that this was a good reason, it does have the merit of certainty.’

At 182: ‘The conclusion of Lord Neuberger is clear however – the convention has now been eroded, and there is a dialogue between judges and academics to the benefit of all. Textbooks of living authors are regularly cited in court – they do not have the same status as judgments under the doctrine of stare decisis, but they are persuasive and the views of an academic such as Professor Arrowsmith do have weight in this arena.’

When I earlier shared the judgment on Linked-in, one of my contacts justifiably mentioned that the love (lost) between academia and the courts in the UK might be mutual: the suggestion was that too much scholarly analysis disregards practice implications too readily.

By way of conclusion, as professor Arrowsmith herself noted, ‘The fact that I am, fortunately, still alive, was just one of the important issues discussed in a recent High Court case on procurement. …For the record, it was decided that my views are highly persuasive – but not as important as they might be if I were dead.’

Geert.

Issue 3 of the Journal of European Private Law (Zeitschrift für Europäisches Privatrecht) has just been released. It contains the following articles:

Robert Magnus: Der grenzüberschreitende Bezug als Anwendungsvoraussetzung im europäischen Zuständigkeits- und Kollisionsrecht

Under Article 81 (1) TFEU, the EU competence for judicial cooperation in civil matters requires ‘cross-border implications’. The questions when and how such implications can be assumed and whether or not reliable principles can be established in this context, are the subject of this article.

Pedro del Olmo: Obligations, Contracts and ‘Performance by Third Persons’: A case of False Friends in the PECL and the DCFR

What the civil law tradition calls “payment by a third party” is based on the simple idea that almost anyone can fulfil the obligation of another and by doing so free the debtor from her duty. The new approaches adopted in the DCFR regarding performance by a third party are unclear and contradictory. This paper demonstrates that many difficulties in this area can be avoided if the distinction between actual performance by a third party and “accord and satisfactions” (datio in solutum) by a third party is maintained.

Susanne Zwirlein: „Mortuus redhibetur“ permansit

“Mortuus redhibetur” is not only a legal rule handed down in the Digest, but also a legal shorthand for the question of how the destruction of a defective object of sale through no fault of the buyer affects the right to termination and the consequences of its exercise. This article examines this question in a comparative historical way reviewing the solutions in Roman, English and German law and the respective channels of reception.

Ádám Fuglinszky: The Conceivable Ways and Means of the Further Harmonization of European Product Liability Law – Mandatory Direct Claim against the Producer for Repair or Replacement?

This article examines the advantages and disadvantages of mandatory direct remedies for repair or replacement against manufacturers. It then compares models regulating such claims employed by Member States and outlines a basis for future European harmonization.

Lorenzo Bertino: Marriage and family: Civil Unions in Italy

The Italian legislature recently introduced a legal framework for the regulation of homosexual partnerships, the content and constitutional significance of which is outlined in this article. It is argued that this “Civil Union” is significantly different from marriage.

The aim of this two-day conference is to bring together representatives of Small States, government officials, academics and NGOs, as well as lawyers who are involved in dispute resolution in or for Small States (defined as those states with a population of 1.5 million or less). Conference participants will explore how (international) environmental dispute resolution can be used to combat climate change or environmental degradation and will discuss how Small States can obtain reparation for suffered environmental and/or climate change damage.

Many Small States are small island states. Climate change presents unique challenges to those states in particular. The difficulties that all countries face in effectively coping with the impact of climate change or environmental issues are exacerbated in Small (island) States because of their geographical area, isolation and exposure.

The conference is free of charge. Registration and programme can be found here.

In England, almost all married Muslim women have had a nikah, a religious celebration. By contrast, more than half of them have not also gone through a separate civil ceremony, as required under UK law. The often unwelcome consequence is that, under UK law, they are not validly married and therefore insufficiently protected under UK law: they cannot claim maintenance, and they cannot get a divorce as long as the marriage is viewed, in the eyes of the law, as a nullity.

The government has tried for some time to remedy this, under suspicious gazes from conservative Muslims on the one hand, secularists on the other. A 2014 report (the ‘Aurat report’), which  demonstrated, by example of 50 cases, the hardships that could follow from the fact that nikahs are not recognized, found attention in the government party. An independent review into the application of sharia law in England and law, instigated by Theresa May (then the Home Secretary) in 2016 and published earlier this year, recommended to ensure that all Islamic marriages would also be registered; it also recommended campaigns for increased awareness.

