Flux des sites DIP

La riforma del regolamento Bruxelles I. Il regolamento (UE) n. 1215/2012 sulla giurisdizione e l’efficacia delle decisioni in materia civile e commerciale, a cura di A. Malatesta, con la collaborazione di G. Vitellino e N. Nisi, Giuffrè, 2016, ISBN: 9788814212451, pp. 238, Euro 20.

[Dal sito dell’editore] – Il volume analizza le novità introdotte dal regolamento (UE) n. 1215/2012 del 12 dicembre 2012 (c.d. «Bruxelles I-bis»), alla disciplina concernente la competenza giurisdizionale e il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale. Dal 10 gennaio 2015 esso sostituisce il precedente regolamento (CE) n. 44/2001 del 22 dicembre 2000, il quale a sua volta era succeduto, “comunitarizzandola”, alla convenzione di Bruxelles del 1968, oggetto come noto ormai da oltre quarant’anni di applicazione nella prassi giudiziaria italiana. Il nuovo testo modifica in alcuni punti anche sensibilmente – si pensi solo all’abolizione dell’exequatur – la precedente normativa. Gli Autori si soffermano sugli aspetti di maggiore interesse per l’operatore giuridico italiano coinvolto in liti di carattere internazionale. Il volume è corredato da un’appendice completa e ragionata e da informazioni non immediatamente accessibili agli utenti.

L’indice dell’opera può essere consultato qui. Maggiori informazioni a questo indirizzo.

A joint conference of the Max Planck Institute for Procedural Law (Luxembourg) and the British Institute for International and Comparative Law will be held on May 26th in London, within the framework of a series of BIICL events on the Brexit.

This particular seminar will look at the potential impact of a Brexit on cross-border commercial dispute resolution and on the role of London as a center for international litigation and arbitration. Speakers will address selected questions such as the legal framework for the transitional period; the validity of choice of court agreements and future frequency of choice of court agreements in favour of English courts; the different approaches in England and under the Brussels I Recast as to parallel proceedings; the cross-border circulation of titles; the Swiss position as to commercial dispute resolution between Member States and third States. A roundtable discussion will place a particular focus on London’s future as a centre for commercial dispute resolution post Brexit.

Speakers:

• Burkhard Hess, Max Planck Institute Luxembourg
• Richard Fentiman, University of Cambridge
• Andrew Dickinson, University of Oxford
• Marta Requejo Isidro, Max Planck Institute Luxembourg/University of Santiago de Compostela
• Trevor Hartley, London School of Economics
• Alexander Layton QC, 20 Essex Street
• Tanja Domej, University of Zurich
• Thomas Pfeiffer, University of Heidelberg
• Paul Oberhammer, University of Vienna
• Adam Johnson, Herbert Smith Freehills
• Martin Howe QC, 8 New Square
• Karen Birch, Allen and Overy
• Diana Wallis, President of the European Law Institute and former Vice-President of the European Parliament
• Deba Das, Freshfields Bruckhaus Deringer LLP

Time: 15:30-19:00 (followed by a drinks reception)

Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

The program is available here; for registration click here.

On 3 May 2016, Neža Pogorelčnik Vogrinc (Univ. Ljubljana) will speak of Provisional measures in European civil procedural law in the framework of a workshop at the Rovigo branch of the Department of Law of the University of Ferrara.

Attendance is free. See here for more details.

Il 27 maggio 2016, l’Università  di Milano ospita un seminario dal titolo Cross-border litigation in Europe: Private International Law legislative framework, national courts and the Court of Justice of the European Union, nell’ambito del quale saranno presentati i risultati di una ricerca sull’applicazione in Italia dei regolamenti dell’Unione europea in materia di diritto internazionale privato e processuale realizzata nel quadro del progetto EUPILLAR.

Nel corso dei lavori, coordinati da Stefania Bariatti (Univ. Milano), interverranno, tra gli altri, Francesca Villata, Ilaria Viarengo, Jacopo Re, Filippo Marchetti e Sara Bernasconi (tutti Univ. Milano), Francesco Salerno (Univ. Ferrara), Peter Kindler (Univ. Ludwig-Maximilians-Universität München), Cristina Campiglio (Univ. Pavia), Maria Caterina Baruffi (Univ. Verona) e Rosario Espinosa Calabuig (Univ. Valencia).

Il programma completo ed ulteriori informazioni sono disponibili qui.

