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In Case C-18/18, Eva Glawischnig-Piesczek v Facebook, the Austrian Supreme Court has referred a ‘hate speech’ case to Luxembourg – hearing will be tomorrow, 12 February. The Case revolves around Article 15 of the E-Commerce Directive: one sentence Twitter summary comes courtesy of Tito Rendas: does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Mirko Brüß has more extensive analysis here. I used the case in my class with American University (my students will be at the hearing tomorrow), to illustrate the relationship between secondary and primary law, but also the art in reading EU secondary law (here: A15 which limits what can be imposed upon a provider; and the recitals of the Directive which seem to leave more leeway to the Member States; particularly in the light of the scant harmonisation of tort law in the EU). To readers of the blog the case is probably more relevant in light of the questions on territorial scope: if a duty to remove may be imposed, how wide may the order reach? It is in this respect that the case is reminiscent of the Google etc. cases.

Yet another one to look out for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

by Klaus Peter Berger, Cologne University

The Center for Transnational Law (CENTRAL) at Cologne University Faculty of Law has recently revised and updated TransLex, its free knowledge- and codification-platform on transnational commercial law, the New Lex Mercatoria.

The introductory text now contains a thorough and critical analysis of the historic Lex Mercatoria, including its doubtful existence during the Middle Ages with links to numerous historic documents of those times, https://www.trans-lex.org/the-lex-mercatoria-and-the-translex-principles_ID8.

New comparative law materials have been added to the TransLex-Principles, a collection of over 130 principles and rules of the New Lex Mercatoria, https://www.trans-lex.org/principles/of-transnational-law-(lex-mercatoria).

New documents have been added to the online archive of rare historic documents on alternative dispute resolution from the Bible and Koran to modern times, https://www.trans-lex.org/materials/of-transnational-law-(lex-mercatoria)#list_69.

The bibliograhy now contains over 1.000 entries, making it the largest online bibliography on transnational commercial law, https://www.trans-lex.org/biblio/of-transnational-law-(lex-mercatoria).

I am hoping to catch-up with my blog backlog this week, watch this space. I’ll kick off with the Court of Justice last week confirming that the Peeters /Gatzen suit is covered by Brussels I Recast. Citing similar reasons as Bobek AG (whose Opinion I reviewed here), the Court at 34 concludes that the ‘action is based on the ordinary rules of civil and commercial law and not on the derogating rules specific to insolvency proceedings.’

This reply cancelled out the need for consideration of many of the issues which the AG did discuss – those will have to wait for later cases.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.4.1, Heading 5.7.

Global Private International Law is a new casebook, published by Edward Elgar and edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira, and Diego P. Fernandez Arroyo.

The publisher provided the following summary:

“Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora”.

Contributors include: F. Antunes Madeira da Silva, S. Archer, C. Avasilencei, G.A. Bermann, R. Bismuth, L. Bíziková, S. Bollée, J. Bomhoff, S. Brachotte, A. Brandão de Oliveira, H. Buxbaum, L. Carballo Piñeiro, C. Chalas, D. Coester-Waltjen, G. Cordero-Moss, S. Corneloup, F. Costa Morosini, G. Cuniberti, J. d’Aspremont, J. Daskal, S. Dezalay, R. Fentiman, D.P. Fernández Arroyo, T. Ferrando, S. Fulli-Lemaire, U. Grusic, H. Harata, L. Hennebel, J. Heymann, P. Kinsch, H. Kupelyants, K. Langenbucher, F. Latty, O. Le Meur, G. Lewkowicz, F. Licari, F. Marchadier, T. Marzal, R. Michaels, A. Mills, H. Muir Watt, N. Najjar, V.H. Pinto Ido, E. Pataut, D. Restrepo-Amariles, D. Rosenblum, C. Salomão Filho, M. Sanchez-Badin, P. Schiff Berman, J. Sgard, D. Sindres, E. Supiot, C. Thomale, K. Trilha, H. van Loon, J. Verhellen, M. Weidemaier, M. Wells-Greco

The table of content is available here.

More information is available here.

The Experts’ Group on Parentage / Surrogacy of the Hague Conference on Private International Law (HCCH) has answered in the affirmative.

At its fifth meeting earlier this year, the Experts’ Group agreed that it would be feasible to develop both:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements (abbreviated as “ISA”).

