Conflictoflaws

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Thursday 21 and Friday 22 June 2018 the Summer School in International Financial Law. Participation is free of charge, but registration is compulsory at Eventbrite. The sessions will be held in English with simultaneous translation into Italian. Here is the programme (available for download):

Thursday 21 June 2018 – 14h00

14h30 Welcome Address

• Giuseppe De Luca, Deputy-Rector, University of Milan
• Ilaria Viarengo, Director of the Department of International, Legal, Historical and Political Studies

15h00 Cross-Border Company Matters

Chair: Manlio Frigo, University of Milan

• The EU Proposal for a Directive on Cross-Border Conversions, Mergers and Divisions (Bartlomiej Kurcz, DG Justice and Consumers, European Commission)
• A German Perspective (Leonhard Hübner, University of Heidelberg)
• An Italian Private International Law Perspective (Francesca C. Villata, University of Milan)
• Italian and Comparative Corporate Law Perspectives (Marco Ventoruzzo, Bocconi University)

General discussion (with the participation of Maria Vittoria Fuoco, Department on the Functioning of the Judiciary, Italian Ministry of Justice)

– – –

Thursday 21 June 2018 – 17h30

17h30 Taking Security over Shares and Other Financial Securities

Chair: Giovanna Adinolfi, University of Milan

• Investors Rights in Securities and Shareholdings in the Post-CSDR Era (Christina Tarnanidou, University of Athens of Economics and Business, Rokas, Athens)
• Securities settlement through T2S (Aranzazu Ullivarri Royuela, BME Post Trade Services, Madrid)

General discussion

– – –

Friday 22 June 2018 – 9h30

9h30 Financial Collaterals and Bonds

Chair: Giovanna Adinolfi, University of Milan

• Cross-Border Financial Collateral within the Eurosystem (Klaus Loeber, Market Infrastructures and Payments, European Central Bank)
• Bonds Issuance (Matthias Lehmann, Rheinischen Friedrich-Wilhelms-Universität Bonn)

General discussion

10h45 – 13h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Francesca C. Villata, University of Milan

• Presentation of the Proposal (Maria Vilar-Badia, DG Justice and Consumers, European Commission)
• Factoring (Christine Van Gallebaert, Université Paris 2 Panthéon-Assas, Jones Day, Paris)
• Collateralization (Joanna Perkins, Financial Markets Law Committee, London)

General discussion

– – –

Friday 22 June 2018 – 14h00

14h00 – 17h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Stefania Bariatti, University of Milan

• Securitization (Gilles Cuniberti, University of Luxembourg)
• Selected practical issues (Francisco Garcimartín Alférez, Universidad Autónoma de Madrid, Linklaters, Madrid)
• The Relationship with the EU Regulation on Cross-Border Insolvency (Stefania Bariatti, University of Milan, Chiomenti, Milan)
• The Relationship with the EU Rules on the Cross-Border Insolvency of Banks and Insurances (Matthias Haentjens, University of Leiden)

General discussion – Closing Remarks

(Many thanks to Prof. Francesca Villata for the tip-off)

Erasmus School of Law (under the ERC project Building EU Civil Justice) in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University) are hosting the seminar ‘Innovating International Business Courts: A European Outlook’ that will take place in Rotterdam on 10 July 2018.

In relation thereto Erasmus Law Review invites submissions for its upcoming special issue on International Business Courts – a European and Global Perspective on topics relating to court specialization, specifically relating to the development of international business courts in Europe and beyond, and focusing on justice innovation and their relevance for access to justice and the judicial system, including the challenges they may pose for judicial administration, litigants and other stakeholders. Contributions can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches are especially encouraged. The issue will also include papers focusing on the Netherlands, the United Kingdom (England and Wales), France, Germany, and Belgium, and deriving from the seminar.

Authors of selected papers will be exempt from registration fees for the seminar and will have the opportunity to present a poster during the drinks after the seminar.

