Flux des sites DIP

Agatha Brandão de Oliveira, Senior Research Assistant at the University of Lucerne, brought to my attention a forthcoming publication bearing the above title. The official book launch will take place on February 7 in Paris

The book was edited by: Horatia Muir Watt, Professor of Law, SciencesPo Law School, Paris, France, Lucia Bíziková, Trainee in an international law firm, London, UK, Agatha Brandão de Oliveira, Guest Lecturer, Federal University of Espirito Santo (UFES), Brazil and member of the Brazilian Bar and Diego P. Fernandez Arroyo, Professor of Law, SciencesPo Law School, Paris, France. 

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.

Key Features of the publication are presented as follows:
• the specific global scope allows the reader to gain a contextualised understanding of legal transformation
• each case has two commentaries from different viewpoints, ensuring a nuanced perspective on the implications of the global turn in private international law and its importance for adjudication
• an astute combination of theory and practice ensures readers gain an understanding of the relevance of innovative legal theories in interpreting concrete cases in a changing world
• comparative material and ground-breaking analysis make this book eminently suitable for use with students and a useful tool for researchers and courts confronted with novel topics or issues.

For more info, check here.

The Department of Law of the University of Turin intends to award three early-career fellowship grants. The value of each grant is 9.000 Euros.

Applications are welcome from young scholars, ideally with a PhD in law, in any field of law, including private international law.

Each grant is meant to finance a three-month research stay in Turin, as a result of which the grant-holder is expected to draw up a proposal for a Marie Sklodowska Curie Standard European Fellowship, indicating the Department of Law of the University of Turin as the host institution.

Candidates must not have resided or carried out their main activities in Italy for more than 12 months in the three years ending on 11 September 2019.

The deadline for applications is 11 March 2019 at 12.00 a.m. CET.

For further information see here.

I have previously reported extensively on various national and European developments re the right to have search results delisted, more popularly referred to as the ‘right to be forgotten’ (‘RTBF’ – a product of the CJEU in Google Spain) and its territorial limits. (Search string ‘Google’ or ‘rtbf’ ought to assist the reader). Szpunar AG opined mercifully  succinctly last Thursday in C-505/17.

Possibly because of the English-language press release (‘Advocate General Szpunar proposes that the Court should limit the scope of the de-referencing that search engine operators are required to carry out to the EU‘) and because of the actual text of the Opinion hitherto being available in French only, general reporting has been almost unequivocally (note Michèle Finck’s 10th Tweet in an early thread on the Opinion as a cautious exception), that the AG suggests that the RTBF is limited to EU soil only.

Except, he does not.

The Conseil d’Etat has referred one or two specific Qs but also, just to be sure, has also asked the Court of Justice for general insight into how data protection laws apply to the internet.

The AG of course departs from the core objective of the data protection Directive and now the GDPR, and Google Spain, and points out that the CJEU has put the protection of the fundamental rights of the data subject at the centre. At 46 he summarises his view before justifying it:

‘in my opinion one should distinguish according to the place in which the search is carried out. Searches carried out outside the EU ought not to be made subject to delisting’. (My translation from the French).

Geo-blocking can be ordered and ensures that within the EU territory, no Google extension may be used to access the information at issue (at 64 ff) after duly having balanced the right of freedom of information against the right to be forgotten.

Turning to his arguments, the AG points out at 47 ff first of all – briefly: see e.g. Belgian case-law on Facebook for more extensive discussion –  that public international law defines the borders of the EU and its Member States. The AG sees no reason (48-49) exceptionally to extend the scope of application beyond that border in the case of the Directive or the GDPR.

(51-52) Other examples of ‘extraterritoriality’ do not sway him, such as the Trademark Directive or EU competition law. He argues that in these cases the Internal Market is impacted and EU law applies to these situations ex-EU only because the Internal Market is a finite, territorial unit. The internet is not (at 53: Le marché intérieur est un territoire clairement délimité par les traités. En revanche, l’internet est, par nature, mondial et, d’une certaine manière, est présent partout. Il est donc difficile de faire des analogies et des comparaisons).