The British Institute of International and Comparative Law, the Open University and the Centre for Small States at Queen Mary University of London are organising a conference on “Integration and Dispute Resolution in Small States”, hosted by Wilmer Cutler Pickering Hale and Dorr LLP on May 19 and 20, 2016. The aim of this 1½ day conference is to bring together academics, representatives of Small States, as well as lawyers litigating in or for Small States (defined as those States with a population of 1.5m or less), to discuss the particular issues these jurisdictions face in regard to international dispute resolution and regional integration. The conference focusses in particular on the commercial relations between large economies and Small States, the role of Small States as financial centres, as well as B2B, Investor-State and State-to-State dispute resolution involving Small States.

View the full programme and register here.

Speakers and Chairs

Gary Born WilmerHale (Keynote speaker); Justice Winston Anderson Caribbean Court of Justice; Agnieszka Ason Technische Universität Berlin; Elizabeth Bakibinga Commonwealth Secretariat; Professor George Barker Australia National University; Dr David S Berry University of the West Indies; James Bridgeman FCIArb; N Jansen Calamita BIICL; Barbara Dohmann QC Blackstone Chambers; Conway Blake Debevoise & Plimpton LLP; Professor Sue Farran University of Northumbria; Stephen Fietta Partner at Fietta; Steven Finizio WilmerHale; Jack Graves Touro College of Law; Françoise L M Hendy Barbados High Commission; Desley Horton WilmerHale; Her Excellency Dr Len Ishmael Ambassador, Embassies of the Eastern Caribbean States; Michel Kallipetis QC Independent Mediators Limited and Quadrant Chambers; Edwini Kessie Office of the Chief Trade Advisor; Alex Layton QC 20 Essex Street; Dr Eva Lein BIICL; Brian McGarry Centre for Diplomacy & International Security, London Centre of International Law Practice; Professor Baldur Þórhallsson University of Iceland, Small States Studies; Lauge Poulsen University College London; Jan Yves Remy Sidley Austin; Dominic Roughton Herbert Smith Freehills LLP; Professor Francesco Schurr University of Liechtenstein; Geoff Sharp Clifton Chambers; Mele Tupou Ministry of Justice; UNCITRAL; Professor Robert G Volterra; Professor Gordon Walker Hamad Bin Khalifa University; Tony Willis Brick Court Chambers

The event is convened by:

Dr Petra Butler, Centre for Small States, Queen Mary University of London; Dr Eva Lein, British Institute of International and Comparative Law; Rhonson Salim, Open University.

L’Associazione Internazionale di Diritto delle Assicurazioni – Sezione Lombarda organizza per il 6 maggio 2016 a Milano un convegno dal titolo Assicurazioni e risarcimento dei danni da illecito transfrontaliero.

Intervengono, fra gli altri, Marco Frigessi di Rattalma (Univ. Brescia), con una relazione su Legge applicabile e giurisdizione in materia di assicurazione e risarcimento dei danni da illeciti transfrontalieri: problemi e prospettive, e Michele Comenale Pinto (Univ. Sassari), su Il sistema di risarcimento dei danni nel trasporto aereo di persone.

La partecipazione al convegno è gratuita, previa registrazione all’indirizzo email aida.meeting@libero.it.

Per maggiori informazioni, compreso il programma completo, si veda qui.

Maria Chiara Marullo and Francisco Javier Zamora Cabot have published a paper on “TRANSNATIONAL HUMAN RIGHTS LITIGATIONS. KIOBEL’S TOUCH AND CONCERN: A TEST UNDER CONSTRUCTION.”

The abstract reads:

In recent years the international debate on Transnational Human Rights Litigation has mainly focused, although not exclusively, on the role of the Alien Tort Claims Act as a way of redress for serious Human Rights violations. This Act has given the possibility of granting a restorative response to victims, in a Country, such as the United States of America, that assumes the defense of an interest of the International Community as a whole: to guarantee the access to justice to the aforesaid victims. The purpose of this article is to analyze the recent and restrictive position on this Act of the Supreme Court of the United States, in the Kiobel case, and especially when, as a means of modulating the limitative doctrine affirmed there, the Touch and Concern test was introduced. It has generated from its very inception a strong discussion amongst international legal scholars and also great repercussions concerning the practice of the U.S. District and Circuit Courts.

The publication can be downloaded here. 

The Permanent Bureau of the Hague Conference on Private International Law and the University of Lucerne are organising a conference “Towards a Global Framework for International Commercial Transactions: Implementing the Hague Principles on Choice of Law in International Commercial Contracts” in Lucerne on 8-9 September 2016.

The purpose of this conference is to present the impact and prospects of the Hague Principles of 2015 in the context of other instruments applicable to international commercial transactions.

For the programme and registration information see the conference’s website.

