Conflictoflaws

Dear LSGL members,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Applications must be submitted before 7 September 2018.

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

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

Further information is available here.

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

Theses conferences have just been published by the SLC.

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

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

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

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

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

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

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

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

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

The book can be ordered here.

The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of 5 funded PhD positions at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural law.

The IMPRS-SDR was established in 2009 to bring together academics and seasoned practitioners with excellent PhD candidates in international dispute settlement to examine and compare international dispute resolution from a legal and interdisciplinary perspective. It is a collaborative effort of several prestigious research institutions in Germany and Luxembourg, namely, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, Heidelberg University, the University of Luxembourg, the Max Planck Foundation for International Peace and the Rule of Law gGmbH, and the Max Planck Institute for Comparative Public Law and International Law.

In addition to providing a stimulating research environment, the IMPRS-SDR strives to furnish PhD candidates with theoretical and practical insights into the many facets of international dispute resolution.

Selected PhD candidates will receive full-time research contracts of initially two years, with a possible extension. They are embedded in one of the Departments and its activities while also participating in activities organized by the IMPRS-SDR.

For further information on the admission criteria and the application process, as well as to submit your application, please visit: https://www.mpi.lu/imprs-sdr/call-for-applications/2018/ . Closing date for applications is 31 August 2018.

Former Secretary General of the Hague Conference on Private International Law (HCCH), Hans van Loon, has just published a very interesting article on “Principles and building blocks for a global legal framework for transnational civil litigation in environmental matters” in the Uniform Law Review, Vol. 23, Issue 2, June 2018, pp. 298–318.  An abstract is available at https://doi.org/10.1093/ulr/uny020.

He suggests a number of basic structural components – building blocks – for a global legal framework for transnational civil litigation in environmental matters such as: jurisdiction, applicable law, recognition and enforcement, and judicial and administrative communication and co-operation (pp. 316-318).

Of particular note is the reference to Article 5(1)(j) of the Hague Draft Convention on the Judgments Project, which provides that a judgment is eligible for recognition and enforcement if one of the following requirements is met –

(j) the judgment ruled on a non-contractual obligation arising from death, physical injury, damage to or loss of tangible property, and the act or omission directly causing such harm occurred in the State of origin, irrespective of where that harm occurred.

The author notes the possible challenges that may arise when the harmful event occurred elsewhere (neither in the defendant’s home – Art. 5(1)(a) of the Draft Convention  – , nor in the State of Origin where the act or omission directly causing such harm occurred, see p. 315) and makes recommendations. For more information on this provision and its narrow scope, please refer to the Preliminary Explanatory Report of the Judgments Convention  (paragraph 162bis, pp. 34-35).

The last issue of the Revue critique de droit international privé will shortly be released. It contains several casenotes and an article, authored by Campbell McLachlan who is Professor of Law at Victoria University of Wellington (“Entre le conflit de lois, le droit international public et l’application internationale du droit public : le droit des relations externes des Etats »).

The abstract reads as follows:

The relationships between States and individuals of foreign nationality from the perspective of their constitutional rights and freedoms raise a series of issues that all States must resolve and that sit at the interface of the constitutional order of each of them and the intertional legal system through which they are connected. Today, this interface has progressively become porous, raising legal problems in increasing numbers and with increased frequency. The various responses generated thereby exercise a powerful influence over the legal imaginary, including on the ways in which a legal system represents its own relationship with the rest of the world. The thesis developed here is that such responses belong to a third discipline, in between the two traditional, public and private, branches of international law. This discipline can be called «  the law of external relations », borrowing a term from one of the Restatements of the United States but little used in Europe. In what follows, the possible conceptions of this disciplinary field will be explored, along with its relationship to private international law.

A full table of contents is available here.

By Frédéric Breger, Legal Officer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

The Permanent Bureau of the HCCH has just released Volume XXII of the Judges’ Newsletter (Summer-Fall 2018) with a Special Focus on “The Child’s Voice – 15 Years Later”.

This “Anniversary” Volume was published in co-operation with Professor Marilyn Freeman (University of Westminster, London, England) and Associate Professor Nicola Taylor (University of Otago, Dunedin, New Zealand) in the context of their British Academy research grant on the objection of the child under Article 13(2) of the 1980 Child Abduction Convention. It gathers contributions from 25 authors (academics, lawyers, judges, mediators, psychologists…) and covering approximately 15 jurisdictions on the topic of the “objection of the child” exception. The objective of this publication is to share good practices on how to hear children in the context of a child abduction case; it further outlines examples of guidelines and normative work developed across jurisdictions in relation to the voice of the child.

A French version of this Volume will be available in October 2018. All previous volumes of the Judges’ Newsletter are available here.

The Accelerated Route to Fellowship Program is a designed for senior practitioners in the field of dispute resolution procedures. Fellowship is the highest grade of Institute membership and allows the use of the designation FCIArb.The program focuses on applicable laws and procedures for the conduct of efficient arbitration hearings in complex international cases. Satisfactory assessment of performance in role play exercises will permit the candidate to take the award writing examination for qualification as a Fellow of the Chartered Institute of Arbitrators, which will be administered as part of the program.