As announced on the HCCH website, the Experts’ Group will recommend to the governance body of the HCCH (i.e. Council on General Affairs and Policy) during its meeting in March 2019 that “work continue with a view to preparing proposals for inclusion in future instruments relating to the recognition of judicial decisions.” The Council will have the last word.

In my opinion, there are many reasons for drafting two separate instruments, which may range from legal to political as these are very sensitive topics. One that particularly struck me relates to the indirect grounds of jurisdiction when considering the recognition of such decisions:

“Most Experts concluded that the indirect grounds previously identified in the context of general legal parentage would not work in ISA cases, and instead supported the State of birth of the child as the primary connecting factor in an ISA case as this would provide certainty and predictability. A qualifier to that connecting factor (such as the habitual residence of the person giving birth to the child) might be necessary to guarantee sufficient proximity, as well as to prevent and combat trafficking of persons and law evasion.” See also para 25 of the Report.

Please note that these instruments would deal with the recognition and not with the enforcement of foreign judicial decisions given the nature of decisions on legal parentage. See in contrast my previous post on the HCCH draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

The HCCH news item is available here.

The full report is available here.

Thanks to Daniel Chan for this post.

The Oral Rounds of the Pax Moot 2019 has been definitively set at May 24th and May 25th, the detailed schedule can be found on the website (www.paxmoot.com). As a further clarification, the deadline for registration has been extended to March 31st due to organizational requirements for some participating universities. However, we encourage teams to register as early as possible for the benefit of the competition.

We are also happy to announce that our partner JUDGTRUST have been very generous to provide financial assistance to 8 participating teams this year. This program will cover the travel and lodging costs, but teams will still have to pay 200 Euros per team of registration fees. All teams are eligible to apply for this program however the final decision is reserved for JUDGTRUST. For teams who wish to apply, please send an email indicating briefly your situation to info@paxmoot.com.

Updated Rule and Procedures have also been uploaded on the website, if there are any further clarifications required, please don’t hesitate to contact us. We look forward to welcoming you in the Hague!

Sincerely,

PAX Moot Team

Professor Dr Peter Mankowski is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work at the Chair for Civil Law, Comparative Law and International Private and Procedural Law, University of Hamburg, Germany, on a part-time basis (50%) as of 1 June 2019.

The successful candidate holds a first law degree (ideally the First German State Examination) and is interested in civil law and international private and procedural law. A very good command of German and English is expected; additional language skills are an advantage.

The fellow will be given the opportunity to conduct his/her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. Responsibilities include research and teaching (with as independent teaching obligation of 2,25 hours per week during term time).

If you are interested in this position, please send your application (cover letter; CV; and relevant documents and certificates, notably university transcripts and a copy of law degree) to

Universität Hamburg
Fakultät für Rechtswissenschaft
Seminar für Internationales Privat- und Prozessrecht
Prof. Dr. Peter Mankowski
Rothenbaumchaussee 33
20148 Hamburg

by 27 March, 2019.

Further information can be found here.

On October 10-13 2019, the Mouvement Jeune Notariat will host a conference on the notarial practice of International Law (the official title reads « L’International : Le guide pratique ») which will take place in Lisbon.

The conference will deal with the international aspects of the notarial practice of estate planning which includes conflict of laws in matter of matrimonial property regime, succession, divorce, and trusts to the extend of the practice of international tax law in such matters.

The programme and registration form (both in French) can be accessed here and here. Further information is available here.

Almost a year ago, the European Court of Human Rights issued a very interesting judgment on the interpretation of Article 8 ECHR, involving a couple (husband Greek, spouse Romanian) living with their two children in the city of Ioannina, Greece. The case found no coverage in Greece (and elsewhere), probably because it was not translated in English. Crucial questions related to the operation of the 1980 Hague Child Abduction Convention and the Brussels II bis Regulation were elaborated by the Court, which ruled that Greek authorities did not violate Article 8 ECHR.

Case M.K. v. Greece (application no. 51312/16), available in French

A comment on the judgment in English has been posted by Sara Lembrechts – Researcher at University of Antwerp & Policy Advisor at Children’s Rights Knowledge Centre (KeKi), Belgium.

My eye fell last week-end on The Times of London’s obituary of Sir Peter Singer, z”l , who passed away late in December.

The Times recall among others his linguistic skills and refer specifically to his judgment in [2013] EWHC 49 (Fam) DL  v EL, upheld by the Court of Appeal in [2013] EWCA Civ 865. Regular readers will be aware of my interest in languages at the CJEU.