Perhaps because it so reflected our children’s character [all ‘Duracell‘ kids] there is one part of Dr Seuss’ Cat in the Hat which has always stuck with me:

so all we could do was to

sit!

   sit!

      sit!

         sit!

and we did not like it.

not one little bit.

I was reminded of the line, reading Bot AG’s Opinion in Case C-492/14, ‘Essent 2.0’ (not yet available in English at the time of writing). In order to promote the generation of renewable energy, Flanders law makes transmission of electricity generated from renewable sources, free of charge. However this courtesy is limited to electricity generated in installations directly connected to the grid. Essent imports (a considerable part of) its green electricity from The Netherlands. It does not therefore enjoy free transmission.

Bot’s disapproval of trade restrictions like these is well established and has often been reported on this blog. The CJEU disagrees with its AG on many of the issues. I am in general of the same view as the AG. Mr Bot continues to find the Court’s case-law unconvincing and makes no attempt to hide it. He repeatedly mentions that he is duty-bound to apply Essent /Vindkraft without believing they are good law. It is with obvious regret that he Opines that given the Court’s stand in Essent /Vindkraft, he has no option but to propose that the Court find the Flemish regime acceptable.

The AG does however leave open a future window for change: in particular, if and when the secondary law regime on renewable energy specifically, and energy as a whole, is amended, one may be able to distinguish Essent /Vindkraft.

Bot also reminds us of the unclear position of environmental exceptions under Article 36 TFEU and the Rule of Reason. He calls upon the Court formally to acknowledge that the Cassis de Dijon distinction between the Rule of Reason and Article 36 (the former does not allow ‘distinctly applicable’ national measures (read’ discrimination) while the latter does) no longer exists.

I do not like judgment in Preussen Elektra. Or in Essent. Not one little bit. It discourages the creation of a true European energy market. Perhaps the Court will surprise us all in Essent 2.0 and will correct some of the damage it has done with its standing case-law on the matter.

Geert.

Clayton P. Gillette, Steven D. Walt, The UN Convention on Contracts for the International Sale of Goods: Theory and Practice, Cambridge University Press, 2016, ISBN 9781316604168, pp. 451, GBP 37,99.

[Dal sito dell’editore] – Updated and expanded for the second edition, this volume provides attorneys, academics and students with a detailed yet accessible overview of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Adopted by more than eighty nations and governing a significant portion of international sales, the CISG regulates contract formation, performance, risk of loss, conformity to contractual requirements and remedies for breach. This volume explains the CISG doctrines and their ambiguities, and appraises the extent to which the doctrines reduce transaction costs for commercial actors. Its topic-based approach will be ideal for those pursuing academic analysis or subject-specific research.

Il sommario dell’opera è consultabile qui. Maggiori informazioni sono disponibili a questo indirizzo.

Each year, the Swiss Institute of Comparative Law awards a certain number of scholarships to support academic research in the field of comparative and international law.

As for the year 2017, the Institute especially welcomes applications on the topics of Business and Human Rights and Communication and Internet law.

Preference shall be given to applicants who have never carried out research activities outside their country of origin and wish to pursue an academic career.  Fluency in at least two of the following languages is required: English, French and German.

The deadline for submitting applications is 30 June 2016.

The call for applications can be downloaded here. Further information is available at the following link.

Cross-border Litigation in Europe: the Brussels I Recast Regulation as a Panacea?, a cura di Franco Ferrari e Francesca Ragno, Cedam, 2016, pp. XIII-190, ISBN: 9788813358310, Euro 29.

[Dal sito dell’editore] – The Brussels I Regime […] is widely considered to be the foundation stone of a “European Law of Procedure” and to have enhanced cross-border litigation in Europe through an efficient system of judicial cooperation based on comprehensive jurisdiction rules, coordination of parallel proceedings, and circulation of judgments. In spite of its overall success, the system has been viewed as in need of modernization and has undergone a revision process, which led to the adoption of the EU Regulation No 1215/2012 (the “Brussels I Recast Regulation”), which became applicable on 10 January 2015. In this book, various authors examine in detail the most important changes introduced by this instrument, focus on the issues still open and address the problems arising out of the coexistence of the new Regulation with other instruments in force in Europe. Not unlike the previous book on the Brussels I Recast Proposal published in this series, this volume aims at contributing to what has been an exciting discussion in the past and is likely to be so for years to come.

Il volume racchiude gli atti del convegno tenutosi a Verona il 28 e 29 novembre 2014, già segnalato in questo post.