Note that references to other instances of ‘extraterritoriality’ (or not) could have been made: such as the cases surrounding animal welfare (Zuchtvieh), cosmetics, or the EU’s emissions trading scheme.

The AG also briefly discusses ‘extraterritorial’ protection of rights under the ECHR, but distinguishes the EU Charter from same. (On the topic of the ‘extraterritorial’ impact of the EU’s human rights obligations, see excellently Lorand Bartels here).

At 60-61 the AG argues (paras which have been more or less literally translated in the Press release) that if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, let alone balance it against the other fundamental rights to data protection and to privacy. This, the AG argues, is all the more so since ‘the right of the public to access such information’ (un tel intérêt du public à accéder à une information; this word string bizarrely translated in the press release as ‘such a publication’) will necessarily vary from one third State to another depending on its geographic location. There would be a risk, the AG suggests, that if worldwide de-referencing were possible, persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information. This might in turn lead to a race to the bottom in the right to access of information.

This is an important point, because it essentially encapsulates a core argument made by Google: that particularly in the US, the constitutional right to free speech and the corollary of the freedom to receive information, gazumps a right to be forgotten – putting Google in the event of worldwide delisting orders between SCOTUS’ rock and CJEU’s hard place.

Crucially however at 62 the AG then in my view perhaps not quite torpedoes but certainly seriously softens his overall general analysis by suggesting that his views on territoriality are the default position only, which may be varied should specific instances of the balancing act of fundamental rights, so require: it’s just that the specific circumstances of the case do not.

Les enjeux en cause n’exigent donc pas que les dispositions de la directive 95/46 soient d’application au-delà du territoire de l’Union. Cela ne signifie pas pour autant que le droit de l’Union ne saurait jamais imposer à un exploitant de moteur de recherche tel que Google qu’il entreprenne des actions au niveau mondial. Je n’exclus pas qu’il puisse y avoir des situations dans lesquelles l’intérêt de l’Union exige une application des dispositions de la directive 95/46 au-delà du territoire de l’Union. Mais dans une situation telle que celle de la présente affaire, il n’y a pas de raison d’appliquer les dispositions de la directive 95/46 d’une telle manière.

The circumstances of the case do not justify worldwide blocking. Yet other circumstances might. This is a crucial section for the French data protection authority’s (CNIL) decision at issue, 2016/054 [thank you again to the Dutch Ministry of Foreign Affairs for providing the factual background to the case; also note that in the French decision Google’s name, amusingly, is anonymised] is a general CNIL instruction to Google to carry out global delisting in instances where natural persons request removal; not a case-specific one. In other words the ‘circumstances of the case’ concern a generic, not a factual balancing.

In yet other words: there could be many instances where national data protection authorities might find worldwide delisting to be the only proper means to balance the various fundamental rights at stake. The AG Opinion offers little to no support that such worldwide delisting in concrete cases were to infringe the Directive /the GDPR. Such balancing act would be akin to X v Google LLC at the Tribunal de grande instance de Paris on which I reported last week.

Note that in his Opinion of the same day in C-136/17, the AG Opines that the default response of search engine providers must be to honour requests for delisting, and to only exceptionally not do so.

Some issues for the Grand Chamber to chew on. And then some more.

Geert.

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

On 28 and 29 March 2019, the international conference ‘Families Beyond Borders. Migration with or without private international law’ will take place in Ghent at the Faculty of Law of Ghent University (Belgium). The conference, organised by Jinske Verhellen, will focus on the challenging interactions between private international law, migration law and human rights law.

Speakers will deal with legal problems encountered by refugees and migrants with regard to their personal status acquired in one country and taken along to another country. How do people prove their family ties? How can families be reunited? How do unaccompanied refugee and migrant children prove their minority? How do asylum and migration authorities assess foreign documents that relate to the personal status of refugees? What happens if no (authentic) documents can be presented? How to combat fraud relating to personal status documents in an efficient manner without depriving migrants of their right to family life? These are just some questions that will be discussed.

The conference will put the spotlight on the ‘people’ (subject of all kinds of legal procedures). Therefore, the programme will be centred around three groups of people: persons in need of international protection, refugee and migrant children, migrants and their families. Both academics and experts with experience from the field will take and share the floor.