Sir Peter was applying the Brussels IIa Regulation 2001/2003 and had to decide inter alia where the child was habitually residing. In an endnote he discussed C-497/10 PPU Mercredi v Chaffe. At 76 he juxtaposes the English and French versions of the judgment (a technique I insist my students and pupils employ), observing the difference between ‘stabilité ‘ used in the French version and ‘permanence’ in the English, concluding that ‘stability’ would be the more accurate term. The Court of Appeal discusses the issue in 49.

Delightfully accurate and erudite.

Geert.

Prof. Dr. Dr. h.c. Burkhard Hess and Ms. Martina Mantovani (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) recently posted a new paper in the MPILux Research Paper Series, titled Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation.

The paper will appear in F. Ferrari & D. Fernandez Arroyo (eds.), The Continuing Relevance of Private International Law and Its Challenges (Elgar, 2019).

Here is an overview provided by the authors.

“The paper analyses the legal framework governing the exercise of civil jurisdiction over claims brought before European courts by victims of mass torts committed outside the jurisdiction of European States.

The first part of the paper focuses on the private international law doctrine of the forum of necessity, often used by foreign plaintiffs as a “last resort” for accessing a European forum. Ejected from the final version of the Brussels Ibis Regulation and thus arguably unavailable in cases involving EU-domiciled defendants, this doctrine has recently been subjected, in domestic case law, to formalistic interpretations which further curtail its applicability vis-à-vis non-EU domiciled defendants. The Comilog saga in France and the Naït Liman case in Switzerland are prime examples of this approach.

Having taken stock of the Naït Liman judgment of the Grand Chamber of the European Court of Human Rights, which leaves an extremely narrow scope for reviewing said formalistic interpretations under article 6 ECHR, the second part of the paper assesses alternative procedural strategies that foreign plaintiffs may implement in order to bring their case in Europe.

A first course of action may consist in suing a non-EU domiciled defendant (usually a subsidiary) before the courts of domicile of a EU domiciled co-defendant (often the parent company). Hardly innovative, this procedural strategy is recurrent in recent case law of both civil law and common law courts, and allows therefore for a comparative assessment of the approach adopted by national courts in dealing with such cases. Particular attention is given to the sometimes-difficult coexistence between the hard-and-fast logic of the Brussels Ibis Regulation, applicable vis-à-vis the anchor defendant, and the domestic tests applied for asserting jurisdiction over the non-domiciled co-defendant, as well as to the ever-present objections of forum non conveniens and of “abuse of rights”.

A second course of action may consist in suing, as a single defendant, either a EU domiciled contractual party of the main perpetrator of the abuse (as it happened in the Kik case in Germany or in the Song Mao case in the UK), or a major player on the international market (e.g. the RWE case in Germany). In these cases, where the Brussels Ibis Regulation and its hard-and-fast logic may deploy their full potential, the jurisdiction of the seised court is undisputable in principle and never disputed in practice.

Against this backdrop, the paper concludes that, where the Brussels Ibis Regulation is triggered, establishing jurisdiction and accessing a forum is quite an easy and straightforward endeavor. Nevertheless, the road to a judgment on the merits remains fraught with difficulty for victims of an extraterritorial harm.  Firstly, there are several other procedural hurdles, concerning for example the admissibility of the claim, which may derail a decision on the merits even after jurisdiction has been established. Secondly, the state of development of the applicable substantive law still constitutes a major obstacle to the plaintiff’s success. In common law countries, where the existence of a “good arguable case” shall be proven already at an earlier stage, in order to establish jurisdiction over the non-EU domiciled defendant, the strict substantive test to be applied for establishing a duty of supervision of the parent company, as well as its high evidentiary standard, have in most cases determined to the dismissal of the entire case without a comprehensive assessment in the merits, despite the undisputable existence of jurisdiction vis-à-vis the domiciled parent company. In civil law countries, the contents of the applicable substantive law, e.g. the statute of limitations, may finally determine an identical outcome at a later stage of the proceedings (as proven by the extremely recent dismissal of the case against Kik).”

In Agostinho da Silva Martins v Dekra Claims Services Portugal SA (C-149/18), between Mr Agostinho da Silva Martins, who suffered damages in a car accident, and the insurance company Dekra Claims Services Portugal SA, the CJEU was called to rule on two different issues of qualification: one related to the interpretation of Article 16 of the Rome II Regulation on overriding mandatory provisions and the other related to interpretation of Article 28 of Directive 2009/103 on protection of victim in case of a motor vehicle accident.