Maggiori informazioni e l’indice dell’opera sono disponibili a questo indirizzo.

by Veerle Van den Eeckhout

On the blog section of the Dutch journal Nederlands Juristenblad, a blog of Veerle Van Den Eeckhout on the Proposal for a revision of the Posting Directive has been published, see here.

The blog is entitled “Modellering van internationaal privaatrecht – Een enkele ipr-technische aantekening bij het voorstel tot wijziging van de Detacheringsrichtlijn” (in English: “Modelling Private International Law. A single PIL-technical note on the proposed revision of the Posting Directive”). It is written in Dutch.

The blog focuses on a single technical PIL-aspect of the proposed revision of the Posting Directive; at the end, however, the issue is placed in a broader context of ongoing dynamics and debates in private international law – see also already on this the blog “The impact and potential of a curious and unique discipline. About PIL, Shell Nigeria, European and global competition and social justice”, published also on the blog section of the NJB-site, see here , available in English on  http://conflictoflaws.net/2015/on-pil-international-labour-law-and-corporate-social-responsibility/.

The topic of the 28th Conference of Private International Law of the Swiss Institute of Comparative Law, organised in cooperation with the Faculty of Law of the University of Neuchâtel, is Les banques et les assurances face aux tiers et les nouveautés en matière de faillite internationale.

The conference will take place in Lausanne on 27th May 2016.

The morning session will present recent developments in international bankruptcy, with a particular focus on the draft revision of the Swiss Federal Act on Private International Law, the practical impact of bankruptcy on civil proceedings and arbitration, as well as issues of international bankruptcy in banking.

The afternoon session will address legal relationships that involve three parties, focusing in particular on the situation of banks and insurance companies vis-à-vis third parties. Recent developments in Switzerland and the EU will be examined, including the issue of third party’s right to obtain banking information in the context of successions.

Presentations will be in French and English.

For the full program please see here. Registrations at news@isdc.ch.

The following information have kindly been provided by Prof. Dr. Matthias Lehmann, University of Bonn.

Bank resolution is key to avoiding a repetition of the global financial crisis in which failing financial institutions had to be bailed out with taxpayers’ money. It permits recapitalizing banks or alternatively winding them down in an orderly fashion without creating systemic risk. Resolution measures, however, suffer from a structural weakness. They are taken by nation-states with territorially limited powers, yet they target entities or groups with global activities and assets in many countries. Under traditional rules of private international law, these activities and assets are governed by the law of other states which is beyond the remit of the state undertaking the resolution.

Matthias Lehmann (University of Bonn) addresses this problem in a recent paper titled “Bail-in and Private International Law: How to Make Bank Resolution Measures Effective Across Borders”. He illustrates the conflict between resolution and private international law by using the example of the European Union, where the limitations of cross-border issues are most acutely felt. He explains the techniques and mechanisms provided in the Bank Recovery and Resolution Directive (BRRD) and the Single Resolution Mechanism (SRM) Regulation to make resolution measures effective in intra-Eurozone cases, in intra-EU conflicts with non-Euro Member States and in relation to conflicts with third countries. Besides this, he also throws light on the divergences and flaws in the BRRD’s transposition into national law. In this context, he discusses two recent cases, Goldman Sachs International v Novo Banco SA [2015] EWHC 2371 (Comm), and BayernLB v Hypo Alpe Adria (HETA case) Regional Court, Munich I, judgment of 8 May 2015, that have dealt with the recognition of foreign resolution acts. A brief overview of third-country regimes furthermore highlights the problems in obtaining recognition of EU resolution measures abroad.

Thank you Fieke van Overbeeke for pointing this out to me. The EC have proposed to amend the posted workers Directive, to address unfair practices and promote the principle that the same work at the same place be remunerated in the same manner.

The amendment essentially relates to Article 8(2) of the Rome I Regulation, which partially corrects choice of law made in the context of contracts for employment. The proposal amounts to Union harmonisation of the concept ‘temporary employment’, as one not exceeding 24 months.

The proposal, if adopted, would insert an Article 2a in the posted workers Directive, 96/71, as follows:

Article 2a
Posting exceeding twenty-four months
1. When the anticipated or the effective duration of posting exceeds twenty-four
months, the Member State to whose territory a worker is posted shall be deemed to
be the country in which his or her work is habitually carried out.
2. For the purpose of paragraph 1, in case of replacement of posted workers
performing the same task at the same place, the cumulative duration of the posting
periods of the workers concerned shall be taken into account, with regard to workers
that are posted for an effective duration of at least six months.