Ghent University is very honoured to welcome the following keynote speakers: Prof. James C. Hathaway (University of Michigan Law School) and Judge Ksenija Turkovic (European Court of Human Rights).

Confirmed speakers and rapporteurs are: Prof. Laura Carpaneto (University of Genoa), Prof. Sabine Corneloup (Université Paris II), Judge Martina Erb Klünemann (Family Court Germany, EJN and International Hague Network of Judges), Katja Fournier (Coordinator Platform Minors in Exile), Dr. Susanne Gössl (University of Bonn), Steve Heylen (Vice-President European Association of Civil Registrars), Christelle Hilpert (Head of the French Central Authority – 1996 Hague Convention), Prof. Maarit Jänterä-Jareborg (Uppsala University), Prof. Fabienne Jault-Seseke (Université Versailles), Prof. Thalia Kruger (University of Antwerp), Dr. Andrea Struwe, (attorney), Lise Van Baelen (Restoring Family Links Officer, Belgian Red Cross), Dr. Hans van Loon (former Secretary General of the Hague Conference on Private International Law), Prof. Jinske Verhellen (Ghent University) and Prof. Patrick Wautelet (Université de Liège).

Prof. Jean-Yves Carlier (Université catholique Louvain) will draw the conference conclusions.

The full program and information on registration is available here.

SAS Institute Inc v World Programming Limited [2018] EWHC 3452 (Comm) is a rare example of refusal by an English court of enforcement of a US judgment. 20 Essex Street have excellent analysis here and I am happy generally to refer.

The outcome of English Proceedings was that WPL defeated SAS’ claims regarding software licence and copyright infringements, with an important role played by the European software Directive as applied by the CJEU in Case C-406/10 upon preliminary reference in the very case.

Meanwhile SAS had commenced concurrent proceedings in the US. WPL initially objected to the US Proceedings on forum non conveniens and other jurisdictional grounds. These objections were later withdrawn and WPL submitted to the jurisdiction of the US District Court and participated in the process before it. Judgment was awarded against it. SAS curtailed its claim of enforcement to as to increase chances of success: it only seeks to enforce the US Judgment in England insofar as it is for compensatory damages based on WPL’s fraud (an issue which was litigated in the US but not in the UK); it does not seek to enforce the breach of contract claim or that part of the US Judgment which awarded multiple damages.

At 35-36 Cockerill J summarises the law: ‘There are three strands of potential preclusion: cause of action estoppel (not live here) issue estoppel and Henderson v Henderson abuse of process. As Lord Sumption observed in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 at p.180H at [17]:

“…the policy underlying all of the…[res judicata] principles…” is “…the more general procedural rule against abusive proceedings…”.

The different doctrines therefore have different requirements, but they shoot at the same target – that of ensuring that nobody should be vexed twice in respect of one and the same cause: “nemo debet bis vexari pro una et eadem causa“: as it was put by Lord Diplock in Vervaeke v Smith [1983] AC 145 at p.160A-B, G. A more modern version was given by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 at p.31A-B in the context of the Henderson doctrine:

“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.” ‘

Issue estoppel per Dicey (referred to by Cockerill J) at paragraph 14-156 means that a “foreign judgment will not be recognised if it is inconsistent with a previous decision of a competent English court in proceedings between the same parties“. Akin therefore in residual English private international law (EU law is not engaged, the judgment having been issued ex-EU) to Brussels I Recast’s Article 45(1)c ‘s rule.

The fundamental point is that issue estoppel bars relitigation not of all issues, but only of issues determined as an essential part of the cause of action (at 40). The Henderson principle is concerned with protecting the integrity of the cause of action and issue estoppel defences and preventing them from being deliberately or inadvertently circumvented by a party which did not advance an argument in England which would otherwise have created such an estoppel (at 47).

This is the core of the abuse investigation and this formulated one can see why it is a difficult test to apply.