Regarding the overriding mandatory provisons under the Rome II Regulation, the CJEU refers to the definition in Article 9(1) of the Rome I Regulation and reasons that in order to qualify a national rule on statutory limitation period as an overriding mandatory the national court has to be satisfied that there exist “particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable”. The relevant part of the CJEU holding uses careful phrasing suggesting restrictive interpretation of overriding mandatory rules: a rule

cannot be considered to be an overriding mandatory provision, […] unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable.

Regarding the conflict of law nature of Article 28 of Directive 2009/103, which regulates the Member States’ obligation to provide measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected, the CJEU states that this is not the conflict-of-law provision and that, consequently, it does not take precedence over the Rome II Regulation under Article 27 of the latter.

Written by Prof. Maarit Jänterä-Jareborg, Uppsala University, Sweden

On 1 January 2019, new restrictions came into force in Sweden’s private international law legislation in respect of marriages validly concluded abroad. The revised rules are found in the Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship, Chapter 1 § 8a, as amended by SFS 2018:1973. The content of the new legislation is, briefly, the following: no marriage shall be recognised in Sweden if the spouses or either one of them was under the age of 18 years at the time of the marriage. By way of exception, this rule may be set aside once both parties are above 18 years of age, if there are exceptional reasons to recognise the marriage. 

The law reform is in line with a recent European trend, carried out in e.g., Germany, Denmark and Norway, to protect children from marrying and, one could claim, to ‘spare’ people who married as a child (or with a child) from their marriage.[1] The requirement of 18 years of age has been introduced not only as the minimum marriage age for concluding a marriage in the State’s own territory, i.e., as a kind of an internationally mandatory rule, but also as a condition for the recognition of a foreign marriage.

The new Swedish legislation constitutes perhaps the most extreme example on how to combat the phenomenon of child marriages. The marriage’s invalidity in Sweden does not require a connecting factor to Sweden at the time of the marriage, or that the spouses are underage upon arrival to Sweden. Theoretically, the spouses may arrive to Sweden decades after marrying, and find out that their marriage is not recognised in Sweden. The later majority of the persons involved does not repair this original defect. The only solution, if both (still) wish to be married to each other, will be to (re)marry!

It remains to be seen whether the position taken in the Government Bill, claiming that the new law conforms with EU primary law and the ECHR, is proportionate and within Sweden’s margin of appreciation, will be shared by the CJEU and the ECtHR. Swedish Parliament, in any case, shared this view and did not consider that EU citizens’ free movement within the EU required exempting underage spouses from the rule of non-recognition. The new law applies to marriages concluded as of 1 January 2019. It does not affect the legal validity of marriages concluded before that date.

To understand the effects of the Swedish law reform, the following needs to be emphasised. One of the special characteristics of Swedish family procedure law is that is does not provide for decrees on marriage annulment or the invalidity of a marriage. Divorce and death are in Sweden the only ways of dissolving a marriage! This position has applied since 1 January 1974, when the right to immediate divorce became the tool to dissolve any marriage concluded in Sweden against a legal obstacle to the marriage, e.g., a spouse’s still existing marriage or duress to marry. A foreign marriage not recognised in Sweden is, however, invalid directly by force of Swedish private international law legislation. It follows that it cannot be dissolved by divorce – as it does not exist as a marriage in the eyes of Swedish law. It does not either produce any of the legal effects of marriage, such as the right to maintenance or property rights. It does not qualify as a marriage obstacle, with the result that both ‘spouses’ are free to marry each other or anyone else.

What, then, is the impact of the legislation’s exception enabling, in exceptional circumstances, to set aside the rule of non-recognition? This is an assessment which is aimed to take place ad hoc,usually in cases where the ‘marriage’s’ validity is of relevance as a preliminary issue, whereby each competent authority makes an independent evaluation. It is required that non-recognition must produce exceptional hardships for the parties (or their children). The solution is legally uncertain and unpredictable and has been subject to heavy criticism by Sweden’s leading jurists.