Please submit an abstract in English of no more than 500 words to Erlis Themeli (themeli@law.eur.nl) and Alexandre Biard (biard@law.eur.nl) before 10 June 2018. Please include your name, affiliation, and a link to your research profile. You will be informed on the outcome on 24 June 2018 at the latest. Responsible issue editors are Xandra Kramer (Erasmus University Rotterdam/Utrecht Utrecht) and John Sorabji (University College, London).

The final paper should be 8,000-12,000 words in length (including footnotes) and must comply with the Erasmus Law Review’s Authors Guidelines. Selected papers will go through the regular double-blind peer review process and publication is subject to the outcome of this review process. The deadline for submission of the paper is 1 October 2018.

For more information see the Call for Papers.

Professor Hannah Buxbaum has recently published an important report (see here), prepared for the International Academy of Comparative Law’s International Congress, on forum selection clauses.  Below is the abstract.

Abstract

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case?

This report, prepared for the International Academy of Comparative Law in connection with its XXth International Congress, analyzes the approach to these questions in the United States. The bottom line is straightforward: almost always, in consumer as well as commercial contracts, forum selection clauses will be enforced. Navigating the array of substantive, procedural, and conflicts rules whose interplay yields that result, though, is far less straightforward. That is the task of this report. Following a short background, it surveys current state law on their use, in consumer as well as commercial contracts. The report then discusses the interpretation and enforcement of forum selection clauses in both state and federal courts. It analyzes their effect on jurisdiction as well as on doctrines involving venue, such as removal and forum non conveniens. The report also covers choice of law problems, particularly as they arise in the course of litigation in federal courts.

To celebrate its 30th Private International Law Day, the SICL is holding a conference devoted to the new challenges of what is sometimes described as the “collaborative” or “sharing” economy. It will take place in Lausanne on 28th June 2018.

The concept of economy includes crowdfunding, “Uberisation” and all other intermediary activities using a digital platform. These mass phenomena, witnessed on a global scale, put in question the very notion of the territorial division of state borders. Is the digital space in which these platforms operate a true space, capable of being delineated and regulated at the national level, and which falls into the territorial scope of application of a law? Or is it rather a volatile cloud, globalised, delocalised, incapable of being pinned down on such a territorial basis? Is it still possible for nation states to guarantee their citizens and/or residents legal protection with regard to the intermediaries who employ them or who offer them their services? Or has it not become essential, even urgent, that a supranational law be devised and placed in the same cloudy skies in which the platform operates? Further still: is it possible to require platforms and their operators to be measured against the particular requirements of a state, notably those concerning the protection of workers and consumers? What role can contemporary private international law play in this regard?

All these questions present a challenge to the supposed neutrality sought by private international law and bring to the fore its potential political and protective role. In this respect, the state can use private international law in order to guarantee cross border protection to the weakest actors in the marketplace – notably, workers and consumers – who reside within its territory (and/or its citizens). On the other hand, however, it may be argued that state interference aimed at constraining those who operate in the digital economy may lead to harmful distortions of the global market. In this regard, what guarantees should be afforded to the freedom of the internet and, at the same time, to that of workers, whose decisions to join and work with a digital platform are made of their own free will? These considerations therefore demand that we draw on the traditional principles of party autonomy and decisional harmony. Speakers include Janine Berg, ILO Genève, Andrea Bonomi, Université de Lausanne, Miriam Cherry, University of St. Louis, Valerio De Stefano, KU Leuven, Marie-Cécile Escande Varniol, Université Lumière, Lyon II, Pietro Franzina, Università degli Studi di Ferrara, Ljupcho Grozdanovski, Université de Genève, Florence Guillaume, Université de Neuchâtel, Tobias Lutzi, University of Oxford, Anne Meier, MSS Law, Edmondo Mostacci, Università Bocconi, Etienne Pataut, Université Paris 1, Panthéon-Sorbonne, Ilaria Pretelli, Institut suisse de droit comparé, Teresa Rodríguez de las Heras Ballell, Universidad Carlos III de Madrid, Gian Paolo Romano, Université de Genève, et Gerald Spindler, Georg-August-Universität.