At 55: ‘There are two issues: was the Fraud claim “parasitic” on the breach of contract claim and the related question of whether the Fraud claim was a separate, distinct and independent cause of action. Both of these really go to the question of whether there is sufficient identity of issue.’ At 73 Cockerill J concludes that there was such abuse: ‘Ultimately, I have come to the conclusion that the existence of the terms of the contract was a fundamental building block for the Fraud Claim and that without it that claim – as it was formulated in the US – could not have been run. The essence of the case in the US Proceedings related to alleged fraudulent representations concerning its “present intention to comply with those terms”. It was fundamental to the claim that WPL “had no intention of abiding by those terms“. It was inherent in that case that those terms did exist; and yet the courts of this country had already held that those terms did not exist.’

Obiter, at 156 ff, Cockerill J adds that enforcement would also have been refused for reasons of the public policy embodied in the Software Directive. Authority in the arbitration context was referred to to pro inspiratio, including CJEU authority C-168/05 Mostaza Claro and C-126/97 Eco Swiss (at 163). At 179: ‘The fundamental problem for SAS is that the Directive plainly envisages the rendering null and void of provisions such as those on which SAS wants to rely, indeed that is explicitly the policy enunciated in the case-law and yet SAS’s fraud case is dependent upon those terms’ existence. The effect of the Directive is, as I have indicated above, to make SAS’s fraud claim (as formulated) impossible to express. It is therefore unrealistic to analyse the matter as the Directive “authorising frauds“.’ And at 184: ‘It is clear that the Software Directive gives expression to two important public policy objectives of preventing the monopolisation of ideas and promoting competition and consumer welfare.’

A very lengthy judgment which merits full reading.

Geert.

Silvia Marino has just published her new book on cross-border family patrimonial relationships. Here’s an abstract prepared by the author in English:

This study tackles the PIL-related aspects of the cross-border family’s patrimonial relationships. The main focus is on the coordination and the coherence of the different International and European sources of law, taking as cornerstones the two recent EU Regulations on the matrimonial property regimes and the patrimonial effects of registered partnerships. The other fields dealt with are international successions and maintenance, as part of the global patrimonial organization of the family. Due to the high number of International and European measures within this fields, the volume offers an accurate evaluation of the final coherence of the legislation, with particular regard within the EU.

The book starts with an historical introduction and a first analysis of the definitions (with particular regard to the current notion of family). Then, it  tackles all the classical topics of PIL, under the light of the coherence of the patrimonial organization within the family. The first chapter analyses the coordination of International, European and National sources, as a necessary step to determine the applicable normative measure. Then, the study presents an examination of the convergences and divergences of the regulations in the different sources of law. The first parameter is the role of party autonomy, both within the determination of international jurisdiction and the conflict of laws. Indeed, all the measures examined leave a margin of freedom of choice in favour of the parties, which should stem into coherent outputs. The second parameter is the determination of the international jurisdiction, followed by the connecting factors, and the impact of their application to the coherence of the property regime’s regulation. The third parameter is the (scarce) legislation on the general issues of PIL, as rules on the correct functioning and application of the conflict of law rules. Finally, the last part is devoted to the different models of transnational circulation of judicial decisions, authentic instruments and Court settlements, which might have evidentiary and even enforceable effects within EU Member States. The number of acts that can freely circulate within the EU risks creating difficulties at the enforcement stage. The conclusions offer some few further ideas on the future developments of an EU Area of Freedom, Security and Justice.

This is a short posting for completeness and filing purposes. The EU have requested consultations with South Korea under the Trade and Sustainable Development chapter of the EU-Korea FTA. Labour rights are at the heart of the request. The request is a first trigger of the ‘Trade and’ consultations chapters under recent EU FTAs. I am not in a position to say more at this stage.

Geert.

Many thanks to Filbert Lam for alerting me to Menon CJ’s most exquisite 2018 speech on cross-border insolvency law. His honour’s talk addresses forum shopping (including for cram down reasons), the Model Law, a most enlightening comparison between international commercial arbitration (particularly: the New York Convention’s role) and insolvency, and of course modified universalism (on which see also this recent post by Bob Wessels, with ia analysis of the EU position). A delightfully sharp observation of key elements of international insolvency practice and policy.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

[2018] EWHC 3506 (QB) Kalma v African Minerals et al was held by the High Court on 19 December 2018. It essentially entails vicarious liability of UK-incorpored companies (jurisdiction firmly settled therefore) for human rights abuses committed by Sierra Leone police (SLP), who ensured security at the defendants’ mine. All claims were held to have failed. The judgment is lengthy and very factual, please refer to same.