The 2019 law reform follows a series of reforms carried out in Sweden since 2004. According to the established main rule, a marriage validly concluded in the State of celebration or regarded as valid in States where the parties were habitually resident or nationals at the time of the marriage, is recognised in Sweden, Chapter 1 § 7 of the 1904 Act. Since a law reform carried out in 2004, an underage marriage is, nevertheless, invalid directly by force of law in Sweden, if either spouse had a connection to Sweden through habitual residence or nationality at the time of the marriage. (The 2019 law reform takes a step further, in this respect.) Recognition can, in addition, be refused with reference to the ordre publicexception of the 1904 Act, Chapter 7 § 4. The position taken in Swedish case law is that ordre publiccapturesanymarriage concluded before both parties were 15 years of age. Forced marriages do not qualify for recognition in Sweden, since the 2004 reform. The same applies to marriages by proxy, since 2014, but only on condition that either party to the marriage had a connection to Sweden through habitual residence of nationality at the time of the marriage.

The 2019 legislation differs in several respects from the proposals preceding it, for example the proposed innovation of focusing on the underage of a spouse at the time of either spouse’s arrival to Sweden.  A government-initiated inquiry is currently pending in Sweden, the intention being to introduce rules on non-recognition of polygamous marriages validly concluded abroad.

[1] See M. JÄNTERÄ-JAREBORG, ‘Non-recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 “Refugee Crisis”’, in: G. DOUGLAS, M. MURCH, V. STEPHENS (eds), International and National Perspectives on Child and Family Law, Essays in Honour of Nigel Lowe, Intersentia 2018, pp. 267-281.

Since Conflict of Laws became a subject section at the Society of Legal Scholars in 2017, it has been part of the Society’s annual conference. This year’s conference, which will be held in Preston, UK, from 3 September to 6 September (right before the Journal of Private International Law Conference in Munich), is no exception and the organiser’s of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers:

SLS Conflict of Laws Section: Call for Papers and Panels for 2019 SLS Annual Conference at the University of Central Lancashire, Preston

This is a call for papers and panels for the Conflict of Laws section of the 2019 SLS Annual Conference to be held at the University of Central Lancashire in Preston from Tuesday 3rd September – Friday 6th September.  This year’s theme is ‘Central Questions About Law’.

This marks the third year of the Conflict of Laws section, and we are hoping to build on the successful meetings in Dublin and London.

The Conflict of Laws section will meet in the first half of the conference on Tuesday 3rd and Wednesday 4th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside one session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.

If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts. We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

Please submit your paper abstract or panel details by 11:59pm UK time on Monday 18th March 2019.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1028/submission – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.

The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.

To be eligible for the Best Paper Prize:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11.59pm UK time on Monday 26th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 14th June in order to secure their place within the programme, though please do let us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose or deliver a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Lancashire.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford
Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)

[2019] EWCA Civ 10 Kaefer Aislamientos v AMS Drilling et al is a good illustration of the difficulty of privity of contract (here: privity of choice of court), and the limits to the harmonisation of the rules on choice of court under Article 25 Brussels I Recast.

Herbert Smith Freehills have analysis of the wider issues of the case (over and above Article 25) here. The appeal considers among others the approach that courts should adopt when, as will usually be the case at the interim stage when a jurisdiction challenge is launched, the evidence before the Court is incomplete. Goldman Sachs v Novo Banco as well as Brownlie were referenced.

Appellant contends that the Court has jurisdiction to determine the claim against defendants AT1 and Ezion under Article 25 Brussels I Recast. It is said that the relevant contract contains an English exclusive jurisdiction clause and the relevant contract was concluded by AMS Mexico and/or AMS on behalf of AT1 and/or Ezion as undisclosed principals and, it follows, the contract, including its jurisdiction agreement, bound AT1 and Ezion.

At 81 Lord Green refers to the Privy Council in Bols [2006] UKPC 45 which itself had referred to Colzani and Coreck Maritime (staple precedent at the CJEU; students of conflict of laws: time to worry if you read this around exam time and haven’t a clue). In Bols Lord Rodgers leading, held that CJEU precedent imposed on the court the duty of examining “whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties” and this had to be “clearly and precisely demonstrated“. The purpose of the provisions was, it was said, to ensure that the “consensus” between the parties was “in fact” established.

Lord Green (this is not part of the decision in Bols) adds that the Court of Justice has however recognised that the manner of this proof is essentially an issue for the national laws of the Member States, subject to an overriding duty to ensure that those laws are consistent with the aims and objectives of the Regulation. He does not cite CJEU precedent in support – but he is right: Article 25 contains essential, yet precious little bite in determining just how to establish such consensus. Prima facie complete, it leaves a vault of issues to be determined, starting with the element of ‘proof’ of consensus.