Click here for whole program and further information.

The European Commission has published yesterday two communications, proposing the amendment of the Evidence and Service Regulations (1201/2000 & 1393/2007 respectively).

The texts can be retrieved here  & here.

The key amendments suggested by both proposals have been summarized by Prof. Emmanuel Guinchard here & here.

Edited by Delphine Porcheron, Mélanie Schmitt and Juliette Lelieur

The University of Strasbourg is organizing workshop series on the protection of Human Rights in transnational situations. The research is conducted in criminal law, labour law, and private international law. After the first meeting which took place last January with the presence of Horatia Muir Watt, Dominique Ritleng and Patrick Wachsmann, the second one will be held in Strasbourg on June 5, focusing on civil and environmental liabilities and private international law.

 

Speakers include :

• Bénédicte Girard, University of Strasbourg
• Marie-Pierre Camproux, University of Strasbourg
• Pauline Abadie, University of Paris Sud
• Fabien Marchadier, University of Poitiers
• Patrick Kinsch, University of Luxembourg, Attorney at law Luxembourg
• Louis d’Avout, University of Paris II
• Jean-Sylvestre Bergé, University of Lyon III
• Caroline Kleiner, University of Strasbourg

For more information click here.

Both the English and French versions of the HCCH Draft Convention on the Recognition and Enforcement of Foreign Judgments have been just uploaded onto the Hague Conference website (< www.hcch.net >). See News and Events here.

This text will form the basis of the discussions at the Diplomatic Session meeting in 2019.

David Restrepo Amariles (HEC Paris), Eva Mouial Bassilana (Université Côte d’Azur) and Matteo Winkler (HEC Paris) have posted on SSRN an article titled The Impact of the French Doctrine of Significant Imbalance on International Business Transactions. The paper is forthcoming on the Journal of Business Law.

The abstract reads as follows.

This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1 October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy v Expedia, Inc (2015) had qualified SI as an “overriding mandatory provision” (“loi de police”) under Regulation 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting the French legislator’s disapproval of SI allocates great power to French courts and the French Government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared with those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case law throughout the years, will give rise to uncertainty in international business transactions and may eventually disadvantage France in the global competition in such a field.

The programme of the 2018 edition of the International Seminar on Private International Law organized by Prof. Fernández Rozas and Prof. De Miguel Asensio, has been released and is available here. In this occasion, the Seminar is jointly organized with Prof. Moura Vicente and is to be held at the Law Faculty of the University of Lisbonne on 13-14 September 2018. The Seminar, which is closely connected to the legal journal Anuario Español de Derecho internacional privado, will be structured in five sections: Family and Successions; International Commercial Arbitration: International Business Law; Private International Law and IT Law; and Codification of PIL with a special focus on Latin America. The Conference will bring together around fifty speakers from more than twelve countries. Additional information about the seminar is available here.

Thanks to Héloïse Meur, Lilia Aït Ahmed and Estelle Gallant for this post.

On June 21, 2018 a full-day colloquium will take place in Paris on the protection of unaccompanied minors at the former Courthouse.

The colloquium will see the participation of high-hand speakers from institutions facing the issue of unaccompanied minors :

• French public authorities (French authority to protect human rights and civil liberties, French national consultative committee on human rights), • French Supreme Court, • The Paris Bar, • Major civil associations (GISTI, ECPAT, La Cabane juridique), • French and Belgian professors and Phd candidates in law and geography.

The speakers will discuss the root causes of the migration flows of unaccompanied minors, the limits of their treatment by French authorities, the difficulties to coordinate with other EU member States, and envisage the possible room for improvements, notably vis-à-vis what is done abroad, and especially in Belgium.

The program is available here. For registration send an email to colloquemna@gmail.com.

 

Today the fourth meeting of the Special Commission on the Recognition and Enforcement of Foreign Judgments concluded in The Hague. Further information (incl. a revised Draft Convention text) will be uploaded on the Hague Conference website soon (< www.hcch.net >). Please check this website for the latest updates.