Such steps do not help where the wedding already took place and has not been registered. A new decision by the High Court brings partial relief. Nasreen Akhter (who is a solicitor and thus certainly not an uneducated woman ignorant of the law) asked to be divorced from her husband of twenty years, Mohammed Shabaz Khan. Khan’s defense was that the marriage, which had been celebrated as a nikah in west London, existed only under Islamic, not under UK law, and therefore divorce under UK law was not possible. Indeed, up until now, the nikah had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid. However, drawing at length on Human Rights Law, it declared the marriage void under sec 11 of the Matrimonial Causes Act 1973 and granted the wife a decree of nullity. This has important consequences: Unlike a non-marriage, a void marriage allows a petitioner to obtain financial remedies.

The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision relies on the specific facts; certainty before the law will still be reache donly through registration of the marriage.

The decision is here.

In [2018] EWHC 662 (Comm) Banca Turco Romana, Popplewell J explained his reasons for discontinuing ex parte freezing orders, with reference among others to C-391/95 Van Uden. At 22-23 he discusses the not entirely clear application of the jurisdictional rules of Brussels I, which indicated that that Regulation was engaged either via Article 2 (now 4: domicile in Romania) or 4 (now 6): residual Member State (here: Romanian) jurisdictional rules, which go on to be sheltered under the Brussels I Regulation.

At 20 he refers to the earlier case of ICICI Bank UK plc v Diminco NV [2014] EWHC 3124 (Comm) in which he summarised the English Courts’ requirements for the issuing of ex parte freezing orders where the defendant is neither resident within the jurisdiction nor someone over whom the court has or would assume in personam jurisdiction for some other reason:

‘the court will only grant a freezing order extending to foreign assets in exceptional circumstances. It is likely to be necessary for the applicant to establish at least three things:

(a)        that there is a real connecting link between the subject matter of the measure sought and the territorial jurisdiction of the English court in the sense referred to in Van Uden;

(b)        that the case is one where it is appropriate within the limits of comity for the English court to act as an international policeman in relation to assets abroad; and that will not be appropriate unless it is practical for an order to be made and unless the order can be enforced in practice if it is disobeyed; the court will not make an order even within the limits of comity if there is no effective sanction which it could apply if the order were disobeyed, as will often be the case if the defendant has no presence within the jurisdiction and is not subject to the in personam of the English court;

(c)        it is just and expedient to grant worldwide relief, taking into account the discretionary factors identified at paragraph 115 of the Motorola case. They are (i) whether the making of the order will interfere with the management of the case in the primary court, e.g. where the order is inconsistent with an order in the primary court or overlaps with it; (ii) whether it is the policy in the primary jurisdiction not itself to make to make worldwide freezing/disclosure orders; (iii) whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting, inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located; (iv) whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order; and (v) whether in a case where jurisdiction is resisted and disobedience may be expected  the court will be making an order which it cannot enforce.”

In Banca Turco discontinuation was ultimately mostly based not on any slip-up of jurisdictional basis, but rather on the absence of full disclosure by the requesting party: at 45: ‘The importance of the duty of disclosure has often been emphasised.  It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness.  Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy.  If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make.  It is a duty owed to the court which exists in order to ensure the integrity of the court’s process.  The sanction available to the court to preserve that integrity is not only to deprive the applicant of any advantage gained by the order, but also to refuse to renew it.’

Geert.

The Law Department of the University of Verona (Italy), in cooperation with the Ph.D. School of Law and Economics and the European Documentation Centre, welcomes submission to the #TILT Young Academics Colloquium, to be held on 23-24 May 2019. It is the first meeting involving early career scholars on trending international and EU law topics to be organised in the unique location of the city of Verona.

The Colloquium falls within the activities of the research project “Trending International Law Topics – #TILT”, supervised by Maria Caterina Baruffi (Full Professor of International Law, University of Verona), which is aimed at deepening the investigation and fostering scientific discussion on trending topics in international and EU law, including also their impact on domestic legal systems. A series of seminars featuring prominent foreign academics and other events have already been organised so far, focusing for example on the relationships between the EU and national legal orders, migration, the EU Regulations in family law matters, the free movement of persons and the protection of fundamental rights.

In this context, the Colloquium represents a further activity dedicated to open issues in international and EU law, but specifically addressed to Ph.D. students and young researchers of any nationality and affiliation, who will be the leading speakers at this event. First, they are expected to present the results of their research, and then, to engage in the debate with the invited international experts acting as chairpersons and discussants.