Of interest is that before deciding the issue, Lord Green notes at 85 Abela v Baardani [2013] UKSC 44 (“Abela“) at paragraphs [44] and [53] per Lord Clarke and Lord Sumption, that to view permission to service out of jurisdiction as more often than not exorbitant, is unrealistic in the modern era: routinely where service out is authorised the defendant will have submitted contractually to the jurisdiction of the domestic courts (or there would be an argument to that effect) and in any event litigation between residents of different states is a normal incident of modern global business. As such the decision to permit service out is, today, more generally viewed as a pragmatic decision predicated upon the efficiency of the conduct of litigation.

It was eventually held that the evidence pointed against AT1 and Exion being undisclosed principals and that therefore the Court of Appeal was right in rejecting jurisdiction.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.4.

Corruption continues to cast a shadow over investment law. When allegations of corruption arise in an investment dispute, the tribunal faces the difficult task of deciding whether (and how) to penalize the responsible party. It must assess the often-limited evidence and then craft an appropriate remedy. The legal and practical questions this raises remain highly contested. On Tuesday, February 19, 2019, the ILA American Branch Investment Law Committee and the Georgetown International Arbitration Society are hosting an evening conference to discuss these questions, bringing together academic and non-academic perspectives.

Panel 1: What is sufficient proof of corruption?
• Aloysius Llamzon, Senior Associate, King & Spalding
• Jason Yackee, Professor, University of Wisconsin
• Meriam Al-Rashid, Partner, Dentons

Panel 2: What is the right response when corruption is found?
• Lucinda Low, Partner, Steptoe
• Arif H. Ali, Partner, Dechert

Opening and closing:
• David L. Attanasio, Co-Chair, ILA American Branch Investment Law Committee; Associate, Dechert
• Malika Aggarwal, Georgetown International Arbitration Society

Location:
Dechert
1900 K Street, NW
Washington, DC 20006

When:
Tuesday, February 19, 2019, with registration from 4:45 pm and the program commencing at 5:00 pm.

Space is limited, so please RSVP as soon as possible here

The forthcoming volume of the Japanese Yearbook of International Law (Vol. 61, 2018) will feature the following articles and case notes relating to private international law:

Articles

INTERNATIONAL DEVELOPMENT OF CONSUMER COLLECTIVE REDRESS

Dai Yokomizo, Introductory Note (168)

Kazuhiko Yamamoto, Special Proceedings for the Collective Redress for Property Damage Incurred by Consumers — About So-Called “Japanese Class Action” — (169)

Dai Yokomizo, Consumer Collective Redress and Japanese Conflict of Laws (190)

Stefaan Voet, Europe’s Collective Redress Conundrum (205)

Catherine Piché & Geneviève Saumier, Consumer Collective Redress in Canada (231)

PRIVATE INTERNATIONAL LAW

Masato Dogauchi, The Aftermath of the Fukushima Dai-Ichi Nuclear Accident: How Japanese Lawyers Have Been Playing Their Roles with Regard to the Nuclear Damage? (284)

JUDICIAL DECISIONS IN JAPAN (369ss)

Public International Law

Takamatsu High Court, Judgment, April 25, 2016

Hate Speech — The International Convention on the Elimination of All Forms of Racial Discrimination — Relevance of the Convention in Interpreting Domestic Laws

Nagoya High Court, Judgment, September 7, 2016

Eligibility for Refugee Status — Burden and Degree of Proof — Situation in Nepal — Article 1 of the Convention Relating to the Status of Refugees — Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status

Nagoya High Court, Judgment, November 30, 2016

Factors to be Taken into Consideration in Determination of Special Permission to Stay — Continuous De Facto Marriage and Family Life — Criminal Offence and Extenuating Circumstances

Naha District Court (Okinawa Branch), Judgment, February 9, 2017

State Immunity — Activities of Foreign Armed Forces Stationing in the Forum State with Its Consent — Tort Exception — Relationship Between the United Nations Convention on Jurisdictional Immunities of States and Customary Rules on State Immunity

Private International Law

Supreme Court (3rd Petty Bench), Judgment, December 12, 2017

Challenge to Arbitral Award — Arbitrator Conflict of Interest — Disclosure of Conflict of Interest