A background document related to the Treatment of Intellectual Property-Related Judgments under the November 2017 draft Convention was published this month by the Hague Conference (HCCH). It was drafted by the co-Rapporteurs of the draft Convention (Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain and Geneviève Saumier, McGill University, Canada) and the Permanent Bureau. This document will be discussed at the Diplomatic Session (a high-level negotiation meeting with a view to adopting a final text – envisaged to take place in mid-2019) and was not meant to be discussed at this Special Commission.

For those of you who are interested in the interaction between intellectual property rights and the Judgments Project, please refer to the above-mentioned background document (instead of the Revised Preliminary Explanatory Report as this will be further revised to reflect the content of this document).

The School of Law of the University of Bologna is organizing the III Edition of the Summer School on European and Comparative Environmental Law, to be held in Ravenna, July 9-13, 2018.

For more information click here.

You can also get directly in touch with Prof. Lupoi [micheleangelo.lupoi@unibo.it].

 

Thanks to Horatia Muir Watt and Hélène van Lith (Sciences Po) for this post

Moving from Paris to The Hague for the PAX MOOT Finals – Moot Court Conflict of Laws/Droit International Privé – 6th Edition
Sciences Po – Law School / école de droit

The PAX Moot Eliminatory Round took place last Tuesday in Paris with 8 universities mooting the cross border climate change moot case which addressed a number of complex transnational legal questions in Private International Law and was generously hosted by the ICC (see also our previous post).
The four winning teams who made it to the finals are Erasmus University Rotterdam, University of Heidelberg, Paris I Sorbonne and Sciences Po.
The Panel of the PAX Moot Court Judges consisted of the following members:

Hans van Loon – Former Secretary General of the HCCH (The Hague)
Agnès Maitrepierre – Cour de cassation (Paris)
Daan Lunsingh Scheurleer –Nauta Dutilh (Amsterdam)/ Christine Lecuyer- Thieffry (Paris)
Clément Dupoirier – Herbert Smith Freehills (Paris)
Patrick Thieffry – Environmental Lawyer and Associate Professor. (Paris)
Alexis Foucard – Clifford Chance (Paris)
Michal Chajdukowski and Vasili Rotaru (PAX moot winning team 2017)
The PAX Moot Finals will be held on 1 June at the Peace Palace – hence the name – in The Hague, paying tribute to the city as the “legal capital of the world” and home of The Hague Conference of Private International Law, which also marks its 125th anniversary.

The winning Mooters and best pleaders will be rewarded with an internship at international commercial litigation departments of renowned law firms Nauta Dutilh in Amsterdam and Herbert Smith in Paris.
The concept and goal of the PAX Moot is to study and apply private international law for the resolution of cross border disputes through a concrete problem “the Case” and to train law students and practitioners of tomorrow in arguing and analysing complex global legal questions in international litigation.

The inter-university PAX Moot organized by Sciences Po Law School is a pleading competition addressing issues of Private International Law and this year’s 6th edition has gone global to include teams from universities in Europe and beyond. The organizers thank the following institutions for their support and willingness to open the competition to their students: Sorbonne University Paris I, London School of Economics, HEC, Heidelberg University, Luxembourg University, Cambridge University, University College London (UCL), King’s College London, University of Antwerp, Erasmus University, Université Libre de Bruxelles (ULB), Sciences Po Law School and Statale University of Milan. Participation was also open to US exchange students from Harvard, Columbia, Duke, Northwestern, Northeastern, Duke and Penn law schools.

Inquiries can be addressed to Dr. Hélène van Lith by email at helene.vanlith@sciencespo.fr

The 2017 Hague Lecture of Professor Burkhard Hess has been published in Recueil des Cours, vol. 388, pg. 49-266.