Registration and other details are available here.

July 19, 6pm – 8pm

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabels Journal of Comparative and International Private Law” (RabelsZ) has now available. It contains the following articles:

Lord Reed, Comparative Law in the Supreme Court of the United Kingdom

Peter Mankowski, Über den Standort des Internationalen Zivilprozessrechts -Zwischen Internationalem Privatrecht und Zivilprozessrecht (International Procedural Law: Between Choice of Law and Procedural Law):

International procedural law is the link and the intermediary between choice of law and procedural law. Over the last decades it has developed into a fully grown sub-discipline of its own and of equal rank as choice of law. In fact, for practical purposes it has become even more important than choice of law. International procedural law benefits from its position in the middle and enjoys the best from its two neighbouring worlds of choice of law and procedural law.

Susanne Lilian Gössl, Anpassung im EU-Kollisionsrecht (Adaptation in EU Private International Law):

Adaptation or adjustment has to date received little general attention in EU private international law (EU PIL) despite this tool being of high importance in maintaining the coherence between the EU PIL system and national law. The Brussels Ia Regulation, the Succession Regulation and the Matrimonial/Registered Partnership Property Regimes Regulation explicitly provide for the tool of adaptation. Nevertheless, those provisions only deal with one certain category of that tool, what is termed transposition. In general, adaptation refers to the judge’s discretion to deliberately deviate from a rule in an exceptional case in which two different national laws apply in juxtaposition and the combined application could lead to a contradictory result intended by neither of the two national systems. Adaptation diminishes or eliminates those contradictions. The judge’s discretion to adapt national and EU rules implicates questions about the relationship between EU and Member State competence. The present analysis is the first to address this topic comprehensively. It develops a system to decrease contradictions between EU PIL and national law. As the EU PIL system is still only fragmentary, the analysis is twofold. First, the article analyses the necessity, requirements and means of adaptation in a case that is governed by two EU PIL rules. Second, the article analyses whether the outcome changes if the applicable law is determined by one EU PIL rule and one national PIL rule.

Alexander Hellgardt, Das Verbot der kollisionsrechtlichen Wahl nicht-staatlichen Rechts und das Unionsgrundrecht der Privatautonomie (Fundamental Right of Party Autonomy and the Prohibition Against the Choice of Non-State Law):

Choice of law is a cornerstone of European private international law. However, existing secondary law continues to restrict the choice to state law, excluding non-state law regimes like the Principles of European Contract Law, the UNIDROIT Principles of International Commercial Contracts or detailed standard-form contracts. This article tests the restriction against the principle of party autonomy, which is shown to be a European fundamental right. Party autonomy encompasses the right to choose nonstate law regimes in international cases. Any restriction on the choice of non-state law regimes, therefore, needs to be justified. Where private international law does not impose any restrictions on the choice of law, as is the case in the choice of contract law between commercial parties, there is no apparent justification for excluding the choice of non-state law regimes. Hence, European secondary law has to be interpreted in the light of the fundamental right of party autonomy. This allows commercial parties to choose non-state contract law regimes for their international transactions.

Harald Baum, Andreas M. Fleckner & Mihoko Sumida, Haftung für Pflicht-verletzungen von Börsen – Deutschland und Japan im Vergleich (Liability for Trading Irregularities at Stock Exchanges):

It appears from public records that no German stock exchange, exchange operator, or host state has ever been held liable by a court for trading irregularities at the exchange (such as clearly erroneous executions). The Tokyo Stock Exchange, in contrast, was ordered to pay damages of almost eleven billion yen (roughly 80 million euros) following the Mizuho case. This paper discusses how the issues raised by the Mizuho case would have been handled under German law and compares the results with the decisions of the courts in Japan.

The Faculty of Law at the University of Mannheim is looking for a research fellow (akademische Mitarbeiterin / akademischer Mitarbeiter) at the Chair for Private Law, International and European Business Law (Prof. Dr. Moritz Renner) on a part-time basis (50 %, E 13 TV-L) as of 1 September 2018 or later.

His/her tasks will include supporting the chairholder in research and teaching, especially in the areas of conflict of laws, company law, banking law, and foundations of law.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the supervision of the chairholder. The successful candidate holds a first law degree (Erste juristische Prüfung or equivalent) above average (at least “vollbefriedigend”). A very good command of German and English is required, further language skills will be an asset.

The position will be paid according to the salary scale E 13 TV-L. The contract period will be limited according to the Wissenschaftszeitvertragsgesetz.

The University of Mannheim aims at increasing the number of women in academia. Therefore, applications of qualified women are particularly welcome. Candidates with disabilities will be given preference in case of equal qualification.

If you are interested, please send your application (cover letter in German, CV, all relevant documents) by 31 July 2018 to: Professor Dr. Moritz Renner, Universität Mannheim, Lehrstuhl für Bürgerliches Recht, Internationales und Europäisches Wirtschaftsrecht, Schloss, D-68131 Mannheim, LS11@jura.uni-mannheim.de

The job advert in full detail is available here.