The Call for Papers “What’s #Trending in International and EU Law” has been issued to select the papers that will be included in the Colloquium’s program. It is directed at advanced Ph.D. students (or within three years of its completion), post-doc research fellows and academics at early stages of their career, who are encouraged to submit proposals (in English) concerning public international law, private and procedural international law, or EU law, including also comparative perspectives, as well as issues related to law and economics.

Interested applicants are invited to submit:

• a proposed title,
• an abstract in English of max. 8000 characters (including spaces),
• 3 keywords,
• a CV

through the Call for Papers Application Form.

The deadline for submission is 15 October 2018 and applicants will be informed of the outcomes by 15 December 2018.

Detailed information about the Call for Papers are available here.

Any inquiry about the #TILT Young Academics Colloquium or the Call for Papers can be directed at this e-mail: trendingtopics.univr@gmail.com.

Dear LSGL members,

We are pleased to announce that there will be a winter academic conference on the topic of Global Social Justice, hosted by the Department of Law, Juridicum, at the Stockholm University, Sweden, on Tuesday, 19 February in conjunction with the Dean’s meeting planned for 18 February, 2019. We ask that you send the attached call for papers to any senior and/or junior researchers at your institutions who may be interested in participating on a panel within the topic. Potential themes include:

• The globalization of discrimination protections (e.g., labour/employment discrimination; gender-based discrimination including issues relating to the #MeToo movement)
• Equality in global trade – the roles of the WTO and other international actors
• Environmental law as a guarantor of global social justice
• Corporate social responsibility – An avenue to greater global justice?
• The potential role of digital technology in promoting global social justice

We anticipate having four panels each with three speakers and a moderator, thus accepting 12 papers. The LSGL will pay for two hotel nights for each one of the 12 speakers.
Paper proposals of 300 to 500 words should be submitted no later than 6 October 2018 together with a brief CV. Decisions will be announced by 1 November 2018 and the papers should be ready for circulation no later than 1 February 2019. Please send any inquiries and paper proposals to presidency@lawschoolsgloballeague.com.

Gustavo Moser has authored a new book on choice of law in cross-border sales. He has kindly provided the following summary:

The choice of a governing contract law is a paramount contractual decision. This is because the governing contract law will dictate a contract’s life from beginning to end, thereby attaching legal and economic consequences to each step taken in the course of a contractual relationship. Yet, this choice is seldom subject to an ex anteevaluation by the parties being rather often defer to an ex postverification. Would this be a contracting parties’ behaviour verified in cross-border contracts? If so, what would be the underlying cause(s) of this pattern of conduct?

Despite its acknowledged theoretical importance, it is often suggested that negotiators might dedicate less attention than they should to the particulars of the choice of law clause. Instead, negotiators tend to opt for law that may be convenient for business, or be the result of previous experiences, including, for example, following in a partner’s footsteps, or a successful deal in the past, without further deliberation. Parties may thus simply attribute a “tag” to this experience and evaluate it according to the outcomes achieved in these previous experiences. However, these evaluations may not always be accurate and can be clouded by emotion. Are there rational and non-rational elements involved in this choice? How can we ascertain these elements?

In light of this apparent discrepancy between theory and practice, we decided to investigate further how traders actually choose the law for their deals. We also wanted to find out the reasons for these decisions and the foundations on which these decisions are based. We therefore mapped out and delved into studies and surveys conducted in the past to appreciate the empirical efforts that had been undertaken so far.

Despite their unquestionable importance, scarce information is available in these studies on how this decision is taken, and the main factors informing choice of governing contract law. The alternatives available to improving and optimising this choice are likewise unexplored.

Additionally, the connection and role of law, economics and psychology in decision-making processes is often underexplored and possibly underestimated. Unfortunately, in a dynamic, globalized and complex world of contracts, interdisciplinary approaches are rarely studied. Therefore, there does not seem to be any answer to these practical questions:

• Are contracting parties maximizers of their welfare?
• Are they, generally speaking, self-interested players who seek to reach efficient results?
• Does it depend on the context and external stimuli?
• Do emotions play any role in the choice?
• Can these emotions cloud or enlighten the judgment of these choices? If so, to what extent?
• How can we avoid, control or minimize the effects of these emotional factors?
• How can parties seek to influence and improve choice of governing contract law?

This is how the Global Empirical Survey on Choice of Law (for the purposes of this summary, the Global Empirical Survey) was conceived in 2014. The survey was essentially designed to investigate parties’ concerns regarding choice of law, reveal how and what factors determine the way contracting parties choose the law to govern their agreements, and to assess whether neutral legal frameworks were welcome in addressing these concerns.