Supreme Court (3rd Petty Bench), Judgment, 12 December 2017

Japanese Anti-Monopoly Act — Extraterritorial Application — Price-Fixing Cartel 

Supreme Court (1st Petty Bench), Decision, December 21, 2017

International Child Abduction — Modification of the Order to Return 

Tokyo High Court, Judgment, November 25, 2015

Enforcement of Judgment — Defamation — Reciprocity

Tokyo District Court, Judgment, January 17, 2017

International Adjudicatory Jurisdiction over Consumer Contracts — Rescindment of Contracts by Fraud — Overriding Mandatory Provision

Tokyo High Court, Judgment, October 25, 2017

Exclusive Jurisdiction Clauses Commercial Contracts — Public Policy — Civil Remedy— International Private Law — Limitation of Party Autonomy by Mandatory Rules — Abuse of Superior Bargaining Position — Article 24 of the Antimonopoly Act — Article 709 of the Civil Code

More information on the Yearbook (former Annual) and the content of its past volumes is available at http://www.ilajapan.org/jyil/.

This post requires seriously engaged interest in EU waste law. Very few of you I am sure are familiar with my work  – in Dutch (with Tom de Gendt, and Kurt Deketelaere) on animal waste /animal by-products. Yet please all those of you who are not waste nerds, do not turn away yet: for animal wastes and animal by-products are a raw material for biogas installations. The regulatory issues at stake therefore are relevant to the renewable energy sector.

Saugmandsgaard ØE opined end January in C-634/16 ReFood – the English text was not available at the time of writing. A lorry with animal by-products collected in The Netherlands, was making its way to a German biogas installation (one of many many thousands such transports) when it was stopped, the driver being asked to produce the relevant waste export permit – which he did not possess.

Recital 11 of the waste shipments Regulation 1013/2006, introduces the issue at stake, which is avoiding regulatory duplication: ‘It is necessary to avoid duplication with Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption, which already contains provisions covering the overall consignment, channelling and movement (collection, transport, handling, processing, use, recovery or disposal, record keeping, accompanying documents and traceability) of animal by-products within, into and out of the Community.’ As a result, the Regulation exempts from its scope of application ‘shipments which are subject to the approval requirements of Regulation (EC) No 1774/2002’. Core of the regulatory conundrum is that Regulation 1774/2002 does not contain ‘approval requirements’ for the relevant category. (They are category 3 animal by-products, these are the least problematic animal wastes).

The AG suggests a broad reading of the exemption, and one which prevents overlap between the two regimes. Animal by-products fall under the exemption full stop: there are no two, three or more ways about it. (The AG argues along the lines of linguistic analysis, regulatory logic, and the preparatory works of all EU secondary law at issue).

Geert.

The Dutch Supreme Court late in January has confirmed the lower court’s decision (see my report here) in Yukos, not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The decision to recognise or not evidently is based on residuary Dutch conflict of laws (the Insolvency Regulation is not engaged).

At 4.1.3 the Supreme Court emphasises that the principle of mutual trust does not apply, as it would do between EU jurisdictions. It then does not perform the entire ordre public exercise from scratch, rather assesses whether the lower court properly carried out said analysis (as befits its role as a Supreme Court). Which it finds, the Court of Appeals did. Its ordre public check did not in the abstract test Russian court proceedings, rather tested whether the precise conduct of all involved parties led to use of the judicial system in a way which compromises the core Dutch legal order (see for more detail on that, my earlier post).

Textbook ordre public.

Geert.

A new blog specializing on international economic law matters as they relate to Africa has recently been created. AfronomicsLaw will complement the growing and important voice of scholars interested in international economic law with a focus on Africa. It will also offer policy makers, practitioners and others interested in these issues a forum to insightfully engage and reflect on developments on international economic law more contemporaneously.

The Editors are James T. Gathii (Loyola Chicago University Law School), Olabisi D. Akinkugbe (Schulich School of Law, Dalhousie University), and Nthope Mapefane (University of Pretoria) both copied on this email.

The blog hosts featured symposiums on topical themes and books. It will also highlight relevant news and forthcoming events. The Editors encourage submissions of an analytical and reflective nature. Individual and Symposium contributions should be sent to afronomicslaw@gmail.com
Ideally, submissions should not exceed 1000 words without prior arrangement with the blog editors. Footnotes can be used sparingly, but for readability hyperlinks will work better.