Conflictoflaws

The latest issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabel Journal of Comparative and International Private Law” (RabelsZ) has recently been released. It contains the following articles:

Dagmar Coester-Waltjen, Himmel und Hölle: Einige Überlegungen zur internationalen Zuständigkeit (Heaven and Hell: Some Reflections on International Jurisdiction)

Jurisdictional rules differ all over the world. Plaintiffs might consider jurisdictional practices in one legal system as “heaven”, whereas defendants will fear exactly these rules like “hell”. Due to increasing global interconnectedness that results from increasing cross-border trade, from the mobility of people, and the global reach of the internet, there is a need for international consensus on matters of jurisdiction on several levels. The first level concerns the question whether a complete set of acceptable grounds of jurisdiction (direct grounds of jurisdictions) can be developed for a binding instrument. On the second level the question arises as to tolerable heads of jurisdiction (only) for the purpose of recognition and enforcement of foreign judgments (indirect grounds of jurisdiction). And finally the jurisdiction of the courts that recognize and enforce the foreign judgment is at issue. The Hague Conference on Private International Law has resumed its work on the so-called judgment project and it is working on all three levels although direct grounds of jurisdiction will be tackled only after a certain agreement will have been reached on jurisdictional issues concerning recognition and enforcement of judgments. However, on all three levels the inclusion and the role of the doctrine of forum non conveniens will be an important and most decisive issue.

The doctrine of forum non conveniens has its origin in the common law world, but has spread around the globe in recent decades. Today it can be found also in jurisdictions which traditionally apply strict jurisdictional rules. The very essence of the doctrine is a margin of discretion the competent court may apply in staying or rejecting litigation. This applies if in the given situation the court addressed seems to be a “not convenient” forum and there is another more appropriate forum. The particulars of the doctrine as well as the standards of the test (inconvenient, clearly inconvenient, more appropriate) and the determinative considerations vary.

By contrast, it has been said that the European rules on jurisdiction are and have to be strict rules in order to guarantee certainty and predictability. However, a close look at these jurisdictional systems in European regulations reveal some weakness of the strict rules on the one hand and also the fact that even in these systems a non-convenience substitute has been developed. There are rules which allow courts to deny jurisdiction by way of interpreting a jurisdictional rule restrictively in the light of specific circumstances of the case at hand. There are other rules which give judges a limited power to decline (or in case of a forum necessitatis even to attract) jurisdiction outside the normal rules. In this situation forum non conveniens-type considerations are at issue. In so far the acceptability of the doctrine of forum non conveniens in a global instrument concerning jurisdiction even for continental-European legal systems and the EU as such does not seem unthinkable any more.

This applies especially as far as direct jurisdiction is concerned. Globalization of the markets and of societies as well as the delocalisation of the connecting factors ask for wide jurisdictional rules which may have to be restricted with regard to the specific and limited circumstances of the precise facts of a case.

Concerns about “access to justice”, “the right to a lawful judge”, non-discriminatory decisions, predictability and certainty of the jurisdictional system can be rebutted if the terms and conditions of a rule on forum non conveniens are framed accordingly: A presumption that honours the plaintiff ’s choice of court may only be rebutted, if the defendant proves that the interests of both parties and the end of justice justify a stay or denial of the proceedings. He will have to prove in addition that there is an alternative appropriate forum which guarantees a lawful procedure and a possibility for the plaintiff to enforce his right when granted by this alternative court. Much will depend on the phrasing of the rule, but there are models for orientation.

When it comes to indirect jurisdiction the doctrine of forum non conveniens for constitutional reasons plays an important role in the United States. It seems unlikely that an agreement on the international level will be reached without coping with this issue. However, forum non conveniens may have a very limited role on this level only. Due to the fact that in so far practical difficulties for the original forum in adjudicating the case are not at issue any more, the essential issue will be whether the interests of the defendant have been treated in accordance with the rule of law. This could be argued under the head of “ordre public”, but it seems preferable to define the limits of such exception expressly.

Finally, the jurisdictional rules of the courts recognizing and enforcing foreign judgments are of pivotal importance. Without the possibility of enforcement a right may be theoretical and illusionary only. Therefore, in order to guarantee practical and effective rights, a legal system must not refrain from enforcing a judgment according to the doctrine of forum non conveniens if and so far as this judgment has to be recognized in this system. Thus, on the third stage of jurisdictional issue the doctrine of forum non conveniens should not play any role at all.