The first chapter of the book sets out evidence on the choice of law and include a focus on how negotiators typically approach the subject and what are the main drives and triggers of this decision. We further investigate whether contracting parties are aware of the vast legal market options available and whether they actually enjoy their benefits. The first part also unveil the results of the Global Empirical Survey, which shown a rather clearer picture of the imperfections produced by cognitive limitations while choosing a governing contract law. In the second and third chapters, we map out some of the market distortions and imperfections to which negotiators are (consciously or not) routinely exposed. We also reveal the common psychological triggers that influence decision-making processes and how to identify and better control them to a party’s best advantage. We further shed light on the idiosyncratic contract design and the mechanisms to manage this properly in an international context, all in an attempt to identify and use the appropriate tools to make better decisions and obtain more efficient outcomes.

Readers will subsequently be invited to consider the major market distortions and failures to which contracting parties are routinely exposed.  We demonstrate that, with the increase of market activities and complexity of deals worldwide, parties need to be equipped with the most efficient tools to maximize gains from cross-border contracts, thereby avoiding risks and costly mistakes. With this purpose in mind, we analyse choice of law studies undertaken and offer alternatives to be used in practice, which seek to overcome recurrent complaints, uncertainties and fears when it comes to choosing governing contract law, including potential interplays and intersections with jurisdictional choices. We also attempt to verify the effectiveness of these solutions in light of the evidence presented.

The final chapter of the book concentrates on alternatives to escape “arm-wrestling”, “home turf”, deadlock situations and other tactical scenarios in cross-border contracts. We present and compare alternatives which can be used in international contract settings and then test the effectiveness of the solutions they can provide, taking into account both the legal and economic aspects and contracting parties’ real-life concerns and preferences collected in the earlier chapters. Readers are invited to find out the answers to the following questions: what really matters to contracting parties when drafting choice-of-law clauses? Are there key provisions, “backbones”, legal standards or frameworks that are indeed indispensable? Do contracting parties consider legal and economic choices at all? With this in mind, we aim to offer to legal practitioners tools that enable them to excel and effectively optimise, at a rather even level between parties, the exchange of goods worldwide.

Readers can file this one under ‘exotic’. The title of this piece does not quite give it away yet: this post is a serious post on customs classification.

My wife and I have a more than average size family, ditto therefore also the family car. Our previous version was black. We had parked it a few summers ago on the village square close to the home of one of my sisters in law, a sleepy French hamlet. A local lady came up to me and asked respectfully who had passed away… She mistook our car for a hearse, leading to my brother-in-law suggesting I should put some stickers up saying ‘ceci n’est pas un corbillard’.

Now, to the serious issue: in Case C-445/17 Pilato, the Court of Justice was asked (the case was triggered by a BTI: Binding Tariff Information) how to classify a hearse under the EU’s combined nomenclature: heading 8704 (motor vehicles for the transport of goods); 8705 (special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units); or 8703 (Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars).

The Italian customs authorities have classified under 8703 – the importer is appealing, I am assuming given the higher tariff attracted by that heading. Arguments are very serious and technical, as one would expect for customs classification: details on separation racks, etc.

The Court held Wednesday last: at 25: the intended use of a product may constitute an objective criterion for classification; at 30: hearses are particularly built and equipped for the transport of coffins, which contain corpses. A human body, even lifeless, cannot be treated in the same way as goods which may be the subject, as such, of commercial transactions. Therefore, the principal use of hearses is for the transport of persons. 8703 it is (the Court gives some more reasons).

Exactly the kind of case which makes trade classes a little lighter a the right time (the best case for that, ever, involved my wife having to classify a shipment of toy replica. Details on that case I fear are strictly for students of my WTO class).

Geert.

The Asser Institute in The Hague (the Netherlands) is looking for a Researcher in Private International Law (full time – 38 hours per week).

The successful candidate is expected to start preferably from 1 November 2018 and will be conducting research on the Brussels I bis Regulation as part of a DG JUST research project, among other things. He or she will strengthen the research capacity of the Asser Institute in the area of private international law, working within its Research Strand on adequate dispute settlement, and in the context of the Institute’s Strategic Research Agenda.

Applications must be submitted before 7 September 2018.

Remuneration depends on the actual level of education, experience and knowledge with a maximum of € 4,852.-  gross per month based on a full time equivalent (38 hours). Secondary benefits at Dutch universities are attractive and include 8% holiday allowance and an 8.3% year-end allowance.

Applicants are expected to be fluent in Dutch (preferably native) and English. In addition, applicants should have earned a PhD in private international law and have post-doctoral research experience, among other things.