The Lecture addresses dispute resolution in international cases from the classical perspective of the private-public divide. This distinction is known in almost all legal systems of the world, and it operates in both domestic and in international settings. The main focus of the Lecture relates to overlapping remedies available under private international and public international law; it maps out the growing landscape of modern dispute resolution, where a multitude of courts and arbitral tribunals operating at different levels (domestic, international and transnational) is accessible to litigants in cross-border settings. Today, a comprehensive study of these developments is still missing. This Lecture does not aim to provide the whole picture, but focusses instead on some basic structures, revealing three main areas where the distinction between private and public disputes remains applicable today:

First, the divide delimitates the jurisdiction of domestic courts in cases against foreign states and international organisations (immunities); it equally limits the possibilities of foreign and international public entities to enforce public law claims in cross-border settings. As a matter of principle, public law claims cannot be brought before civil domestic courts of other states. However, this rule has been challenged by recent developments, especially by the private enforcement of (public) claims and by the cross-border cooperation of public authorities. Moreover, the protection of human rights and the implementation of the rule of law in cross-border constellations entail a growing need for a judicial control of acta iure imperii – even if only by the courts of the defendant state.

The second area of application of the divide relates to the delineation between domestic and international remedies. In this field, the distinction has lost much of its previous significance because nowadays individual commercial actors may bring their claims directly (often assisted by experienced actors like litigation funders) before international arbitral tribunals, claims commissions and human rights courts. In this area of law, individuals’ access to international dispute resolution mechanisms has been considerably reinforced. Here, Prof. Hess argues that it would be misleading to qualify parts of the current dispute resolution system as purely “commercial” and other parts as purely “public or administrative”. There are revolving doors between the systems and the same procedures are often applied; what really matters is the proper delineation of  different remedies which functionally protect the same interests and rights.

The third area relates to the privatization of dispute settlement, especially in the context of private ordering. At present, powerful stakeholders often regulate their activities vis à vis third parties (including public actors) by globalized standard terms. Pertinent examples in this respect are financial law (i.e. ISDA), the organization of the internet (i.e. ICANN) and sports law (i.e. CAS). In this context, there is a considerable danger that the privatization of law-making and of the corresponding dispute settlement schemes does not sufficiently respect general interests and the rights of third parties. A residual judicial control by independent (state) courts is therefore needed. Data protection in cyberspace is an interesting example where the European Union and other state actors are regaining control in order to protect the interests of affected individuals.

Finally, the Lecture argues that the private-public divide still exists today and – contrary to some scholarly opinions – cannot be given up. At the same time, one must be aware that private and public international law have complementary functions in order to address adequately the multitude of disputes at both the cross-border and the international level. In this context the private-public divide should be understood as an appropriate tool to explain the complementarity of private and public international law in the modern multilevel legal structure of a globalized world.

A pocket book of the Hague Lecture will be available in the coming months.

The International Conference “Pluralism or Universalism in International Copyright Law” is to be held in May 31-June 1, 2018 at the University of Cyprus. The conference is organized by Associate Professor Tatiana Eleni Synodinou.

You can check the programme and the speakers here and here. More information available here.

 

This call for papers can also be found on the TDM website here
https://www.transnational-dispute-management.com/news.asp?key=1707

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) Special Issue on “Cybersecurity in International Arbitration.”

International arbitration has the advantage over litigation of allowing parties to resolve their disputes privately and confidentially if desired.  In our increasingly digitized world, attention to cybersecurity in individual arbitration matters is required in order to maintain that advantage and the confidence of parties in the integrity of the arbitral process.

International arbitration typically involves multiple participants in multiple locations, the storage and transmission of significant amounts of confidential, sensitive and commercially valuable digital data and numerous electronic communications.   Even where the proceeding is public or non-confidential in part, certain aspects, such as arbitrator deliberations and party internal communications and work product, almost always must remain confidential to protect the integrity of the process.

In a world where businesses, law firms, government entities, educational institutions and other large data custodians are under threat or already have been breached, international arbitration obviously is not immune.  There are already a few documented instances where the process has been compromised and anecdotal evidence of attempted intrusion into proceedings and data held by various participants.