Rolf Wagner, EU-Kompetenz in der justiziellen Zusammenarbeit in Zivilsachen – Resumée und Ausblick nach mehr als fünfzehn Jahren (EU Legislative Powers Regarding Judicial Cooperation in Civil Matters)

Since the entry into force of the Amsterdam Treaty in 1999, the European Union has been empowered to cooperate in the area of civil matters. As this power has now existed for more than fifteen years, it seems appropriate to take stock of developments. In addition to asking whether initial legal uncertainties regarding the interpretation of the power of judicial cooperation in civil matters have been resolved over the course of time, the present article also considers what new problems may have emerged.

Chloé Lignier and Anton Geier, Die Verstärkte Zusammenarbeit in der Europäischen Union – Politischer Hintergrund, Bestandsaufnahme und Zukunftsperspektiven (Enhanced Cooperation in the European Union – Political Background, Current Status and Future Perspectives)

The legislative instrument of enhanced cooperation allows member states to create a common legal regime in a given field, which applies only to those member states that voluntarily subject themselves to it. While the concept of having different levels of integration (“differentiated integration”) as such is not new to EU law, the instrument of enhanced cooperation stands out through its broad scope of application and its elaborate institutional entrenchment.

The history of differentiated integration in the EU illustrates the basic conflict between effective integration on the one hand and preserving the sovereignty of the member states on the other hand. In this context, the two principal competing political ideals aspiring to resolve this conflict are often labelled as “Europe à la carte” on the one hand and “multi-speed Europe” on the other hand. Both ideals – to a varying degree – manifest themselves in the rules on enhanced cooperation introduced with the treaties of Amsterdam and Nice.

After having been neglected by the European legislator for a long time, we can now witness the first practical implementations of enhanced cooperation in the fields of divorce law, patents and the financial transaction tax. The ideas of differentiated integration and the instrument of enhanced cooperation remain highly controversial. Some see it as the only means for overcoming the integrational standstill in an ever more complex and heterogenic Union. Others fear that enhanced cooperation will sow division among the member states and foster political and legal alienation between them.

Ultimately, an analysis of the rules on enhanced cooperation in the treaties and the latest examples of its implementation gives rise to optimism. It reveals a promising potential of the instrument of enhanced cooperation for achieving effective integration in the EU, while duly observing the legitimate interests of all member states, be they participating or not. At the same time, the European legislator should wield its new sword with caution if it wishes to preserve the solidarity among the member states and the coherence of EU law. It cannot be denied that specific projects of enhanced cooperation can come into conflict with other EU interests such as the coherence and effectiveness of the internal market. As regards the political coherence of the EU, the provisions on sincere cooperation do allow for political inclusion and wisely oblige the participating member states to confer with the non-participants at every stage. The extent to which the member states act in this spirit of constructiveness and cooperation will decide over the fate of enhanced cooperation as either a king’s road or a dead end of European legal integration.

Marieke Oderkerk, The Need for a Methodological Framework for Comparative Legal Research – Sense and Nonsense of “Methodological Pluralism” in Comparative Law

The paper has presented a framework for comparative legal research indicating the various methodological issues that have to be considered in the various stages of a research project. Its significance is twofold. In the first place it brings order into the existing methodological knowledge in the field such that the various methods and techniques can be understood and assessed within the correct context, automatically unveiling existing lacunae. Secondly, and probably most importantly, the framework shows that there is indeed one framework which contains – at the moment at least, for certain parts of it – clear guidelines and principles that can guide comparatists conducting any type of comparative legal research in any field of the law.

Dieter Martiny, Die Haager Principles on Choice of Law in International Commercial Contracts – Eine weitere Verankerung der Parteiautonomie (The Hague Principles on Choice of Law in International Commercial Contracts: Buttressing Party Autonomy)

The Hague Conference on Private International Law has recently drawn up “Principles on Choice of Law in International Commercial Contracts”. An innovative  feature of these Principles, which are accompanied by an explanatory Commentary, is that unlike an international convention they are non-binding. The Principles were drafted by a Working Group, which commenced in 2010, and by a Special Commission of November 2012. The instrument was approved by the Council on  General Affairs and Policy in March 2015.