Further information is available here.

There are many scientific and legal /regulatory angles to the pollution caused by micro and nanoplastics (MNPs). I was pleased to have been invited to be part of a scoping exercise with the European Commissions Group of Chief Scientific Advisors, following which that Group issued its initial statement early July.

MNPs is an issue where the EU undoubtedly can recognise its regulatory leadership – at the same time appreciating that the challenge is of a truly global nature (many of the worst plastics pollution issues are located in river deltas way outside EU borders). At the scientific level, studies particularly in the marine environment show cause for great concern – but not necessarily easy fixes.

I accepted therefore to be part of the SAPEA Consortium (Science Advice for Policy by European Academies) Working Group on MNPs, which will oversee in first instance the collation of the state of the art: from a regulatory as well as a scientific point of view – and subject to tight deadlines.

Autumn should be interesting.

Geert.

Many thanks to Julien Juret for asking me contribute to l’Observateur de Bruxelles, the review of the French Bar representation in Brussels (la Délégation des barreaux de France). I wrote this piece on the rather problematic implications of the GDPR, the General Data Protection Regulation, on jurisdictional grounds for invasion of privacy.

I conclude that the Commission’s introduction of Article 79 GDPR without much debate or justification, will lead to a patchwork of fora for infringement of personality rights. Not only will it take a while to settle the many complex issues which arise in their precise application. Their very existence arguably will distract from harmonised compliance of the GDPR rules.

I owe Julien and his colleagues the French translation (as well as their patience in my late delivery) for I wrote the piece initially in English. Readers who would like to receive a copy of that EN original, please just send me an e-mail.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

This one long overdue – I am adding it to the blog for completeness’ sake. C‑649/16 Valach was held end of December 2017. The CJEU relies heavily on Tunkers and recital 6 of the (old) Insolvency Regulation: the regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are ‘delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings’: the latter two criteria guide the CJEU.

In the case at issue, the action for liability at issue in the main proceedings is the direct and inseparable consequence of the performance by the committee of creditors, a statutory body established by Slovak law when insolvency proceedings are opened, of the task specifically assigned to them by the provisions of national law governing such procedures. Consequently, it is clear that the obligations which form the basis of bringing an action for liability in tort against a committee of creditors, such as that at issue in the main proceedings, originate in rules that are specific to insolvency proceedings (at 35-36).

As for the second criterion, it is the closeness of the link between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether the Brussels I Recast’s insolvency exception is triggered. That is the case here: at 38: in order to ascertain whether the liability of the members of the committee of creditors may be engaged because of the rejection of the restructuring plan, it will be necessary to analyse in particular the extent of that committee’s obligations in the insolvency proceedings and the compatibility of the rejection with those obligations. Such an analysis clearly presents a direct and close link with the insolvency proceedings, and is therefore closely connected with the course of those proceedings.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5 Heading 5.4.1. Chapter 2 Heading 2.2.2.10.1

In 2017, the French Cour de Cassation has promoted  a series of seven conferences on the application of foreign law, in partnership with the Société de législation comparée.

Theses conferences have just been published by the SLC.

Prefaced by Mr. Dominique Hascher, Judge at the Cour de cassation and President of the Société de législation comparée, the book contains the following contributions :

Jean-Pierre Ancel, L’office du juge dans la recherche du contenu du droit étranger (The judge’s role in establishing the content of foreign law)

Jean-Baptiste Racine, L’application par les juridictions françaises du droit uniforme et des conventions internationales (The application of uniform law and international conventions)

François Mélin, La coopération internationale dans la recherche du droit étranger : les méthodes classiques (International cooperation in researching the content of foreign law : traditional methods )

Florence Hermite, La coopération internationale dans la recherche du droit étranger : le renouvellement des méthodes (International cooperation in researching the content of foreign law : renewal of methods)

Sabine Corneloup, L’application facultative de la loi étrangère dans les situations de disponibilité du droit et l’application uniforme des règles de conflit d’origine européenne (Optional application of foreign law in situations of availability of law and the uniform application of rules of conflict of European origin)

Gustavo Cerqueira, La hiérarchie étrangère des normes devant le juge français (The foreign hierarchy of norms before the French judge)

Alice Meier-Bourdeau, Le contrôle par la Cour de cassation de l’application du droit étranger (The Cour de cassation’s control in applying foreign law)

Sara Godechot-Patris, L’exception d’équivalence entre la loi française et la loi étrangère (The exception of equivalence between the French law and the foreign law)

The book can be ordered here.