Recitals 6-8 give context:

(6) The Rome I Regulation generally permits employers and employees to choose the law
applicable to the employment contract. However, the employee must not be deprived
of the protection of the mandatory rules of the law of the country in which or, failing
that, from which the employee habitually carries out his work. In the absence of
choice, the contract is governed by the law of the country in which or, failing that,
from which the employee habitually carries out his work in performance of the
contract.
(7) The Rome I Regulation provides that the country where the work is habitually carried
out shall not be deemed to have changed if he is temporarily employed in another
country.
(8) In view of the long duration of certain posting assignments, it is necessary to provide
that, in case of posting lasting for periods higher than 24 months, the host Member
State is deemed to be the country in which the work is carried out. In accordance with
the principle of Rome I Regulation, the law of the host Member Sates therefore applies
to the employment contract of such posted workers if no other choice of law was made
by the parties. In case a different choice was made, it cannot, however, have the result
of depriving the employee of the protection afforded to him by provisions that cannot
be derogated from by agreement under the law of the host Member State. This should
apply from the start of the posting assignment whenever it is envisaged for more than
24 months and from the first day subsequent to the 24 months when it effectively
exceeds this duration. This rule does not affect the right of undertakings posting
workers to the territory of another Member State to invoke the freedom to provide
services in circumstances also where the posting exceeds 24 months. The purpose is
merely to create legal certainty in the application of the Rome I Regulation to a
specific situation, without amending that Regulation in any way. The employee will in
particular enjoy the protection and benefits pursuant to the Rome I Regulation.

It would obviously be attractive to ensure the same rule is verbatim included in a future amendment of the Rome I Regulation.

Geert.

(Handbook of) EU Private International Law, 2nd ed 2016, Chapter 3, Heading 3.2.5.

The following announcement has been kindly provided by Professor Dr. Stephan Lorenz, LMU Munich.

It was in 1916 that Ernst Rabel founded the ‘Institute of Comparative Law’ at Munich University – the first of its kind in Germany. The 100th Anniversary of the Institute, which still persists as a department of the Institute of International Law at Ludwig-Maximilians-University Munich, gives reason to review the influence of Ernst Rabel on both, sales law and conflict of laws and to take a current view on recent developments in these fields. As is well-known, Rabel’s work on sales law was highly influential for the development of the Hague Uniform Sales Law of 1964, the precursor of the CISG of 1980. The latter had a formative impact on EU consumer sales law and subsequently on the proposal for a Common European Sales Law (CESL). But also the current contractual conflict of laws of the EU as the Rome I-Regulation would not exist in its current form without the fundamental contributions of Ernst Rabel. The presentations of the conference cover the entire range of these topics from the beginnings of comparative law and its early years until its most recent developments:

• Dean’s Greeting, Prof. Dr. Martin Franzen
• Introductory Speech, Prof. Dr. Peter Kindler
• The History of the Institute of Comparative Law, Prof. Dr. Dagmar Coester-Waltjen, München/Göttingen
• Welcome and Introduction, Prof. Dr. Dr. h.c. mult. Hans Jürgen Sonnenberger, München
• Ernst Rabel – The Munich Years, Archivdirektor a.D. Hans-Joachim Hecker, Stadtarchiv München
• Karl Neumeyer as a Pioneer of Comparative Law in the field of Public Law, Prof. Dr. Peter Huber, Judge at the Federal Constitutional Court (Bundesverfassungsgericht), München
• Rabel’s Influence on the CISG and the Development of European Sales Law, Prof. Dr. Ulrich Magnus, Hamburg
• The Distinction between Digital and Analogous Goods – How fit for the Future are the Commission’s Proposals for a Law of Contracts in the Digital Interior Market?, Univ.-Prof. Dr. Christiane Wendehorst, LL.M. (Cambridge), Wien
• International Contract Law and CISG, Prof. Dr. Andreas Spickhoff, München
• Transaction-like Party Autonomy, Prof. Dr. Marc-Philippe Weller, Heidelberg
• Conclusions, Prof. Dr. Stephan Lorenz, München

Participation in the Conference requires prior registration here.

The American Branch of the International Law Association has issued a call for papers.  See here for more details.

From the Private International Law Interest Group of the American Society of International Law:

We are pleased to present the second issue of “Commentaries on Private International Law,” the newsletter of the American Society of International Law Private International Law Interest Group.

You may find it here and here.

Professor Anthony Colangelo of the SMU Dedman School of Law has just posted a new article entitled A Systems Theory of Fragmentation and Harmonization.  It blends public and private international law and has a strong dose of conflict of laws.  It is well worth the read!

Also, as a friendly reminder, there is a wonderful SSRN eJournal on Transnational Litigation/Arbitration, Private International Law, and Conflict of Laws that is available here.