The Principles’ relatively few black-letter rules (12 articles and a preamble) seek to encourage choice of law in international commercial transactions. They contain clarifications and innovations on choice of law, particularly for jurisdictions where party autonomy is not accepted or is accepted only in a restrictive manner. The Principles try to achieve universal application and also to influence existing regional instruments such as the Rome I Regulation of the European Union and the OAS Mexico Convention.

Developing the Principles was a demanding task since they apply not only to courts but also to arbitral tribunals. Since party autonomy is the centrepiece of the Hague Principles, freedom of choice is granted basically without restriction. The Principles clarify important issues for agreements on choice of law. A reference to “law” also includes generally accepted “rules of law”. The latter refers to principles developed by international organisations or international conventions. This approach is also applicable to courts. Under he Hague Principles the parties’ choice of law is severable from the main contract. Express and tacit choices are accepted. There is no requirement as to the formal validity of a choice of law. An innovative solution also tries to find an agreement on choice of law in the case of a battle of the forms. Not only are international mandatory rules of the forum respected but under certain circumstances mandatory provisions from other sources are also taken into account. The extent to which overriding mandatory rules and public policy are applied or taken into account, however, is ultimately a matter not for the non-binding Principles themselves but for other rules.

The Hague Principles declare themselves to be an international code of current best practice with respect to the recognition of party autonomy in choice of law in international commercial contracts. Their acceptance in international practice will show how far the expectations of The Hague will be met.

Call for Papers on Private International Law, Economics, and Development

The Federalist Society’s Faculty Division is pleased to announce a Call for Papers on Private International Law, Economics, and Development.  Up to four submissions will be selected for inclusion in an upcoming Faculty Division colloquium on this topic.  Authors of the selected pieces will each receive a prize of approximately $2,500 (any co-authors must share a single prize).  The topic is intentionally broad in scope, though we have a particular interest in papers that offer fresh perspectives or insights on the relationship between private international law, economics, and development.

The Private International Law, Economics, and Development colloquium is intended to engage private international law from a legal, economics, and public policy perspective—particularly the seeming lack of international agreement on how trade should be encouraged and regulated. Some contend legal regimes that promote free trade will benefit all of society, while others argue that such an approach benefits the relatively wealthy at the expense of the relatively poor. Fitted within this larger debate of politics and economics is the important question of what role, if any, private international law should play in promoting and regulating transnational activity.  Winning submissions will be incorporated into a special colloquium session, during which we hope to engage some of the latest thinking on these issues.

The winning authors will be expected to attend the colloquium (Oct. 9-10, 2015), which we plan to hold in the Los Angeles area, but not to present their papers in the formal sense; rather, all participants will have read the papers beforehand and will come prepared to engage in a freewheeling discussion on the issues the papers raise.  Submissions will be accepted from current law faculty or those pursuing full-time employment in the legal academy.

There is a limit of one submission per person.

Submissions must be substantially complete and formatted in accord with the Bluebook.  Submissions should be of a quality publishable in a mainstream law journal, but must not have been published as of the date of the submission deadline below.  This must be the case even if the paper has been accepted for publication in a journal or law review.

Submissions must be sent via Microsoft Word or pdf attachment to anthony.deardurff@fed-soc.org no later than 5:00pm Eastern Time on Friday July 31, 2015.

Guest Post by Professor Marketa Trimble (UNLV) (also posted at this blog). 

Imagine that someone had a patent on the internet and only those who had a license from the patent holder could, for example, do business on the internet. This internet patent would not need to concern the internet protocol, the domain name system, or any other technical features of the network; the patent could, in fact, cover something else – a technology that everyone, or almost everyone, who wants to do business on the internet needs, a technology that is not, however, a technical standard. There might be one such patent application – the patent application discussed below – that could be approaching this scenario.