There is a manifest need for the international arbitration community to begin to develop a shared understanding of the scope of the threat and the appropriate response.  There is an emerging consensus that cybersecurity is an important consideration that should be addressed early in the international arbitration process and that reasonable cybersecurity measures should be adopted.  Nonetheless, questions abound, including, to cite just a few examples, the specific responsibilities of the various participants in the process, the scope of measures that should be adopted, the scope of party autonomy to determine such measures, the availability of resources and concerns that cybersecurity requirements may increase the expense of arbitration and create a resource gap that could disadvantage less-resourced participants.

It is hoped that papers submitted for the Special Issue will advance the conversation by addressing some of the questions described here and potentially identifying issues the international arbitration community will need to consider.

Suggestions for possible paper topics include:

• Commentary on the Draft ICCA-CPR-New York City Bar Association Protocol for Cybersecurity in Arbitration (available here)
• Cybersecurity best practices for different participants in the arbitral process, including institutions, counsel, arbitrators, parties, and experts, and suggestions as to model language to be used in procedural orders, stipulations, expert engagement letters, etc. For example, what factors should parties considering using a third-party platform to share and store arbitration-related information take into account? An article on the arbitrator’s responsibility to protect the integrity of the process is linked here and here.
• What can and should be done on a systemic basis to address cybersecurity in international arbitration? Should cybersecurity be the subject of soft law, for instance? If so, in what form and who should lead?
• How should tribunals resolve party conflicts about reasonable security measures, breach notification obligations, and related costs?
• How should cybersecurity breaches or failures to implement required cybersecurity measures in the arbitral process be addressed? For example, should there be a default presumption regarding the admissibility of evidence attained from a data breach? Should arbitrators entertain applications for damages and/or sanctions?
• Are there limits to party autonomy to determine the cybersecurity measures to be applied in individual matters?  Are there institutional or tribunal interests that may in some circumstances override the parties’ agreement? If so, how are these interests defined and where does the power derive to apply them?
• What is the correct liability standard for cybersecurity breaches? Should there be a safe harbor?
• What is the correct standard to test the adequacy of cybersecurity measures? Is a reasonableness standard adequate to protect the process?
• Comparative analysis of ethical rules and obligations governing the conduct of lawyers around the globe in relation to cybersecurity and conclusions as to implications for international arbitration proceedings and the existence of either transnational norms or conflicts
• How do considerations of fairness and equality relate to the implementation of cybersecurity measures in international arbitrations? For instance, how should differences in infrastructure and party resources be taken into account in assessing the appropriate level of cybersecurity measures in individual matters?  Is there a minimum level of security required to protect the integrity of arbitration process that should be implemented in all arbitrations?
• How do data privacy regimes relate to cybersecurity and what are the implications for international arbitration proceedings?
• Arbitration of business-to-business data breaches

This special issue will be edited by independent arbitrators Stephanie Cohen and Mark Morril.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be hosting its XLI Seminar entitled “Towards the Unification of Private International Law Principles in Mexican Procedural Law” at the Universidad Autónoma de Querétaro (Mexico) from 14 to 16 November 2018.

The seminar will focus in particular on the New National Code of Civil and Family Procedure, which will contain PIL provisions. This is a significant development given that at present each Mexican state (32) has its own procedural law.

Potential speakers are invited to submit a paper in Spanish, English, or Portuguese by 17 September 2018. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available at the end of October.

For more detailed information (incl. convocation), see www.amedip.org.  Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

 

The 60th Seminar of Comparative and European Law in Urbino (Italy) has already been announced. It will take place from August 20, to September 1. The program includes presentations on many different topics, some of them of direct interest for private international lawyers and scholars.  The whole program is available here, together with information on  enrollment, accommodation, and how to get to Urbino.

 

The latest issue of the Zeitschrift für Europäische Privatrecht has just been released. It contains the following articles:

Dagmar Coester-Waltjen, Die Einführung der gleichgeschlechtlichen Ehe in ausgewählten Rechtsordnungen

The introduction of same-sex marriage in German law has given rise to many discussions in society and politics. However, since the beginning of this millennium many states have accepted marriage as a union of two persons of different or of the same sex. Frequently these reforms have caused discussion on constitutional issues, especially on the prominent features of marriage and on the avoidance of any discrimination.