Matrix have brief analysis here, critical reception of the judgment is inter alia here. The case does not raise the kind of jurisdictional or applicable law issues which trigger interest of this blog (such as yesterday’s post on Nevsun Resources). Nevertheless discussion of the factual involvement of the companies with SLP activities, required to establish vicarious liability, has echoes of the discussion on the level of oversight required for mother companies to be held liable for subsidiaries’ actions (such as e.g, in Apartheid or in various CSR cases making their way through UK courts).

Of additional note:

• Turner J’s discussion at 61 ff headed ‘keeping things in proportion’: the difficulty of a judge;s task, particularly at 63: ‘I make no complaint about the volume of written material which has been provided for my assistance. I have read all of it carefully. Both sides have been extremely well served by the industry and thoroughness of their respective legal teams. Inevitably, however, and for the sake of proportionality, I have had to leave a very considerable number of these points on the cutting room floor. This does not mean that I have failed to consider them or that I have discarded them as being entirely redundant but merely that the inclusion of their analysis or resolution in an already lengthy judgment would not have a material impact on the determination of the central issues.’ Less can be more.
• At 84: irrelevance of CSR discussions: ‘Both sides were very enthusiastic about the idea of setting the parameters of their evidence and submissions to cover broad issues concerning the general level of social responsibility displayed by the defendant – upon which topic they predictably entertained very different views. This, however, I have not permitted. The consequences of the exploration of such issues would have been entirely disproportionate, in terms both of time and costs, to the limited value of resolving them. For the same reason, I do not propose to adjudicate upon the rights and wrongs of the community and employment disputes which lay behind the incidents to which they gave rise.’

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Plenty of goings-on in the Corporate Social Responsibility /mass torts category, as regular readers of the blog and /or my Twitter-feed will know. Thank you Jutta Brunnée for alerting us to Nevsun Resources v Gize Ybeyo et al, currently making its way through the Canadian Supreme Court. Thank you also Cory Wanless for pointing out the core of the issue: Nevsun are not contesting jurisdiction (its existence is secure; much like in the EU context) e.g. on forum non conveniens grounds. Rather, the Supreme Court is asked whether there should be a new tort of breach of international law, and whether the “act of state” doctrine prevents adjudication.

The first question undoubtedly will lead to a discussion of similar issues raised in Kiobel, where they were not discussed by the USSC, and in Jesner Bank, where the USCC refused to be the dealmaker on public international law. The second issue is likely to imply consideration of the very foreign poicy considerations which featured heavily in circuit considerations prior to Kiobel.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Following the Second German Conference for Scholars in Private International Law, which will take place on 4 and 5 April 2019 at the University of Würzburg, Germany, the newly established research network Young Private International Law in Europe hosts a workshop on ‘Recognition/Acceptance of Legal Situations’. The organisers, Susanne Goessl (University of Bonn) and Martina Melcher (University of Graz), have kindly provided this invitation.

Thank you Christopher Burkett for alerting me to Heller v. Uber Technologies Inc., 2019 ONCA 1.  The case is reminiscent of California’s Senate Bill 1241 (review here) and of an article that I co-authored with Jutta Gangsted [‘Protected parties in European and American conflict of laws: a comparative analysis of individual employment contracts]. The starting point of the California, the EU rules, and the Canadian judgment is the same: employees cannot be considered to really consent to either choice of law or choice of court /dispute resolution hence any clause doing same will be subject to mandatory limitations.

Here, an arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber was held to be invalid and unenforceable, because it deprives an employee of the benefit of making a complaint to the Ministry of Labour under relevant Ontarian law.

Of note is that the judgment applies assuming the contract is one of employment – which remains to be determined under Ontarian law. Of note is also that the Court of appeal rejected Uber’s position that the validity is an issue for the arbitrator to determine because it is an issue going to the jurisdiction of the arbitrator. Uber invoked the “competence-competence” /kompetenz kompetenz principle in support of its position.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5.

On Thursday the Advocate-General will opine in C-136/17 G.C. e.a. and  C-507/17 Google (FR) – on which I reported ia here. The issue is, in the main, the territorial scope of EU data protection laws.