We must accept, however reluctantly, that activities on the internet will not be governed by a single internet-specific legal regime or by the legal regime of a single country. Although countries might agree on an internet-specific regime for the technical features of the internet, and might even adopt some uniform laws, countries want to maintain some of their country-specific national laws. People and nations around the world are different, and they will always have diverse views on a variety of matters – for example, online gambling. Online gambling might be completely acceptable in some countries, completely unacceptable in others, or somewhere in between; likewise, countries have different understandings of privacy and requirements for the protection of personal data. Therefore, countries now have and likely always will have different national laws on online gambling and different national laws on privacy and personal data protection. Compliance with multiple countries’ laws regarding the internet is nonnegotiable, certainly for those private parties who wish to conduct their activities on the internet transnationally and legally. Nevertheless, in practice and for some matters, the number of countries whose laws are likely to be raised against an actor on the internet may be limited, as I discussed recently.

For some time the major excuse for noncompliance with the laws of multiple countries on the internet was the ubiquitousness of the network. The network’s technical characteristics seemed to make it impossible for actors to both limit their activity on the internet territorially, and also to identify with a sufficient degree of reliability the location of parties and events on the internet, such as customers and their place of consumption. However, as geolocation and geoblocking tools developed, location identification and territorial limitation of access became feasible. Of course the increase in the use of geolocation tools generated more interest in the evasion of geolocation, and increased evasion has prompted even further improvements of the tools. The argument that we cannot limit or target our activity territorially because we don’t know where our content is accessed or consumed no longer seems valid. (Also – at least in some countries – courts and agencies have permitted internet actors to employ low-tech solutions as sufficient territorial barriers, for example, disclaimers and specific language versions.)

The multiplicity of applicable laws that originate in different countries and apply to activities on the internet is more troubling in some areas of law than in others. One area of law that permeates most internet activity is data privacy and personal data protection. Any internet actor who has customers and users (and therefore probably has user and traffic analytics) will likely encounter national data protection laws, which vary country-by-country (even in the EU countries, which have harmonized their personal data protection laws, national implementing regulations may impose country-specific obligations). Therefore, compliance with the varying national data protection laws will become one of the essential components of conducting business and other activities transnationally. If someone could patent a method for complying simultaneously with multiple countries’ data privacy laws on the internet and claim the method broadly enough to cover all possible methods of achieving compliance with the national privacy laws, that patent owner might just as well own a patent on the internet, or at least on a very large percentage of internet activity.

A U.S. patent application that seeks a patent on simultaneous compliance with multiple countries’ data privacy laws on the internet through broad method claims is application No. 14/266,525, which concerns “Systems and Methods of Automated Compliance with Data Privacy Laws,” meaning “laws of varying jurisdictions” (the title and the “Abstract”). The invention is designed to facilitate an automatic method of complying with the data privacy laws of various jurisdictions, which are, as the “Introduction” notes, “complicated, diverse, and jurisdiction specific.” The method envisions that once “person-related data” are requested from a data provider, a “filter is the [sic] automatically applied to the person-related data to restrict transfer of person-related data [that] does [sic] not meet the data privacy regulations applicable to the jurisdiction” (the “Introduction”); the filter also checks for any consents by the data subject if the particular regulations require them. The method also foresees, for example, the possibility of “identif[ying] different origins of the person-related data sources” in terms of their geographical location (“Trust Object and Trust Data”).

The patent application still must be prosecuted, and the – undeniably useful – invention will be subject to scrutiny as to its compliance with the requirements of statutory subject matter, novelty, and non-obviousness. A patent on the application may not issue at all, or the language of the application may be amended and the claims narrowed. Whatever the future might bring for the claimed invention, this patent application serves as a useful prompt for thinking about the components that have been or are becoming essential to conducting business and other activities on the internet.

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

Holger Jacobs, The necessity of choosing the law applicable to non-contractual claims in international commercial contracts
International commercial contracts usually include choice-of-law clauses. These clauses are often drafted narrowly, such that they do not cover non-contractual obligations. This article illustrates that, as a result, contractual and non-contractual claims closely linked to the contract risk being governed by different laws. This fragmentation might lead to lengthy and expensive disputes and considerable legal uncertainty. It is therefore advisable to expressly include non-contractual claims within the scope of choice-of-law clauses in international commercial contracts.