Juan Pablo Murga Fernández, Payment of descedents´ debts in succession law: “effects” and “defects” of the German and Spanish legal systems

The transfer of the deceased’s debts is a common consequence that arises from the phenomenon of succession in both Civil and Common Law legal systems. In this respect, a number of conflicting interests are at stake: namely, the interest of the heir that needs to be balanced against the interest of the different groups of creditors. This paper analyses the legal solutions given to these matters under the Spanish and German legal systems, pointing out their common and particular effects and defects.

Dirk Heirbaut, The sleeping beauty awakens: Belgium’s new law of inheritance as a first step in the greatest recent recodification program in Western Europe

In the summer of 2017 the Belgian parliament voted a new law of inheritance, which is only a small part of larger program of recodification, announced on 6 December 2016 by minister of justice Koen Geens, and which includes, inter alia, a new civil code. This article explains why, after Napoleon, drafts of new codes failed in Belgium and why this may actually be one of the reasons, which make it possible that the recent recodification efforts may bear fruit very soon.

Martin Zwickel, Die Einführung der obligatorischen Schlichtung in Frankreich

In the context of the major judicial reform, France introduced mandatory conciliation as of 18 November 2016. In certain cases, it is now necessary to undertake a prior effort at finding agreement with a court-ordered conciliator. This article explains and evaluates this requirement

 

 

By Guillaume Croisant (Université Libre de Bruxelles)

In October 2017, as already reported in a previous post, the Belgian Government announced its intention to set up a specialised English-speaking court with jurisdiction over international commercial disputes, the Brussels International Business Court (“BIBC”). An update versionof the text has finally been submitted to Parliament on 15 May 2018, after that the Government’s initial draft faced criticisms from the High Council of Justice (relating to the BIBC’s independence and impartiality, its source of funding and its impact on the ordinary courts) and was subject to the review of the Conseil d’Etat.

In the wake of Brexit, the Belgian Government aims at establishing a specialised business court able to position Brussels as a new hub for international commercial disputes, in line with its international status as de factocapital of the EU and seat of many international institutions and companies. Similar projects are ongoing in several jurisdictions throughout the EU, including France, the Netherlands and Germany (see previous post).

The BIBC will have jurisdiction over disputes:

• which are international in nature, i.e. where (i) the parties have their establishment in different jurisdictions, (ii) a substantial part of the commercial relationship must be performed in a third country, or (iii) the applicable law to the dispute is a foreign law. In addition, another language than French, Dutch or German (Belgium’s official languages, which are already used before ordinary courts) must have been used frequently by the parties during their commercial relationship;
• among “enterprises” (i.e. every entity pursuing an economic purpose, including public enterprises which provide goods and services on a market basis); and
• provided that the parties have agreed to the BIBC’s jurisdiction before or after the crystallisation of their dispute.

Subject to potential amendments in Parliament, the main procedural hallmarks of the BIBC can be summarised as follows:

• the procedure will be conducted in English (notices and submissions, evidence, hearings, judgments, etc.);
• while the BIBC remains a State court, the procedure will be based on the UNCITRAL Model Law on international arbitration, which means that the parties will be offered greater flexibility and room to organise the conduct of the proceedings;
• the cases will be heard by ad hocchambers of three judges, one professional and two lay judges (appointed by the president of the BIBC on the basis of a panel of Belgian and international experts in international business law), with the assistance of the Registrar of the Brussels Court of Appeal;
• the BIBC will be granted the power to issue provisional and protective measures (including upon ex parterequests);
• no appeal will be open against the BIBC’s decision (with the exception of an opposition/tierce opposition before the BIBC for absent parties/interested third parties, and a pourvoi en cassation on points of law before the Supreme Court);
• the BIBC should be self-financing and the court fees are therefore going to be significantly increased (to around € 20,000/case).

The Belgian Government aims to have the BIBC up and running by 1 January 2020.