On 19-20 November 2018, the conference ‘Challenge Accepted! Exploring Pathways to Civil Justice in Europe’ will take place at the Erasmus School of Law in Rotterdam (under the ERC project Building EU Civil Justice). It will focus on how (1) the use of artificial intelligence in dispute resolution, (2) the privatisation of justice and the multiplication of alternative dispute resolution schemes, (3) the increased possibility of self-representation, and (4) court specialisation, in particular international commercial courts, influence the civil justice system. The panel descriptions are available here.

The full program with a great line-up of speakers and information on registration will follow soon.

A special call for applications for a one-year postdoctoral fellowship aimed at threatened researchers from developing countries (one or two bursaries can be awarded)

The details of the fellowship conditions are available on the web site at the following address:
https://uclouvain.be/en/research/news/call-for-applications-for-one-year-postdoctoral-fellowships.html

The deadline for submitting the application is August 31, 2018 at noon.

The decision is available here and further documentation is available in the following blog: http://www.scotusblog.com/case-files/cases/animal-science-products-inc-v-hebei-welcome-pharmaceutical-co-ltd/. I would also like to refer to previous posts by fellow editors here and here. The US Supreme Court held that: “A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.”

In a nutshell, the US Supreme Court said that the weight to be given to foreign government statements depends on the circumstances of the case. In particular, it notes that “[t]he appropriate weight [a federal court determining foreign law should give to the views presented by a foreign government] in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

One thing of note is that the US Supreme Court refers to Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, which is a very important case in the context of the Hague Evidence Convention.

Marmara University Law School in Istanbul/TURKEY is organizing an international conference on Contractual Issues in Private International Law on 11 October 2018. All the information regarding the application can be found at etkinlik.marmara.edu.tr/contractsinpil

The Spanish version of the 2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments has been made available here.

Peter Hay (Emory University, School of Law, USA) has recently published a new book on Private International Law and Procedure. Published in the Elgar Advanced Introduction Series the author has kindly provided the following (extended) summary:

This book deals with the problems that arise in international litigation in civil and commercial cases. Some are familiar problems – for instance, when does a court have jurisdiction over an out-of-state defendant? – except that the international context adds complexity. Other problems are unique to the settlement of international disputes, for instance, does another country’s law apply to the substance of the case and how does one get a domestic judgment recognized and enforced in a foreign country?

The presentation is problem-oriented and takes a comparative-law approach. The three parts of the book present the principal problems parties face in dealing with cases with an international dimension. The latter may be either parties in different countries dealing with each other or facts or elements of the case that involve more than the state where suit is brought (the forum state).

There are no international law solutions to these problems, despite the name of the subject of this advanced introduction. “Private International Law” is the national law of each country dealing with international cases involving private law subject matters. Answers to the litigation problems identified and discussed in the text may therefore differ somewhat or substantially depending on the national law lens through which these problems are viewed. For this reason, this volume uses a comparative approach.

There are, of course, many nuances in the national laws around the world (see the Encyclopedia of Private International Law). But two main “systems” (again with differences within each) stand out, at least in the Western world: the civil law system, derived and developed from Roman law, which is the basis of much of European, South American and some other law, and the common law that spread from England to the United States, Canada and the British Commonwealth. To narrow things down, this volume compares – in the main, but not exclusively – the law of the European Union as largely representative of civil-law solutions and the approaches followed in the United States for the common law.

It would be a vast, indeed misleading overstatement to say that the systems show evidence of converging. Nonetheless, and with problems and the need for solutions being similar, some solutions do resemble each other. As the Conclusion suggests, European law has made particular strides in evolving a modern Conflicts law, in some respects adopting some of the flexibility that characterizes American law, but doing this in a circumspect and very principled way. Work on a new Restatement in the United States and beginning work in the Hague Conference on Private International Law on a new effort to come up with a multilateral convention on jurisdiction and judgment recognition may result in significant developments in the not too distant future.

On 18 June 2018, Professor Dr. Christian Kohler, former General Director at the CJEU and honorary professor for private international law, European civil procedural law and comparative law at the University of Saarbrücken, celebrated his 75th birthday. On this occasion, numerous colleagues and friends both from the CJEU and European academia contributed to a liber amicorum in his honour: Burkhard Hess, Erik Jayme and Heinz-Peter Mansel (eds.), Europa als Rechts- und Lebensraum, Liber amicorum für Christian Kohler, Gieseking Verlag (Bielefeld) 2018; XII and 596 pp.; ISBN: 978-3-7694-1199-7. The volume contains 44 articles (mostly) on private international law in English, French and German (moreover, it features a touching French poem by Catherine Kessedjian). The full table of contents and further information are available at the publisher’s website here.

Following the successful international doctoral conference two years ago, the Faculty of Law in Rijeka is organising RiDoc 2018: Rijeka Doctoral Conference, to be held on 7 December 2018. The call for abstracts is available here and contains all the necessary details. It is important to note that the applications are welcome by 25 July 2018 and the results of the review will be known by 15 September 2018. Applications and any questions should be addressed to ridoc@pravri.hr.