Leonard Hübner, Section 64 sentence 1 German Law on Limited Liability Companies in Conflict of Laws and European Union Law
The article treats the application of the liability pursuant to § 64 sentence 1 GmbHG to European foreign companies having its centre of main interest in Germany. At the outset, it demonstrates that the rule belongs to the lex concursus in terms of Art. 4 EuInsVO. For the purposes of this examination, the article considers the case law of the ECJ as well as the legal consequences of the qualification. At the second stage, it illustrates that the application of the rule to foreign companies does not infringe the freedom of establishment according to Art. 49, 54 TFEU.

Felix Koechel, Submission by appearance under the Brussels I Regulation and representation in absentia
In response to two questions referred by the Austrian Supreme Court, the ECJ ruled that a court-appointed representative for the absent defendant (Abwesenheitskurator) cannot enter an appearance on behalf of the defendant for the purposes of Article 24 of the Brussels I Regulation. This solution seems convincing because the entering of an appearance by the representative would circumvent the court’s obligation to examine its jurisdiction on its own motion under Article 26 para 1 of the Brussels I Regulation. Considering also the ECJ’s decisions in cases C-78/95 (Hendrikman) and C-327/10 (Hypote?ní banka) it seems that the entering of an appearance within the meaning of the Brussels I Regulation is generally excluded in case of a representation in absentia. It is, however, doubtful whether the very specific solution adopted by the ECJ in the present case should be applied in other cases of representation in proceedings.

Peter Mankowski, Tacit choice of law, more preferential law principle, and protection against unfair dismissal in the conflict of laws of employment agreements
Labour contracts with a cross border element are a particular challenge. They call for a particularly sound administration of justice. Especially, the discharge of employees gives rise to manifold questions. The final decision of the Bundesarbeitsgericht in the case Mahamdia provides a fine example. It tempts to spend further and deepening thoughts on tacit choice of law (with a special focus on jurisdiction agreements rendered invalid by virtue of Art. 23 Brussels Ibis Regulation, Art. 21 Brussels I Regulation/revised Lugano Convention), the most favourable law principle under Art. 8 (2) Rome I Regulation, and whether the general rules on discharge of employee might possibly fall under Art. 9 Rome I Regulation.

Christoph A. Kern, Judicial protection against torpedo actions
In the recent case Weber v. Weber, the ECJ had ruled that, contrary to the principle of priority provided for in the Brussels I Regulation, the court second seized must not stay the proceedings if it has exclusive jurisdiction. The German Federal Supreme Court (BGH) applies this ratio decidendi in a similar case. In its reasons, the BGH criticizes – and rightly so – the court of appeal which, in the face of a manifestly abusive action in Italy, had denied an identity of the claims and the parties by applying an “evaluative approach”. Nevertheless, the repeated opposition of lower courts to apply the principle of priority is remarkable. The Brussels I recast, which corrects the ECJ’s jurisprudence in the case Gasser v. Misat, would, however, allow for an approach based on forum selection: Whenever the parties have had no chance to protect themselves against torpedo actions by agreeing on the exclusive jurisdiction of a court or the courts of a Member State, the court second seized should be allowed to deviate from a strict application of the principle of priority.

Jörn Griebel, The Need for Legal Relief Regarding Decisions of Jurisdiction Subject to Setting Aside Proceedings according to § 1040 of the German Code of Civil Procedure
§ 1040 section 3 of the German Code of Civil Procedure prescribes that a so called “Zwischenentscheid”, an arbitration tribunal’s interim decision on its jurisdiction, can be challenged in national court proceedings. The decision of the German Federal Court of Justice (BGH) concerned the procedural question whether a need for legal relief exists in such setting aside proceedings concerning an investment award on jurisdiction, especially in situations where an award on the merits has in the meantime been rendered by the arbitration tribunal.

Bettina Heiderhoff, No retroactive effect of Article 16 sec. 3 Hague Convention on child protection
Under Article 21 German EGBGB it was possible that a father who had parental responsibility for his child under the law of its former habitual residence lost this right when the child moved to Germany. This was caused by the fact that Article 21 EGBGB connected the law governing parental custody to the place of habitual residence of the child.
Article 16 sec. 1 Hague Convention on child protection (1996) also connects the parental custody to the habitual residence. However, in Article 16 sec. 3 it has a different rule for the above described cases, stating that parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.
The author is critical towards the common understanding of Article 21 EGBGB. The courts should always have interpreted this rule in the manner that is now explicitly fixed in Article 16 sec. 3 Hague Convention. As the rule has been virtually out of force for many years due to the overriding applicability of the Hague Convention, a retroactive change in its interpretation would cause great insecurity.
The essay also deals with various transitional problems. It supports the view of the OLG Karlsruhe, that the Hague Convention cannot be applied retroactively when a child moved to Germany before January 2011.