X v Google LLC at the Tribunal de grande instance de Paris on 14 November 2018 is a good warm-up, forwarded to me (for which many thanks) by Jef Ausloos (I have copy for those interested). The case concerns an article in Le Monde linking a French resident, active in international hotel management, to a Moroccan enquiry into pedophilia. The court’s review of the facts suggests an unsubstantiated link between X and the case – yet the damage to claimant’s reputation evidently is done nevertheless. Claimant requests delinking not just for searches performed in France on all Google extensions, but rather for all searches performed globally.

The court first of all observes that for searches performed in France, delisting of many of the identified urls has already happened – and orders on the basis of French law (which it applies, it suggests, per the GDPR) Google LLC to carry out delisting for the others in as far as searches are carried out from French territory. X’s privacy is given priority over freedom of expression and Google LLC’s US domicile is not mentioned as being relevant (no verbatim discussion of same is recorded in the judgment. X’s French nationality and domicile however, are, hence presumably it is the infamous Article 14  Code Civil which is at play here). Google’s argument that the as listed urls link to articles in languages other than French and relating to facts taking place outside of France is dismissed as irrelevant.

Claimant however had requested global delisting, regardless of the user’s geographical location. That, the court holds, is a request it cannot grant. Its refusal is justified in one sentence only: a global delisting order would be disproportionate in the case of a French national and resident, simply because his employment record is international:

‘une telle mesure apparaît ici disproportionnée, s’agissant d’un résident français, le seul caractère international de ces démarches d’emploi ne pouvant justifier d’une telle restriction, qui conduirait in fine à soumettre le réseau internet à une injonction de portée globale.’ 

The judgment therefore does not tackle the conceptual issues surrounding jurisdiction (which the Belgian courts, for instance, have been tempted into in the Facebook case), neither does it rule out global injunctions in cases which have more than just a fleeting international element.

Happy 2019.

Geert.

by Lukas Schmidt

Roughly two years ago the Commission presented the proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedure (see Blogpost ). After a lively debate the Council has now confirmed an agreement reached with the Parliament on the directive in December last year (see press release of 19 December 2018).

According to the press release several provisions were added or amended compared to the Council’s positions including the introduction of provisions on the duties of company directors in insolvency proceedings, an article on worker’s rights  to recall that member states should ensure that the existing rights of workers under national and Union law are not affected by the preventive restructuring procedure and provisions on the appointment of a restructuring practitioner.

The text still has to be formally adopted by the Council and Parliament. Member states will then have 2 years for implementation, although they can ask the Commission for an additional year for implementation.

As reported on Twitter by Pacta sunt servanda, the UK has just (on 2 January 2019) signed and ratified the 2005 Hague Convention on Choice of Court Agreements and the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance. Both Conventions currently apply to the UK by virtue of its membership of the European Union but may cease to do so once the UK leaves the EU on 29 March 2019. (The relevant notifications by the Dutch Ministry of Foreign Affairs can be found here and here.)

Importantly, both conventions have been ratified only for the event of a Brexit scenario in which no withdrawal agreement with the EU has been reached and contain the following qualification:

In accordance with Article 29 of the 2005 Hague Convention/Article 59 of the 2007 Hague Convention, the United Kingdom is bound by the Convention by virtue of its membership of the European Union, which approved the Convention on behalf of its Member States. The United Kingdom intends to continue to participate in the 2005/2007 Hague Convention after it withdraws from the European Union.

The Government of the United Kingdom and the European Council have reached political agreement on the text of a treaty (the “Withdrawal Agreement”) on the withdrawal of the
United Kingdom from the European Union and the European Atomic Energy Community. Subject to signature, ratification and approval by the parties, the Withdrawal Agreement
will enter into force on 30 March 2019.

The Withdrawal Agreement includes provisions for a transition period to start on 30 March 2019 and end on 31 December 2020 or such later date as is agreed by the United
Kingdom and the European Union (the “transition period”). In accordance with the Withdrawal Agreement, during the transition period, European Union law, including the
2005/2007 Hague Convention, would continue to be applicable to and in the United Kingdom. The European Union and the United Kingdom have agreed that the European Union will
notify other parties to international agreements that during the transition period the United Kingdom is treated as a Member State for the purposes of international agreements concluded by the European Union, including the 2005/2007 Hague Convention.

In the event that the Withdrawal Agreement is not ratified and approved by the United Kingdom and the European Union, however, the United Kingdom wishes to ensure continuity of application of the 2005/2007 Hague Convention from the point at which it ceases to be a Member State of the European Union. The United Kingdom has therefore submitted the Instrument of Accession in accordance with Article 27(4) of the 2005 Hague Convention/Article 58(2) of the 2007 Hague Conventio only in preparation for this situation. The Instrument of Accession declares that the United Kingdom accedes to the 2005 Hague Convention in its own right with effect from 1 April 2019.

In the event that the Withdrawal Agreement is signed, ratified and approved by the United Kingdom and the European Union and enters into force on 30 March 2019, the United Kingdom will withdraw the Instrument of Accession which it has today deposited. In that case, for the duration of the transition period as provided for in the Withdrawal Agreement as stated above, the United Kingdom will be treated as a Member State of the European Union and the 2005 Hague Convention will continue to ha ve effect accordingly.

In the past, it had been questioned if the UK would be able to ratify these conventions before having left the EU (see, eg, Dickinson, ZEuP 2017, 539, 560), which, if the “No Deal” scenario became a reality, would leave a period of at least three months in which the conventions would not apply. By ratifying the Conventions now, the UK seems to have reduced this potential gap to a single day as both conventions will enter into force for the UK on 1 April 2019.

Symeon Symeonides‘ Annual Survey of American Choice-of-Law Cases for 2018, now in its 32nd year, has been posted on SSRN. A summary of the contents is reproduced below. If you are interested in the Survey, you can download it by clicking here.
If you are interested in the Private International Law Bibliography for 2018, you can download it from SSRN by clicking here.

Symeon sends his best wishes for the New Year, and I concur.

Table of Contents

Introduction

I. The Extraterritorial Reach of Federal Law

A. The Alien Tort Statute

B. The Fourth and Fifth Amendments and Cross-Border Shootings

C.-M. Other Federal Statutes

II. Choice of Law

A. Proof of Foreign Law

B. Anti-Foreign Law Amendments

C. Choice-of-Law Methodology

D. Contracts

1. Contracts with Choice-of-Law Clauses

a. Choice of Procedural or Conflicts Law

b. Choice-of-Law Clauses and Statutes of Limitation

c. Plain Choice-of-Law Clauses

d. Choice-of-Law and Forum-Selection Clauses

e. Choice-of-Law and Arbitration Clauses

2. Contracts without Choice-of-Law Clauses

E. Torts

1. Common Domicile Cases

2. Cross-Border Unfair Trade Practices

3. Other Torts

F. Products Liability

G. Statutes of Limitation

H. Insurance Conflicts

I. Nazi-Looted Art

J. Domestic Relations

1. Marriage and Divorce

2. Marital Property

3. Adoption and Succession

4. Child Custody and the Hague Convention

III. Recognition of Foreign Judgments and Awards

A. Foreign-Country Judgments

B. Sister-State Judgments

C. Foreign Arbitral Awards

The American Association of Law Schools will hold its annual conference in New Orleans this year, from January 2-6. In this conference, the meeting of the Conflict of Laws Interest Group will be on Friday January 4, 8:30-10:15. (Yes, early.) The topic is the new Hague Judgments Convention (the draft Convention is here.) Speakers will include Louise Ellen Teitz (Rhode Island University) with a view from the Hague, Trey Childress (Pepperdine/State Dept) with a view from the State Department, and John Coyle (UNC) with a view from academia. I will chair. The remarks will be published later in the Duke Journal of Comparative and International Law, but if you are at the AALS Conference, please do come and discuss there!

On 22 January 2019, the Arendt House (Luxembourg) will host a conference organised by The Luxembourg Association of Law Graudates of the University of Louvain (UCL) and the Law Review Le droit des affaires – Het ondernemingsrecht (DAOR) on the Proposal for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims.

The conference will be chaired by Prof. Marie-Elodie Angel (University Paris Est Créteil, UPEC). Speakers, who will discuss assignment of claims, security rights and securitisation, include Prof. Denis Philippe (Philippe & Partners; University of Louvai), Grégory Minne (Arendt & Medernach; University of Luxembourg) and Jean-Paul Spang (Kleyr Grasso; University of Luxembourg).

The conference will be in French without translation into English.

Details are available here.

The Draft Guide to Good Practice on the Use of Video-Link under the Evidence Convention has been submitted for the approval of the HCCH governance body (i.e. the Council on General Affairs and Policy of the Hague Conference on Private International Law), which will meet in March 2019.

This Guide analyses developments in relation to the use of video-link in the taking of evidence under the Evidence Convention, including references to internal law and other international agreements. It also outlines good practices to be followed and reflects additional information provided by Contracting Parties in their respective Country Profiles.

In my personal opinion, the most striking conclusion was that responding States to the Country Profiles are almost evenly divided as to whether evidence may be taken directly by video-link by Letters of Request (under Chapter I of the Evidence Convention). In other words, there is no clear consensus on whether the requesting court can take evidence directly in the Requested State by video-link under Chapter I of the Evidence Convention (e.g. take testimony from a witness by videoconference). Some see legal obstacles whereas others do not. The Convention was after all negotiated in the late sixties. A question may arise as to whether an international treaty is needed to address particularly this issue and include the necessary safeguards for video-link taking of evidence.

The Court of Appeal for Ontario has upheld a decision of the Superior Court of Justice dismissing a $2 billion claim against Loblaws relating to the 2013 collapse of the Rana Plaza building in Savar, Bangladesh.  In Das v George Weston Limited, 2018 ONCA 1053 (available here) the court concluded that the claims were governed by the law of Bangladesh (not Ontario).  It went on to conclude that most of the claims were statute barred under the Bangladeshi limitation period and that it was “plain and obvious” that the remaining claims would fail under Bangladeshi tort law.

Unlike some of the recent cases in this area, this was not a case about a Canadian parent corporation and the operations of its own foreign subsidiary.  It was a case about a contractual supply relationship.  Loblaws bought clothes (to sell in its Canadian retail stores) from corporations whose workers manufactured the clothes in Rana Plaza.

The key conflict of laws point was the choice of law issue.  The rule in Ontario is that tort claims are governed by the law of the place of the tort: Tolofson v Jensen, [1994] 3 SCR 1022.  The plaintiffs had argued that they were suing Loblaws for negligent conduct that exposed those working in Rana Plaza to harm.  They argued that Loblaws had, by adopting corporate social responsibility policies and hiring Bureau Veritas to conduct periodic “social audits” of the workplace, assumed a degree of responsibility for the safety of the workplace in Bangladesh (para 20).  They argued that the key steps and decisions by Loblaws took place in Ontario rather than in Bangladesh and therefore Ontario was the place of the tort (para 80).  The court rejected these arguments.  It held that the place where the alleged wrongful activity occurred was Bangladesh (para 85), that the alleged duty was owed to people in Bangladesh (para 87) and that the injury suffered in Bangladesh “crystallized the alleged wrong” (para 90).

The court also refused to apply Tolofson‘s narrow exception to the place of the tort rule.  One reason the plaintiffs raised for triggering the exception was the lack of punitive damages under the law of Bangladesh.  The court noted that the lower court’s decision had suggested such damages might actually be available under that law, but in any case “the absence of the availability of punitive damages is not the type of issue that offends Canadian fundamental values” (para 95).  The court raised no basis on which to disagree with this analysis.

Because the applicable law was that of Bangladesh, and because some of the claims were not statute-barred, the court was required to do a detailed analysis of Bangladeshi tort law on the duty of care issue in order to determine whether those claims were to be dismissed as not viable.  This aspect of the decision may be the most disquieting, since there was little if any on-point authority in the Bangladeshi jurisprudence (para 130).  The court had to rely on experts who were relying on a considerable volume of Indian and English cases and then debating the extent to which these would impact the issue if determined by a Bangladeshi court.  Ultimately the court concluded that under Bangladeshi law the claims could not succeed.