Herbert Roth, Rechtskrafterstreckung auf Vorfragen im internationalen Zuständigkeitsrecht
The European procedure law (Brussels I Regulation) does not make any statement concerning the scope of substantive res judicata of national judgments. However, the European Court of Justice extends the effects of res judicata to prejudicial questions of the validity of a choice-of-forum clause, in this respect it approves a European conception of substantive res judicata (ECJ, 15.11.2012 – Case C 456/11 – Gothaer Allgemeine Versicherung AG ./. Samskip GmbH, IPRax 2014, p. 163 Nr. 10, with annotation H. Roth, p. 136). The verdict of the higher regional court of Bremen as appellate court had to consider the precedent of the ECJ. It is the final decision after the case was referred back from the ECJ. The international jurisdiction of German courts was rejected in favour of the Icelandic courts, in spite of the defendant’s domicile in Bremen.

Martin Gebauer, Partial subrogation of the insurer to the insured’s rights and the incidental question of a non-contractual claim
The decision, rendered by the local court of Cologne, illustrates some of the problems that arise when the injured party of a car accident brings an action as a creditor of a non-contractual claim against the debtor’s insurer, despite the injured party having already been partially satisfied by his insurer as a consequence of a comprehensive insurance policy. The partial subrogation leads to separate claims of the injured party, on the one hand, and its insurer on the other. According to Article 19 of the Rome II Regulation, the subrogation, and its scope, is governed by the same law that governs the insurance contract between the injured party and its insurer. The non-contractual claim, however, which is the object of the subrogation, is governed by a different law and presents an incidental question within the subrogation. The injured party, as claimant, can sue the debtor’s insurer in the courts of the place where the injured party is domiciled. The injured party’s insurer, however, may not sue the debtor’s insurer in the courts of the place where the injured party is domiciled, but is rather forced to bring the action at the defendant’s domicile. This may lead to parallel proceedings in different states and runs the risk of uncoordinated decisions being made by the different courts regarding the extent of the subrogation.

Apostolos Anthimos, On the remaining value of the 1961 German-Greek Convention on recognition and enforcement
Since the late 1950s, Greece has established strong commercial ties with Germany. At the same time, many Greek citizens from the North of the country immigrated to Germany in pursuit of a better future. The need to regulate the recognition and enforcement of judgments led to the 1961 bilateral convention, which predominated for nearly 30 years in the field. Following the 1968 Brussels Convention, and the ensuing pertinent EC Regulations, its importance has been reduced gradually. That being the case though, the bilateral convention is still applied in regards to cases not covered by EC law and/or multilateral conventions. What is more interesting, is that the convention still applies for the majority of German judgments seeking recognition in Greece, namely cases concerning divorce decrees rendered before 2001, as well as adoption, affiliation, guardianship, and other family and personal status matters. The purpose of this paper is to highlight the significance of the bilateral convention from the Greek point of view, and to report briefly on its field of application and its interpretation by Greek courts.

David B. Adler, Step towards the accommodation of the German-American judicial dispute? – The planned restriction of Germany’s blocking statute regarding US discovery requests.
Until today, US and German jurisprudence argue whether US courts are allowed to base discovery orders on the Federal Rules of Civil Procedure instead of the Hague Evidence Convention, despite the fact that evidence (e.g. documents) is located outside the US but in one of the signatory states. While the one side argues that the Hague Convention trumps the Federal Rules and has to be primarily, if not exclusively, utilized in those circumstances, the other side, especially many US courts, constantly resisted interpreting the Hague Evidence Convention as providing an exclusive mechanism for obtaining evidence. Instead, they have viewed the Convention as offering discretionary procedures that a US court may disregard in favor of the information gathering mechanisms laid out in the federal discovery rules. The Hague Evidence Convention has therefore, at least for requests from US courts, become less important over time.
The German Federal Ministry of Justice and Consumer Protection intends to put this debate to an end and to reconcile the differing legal philosophies of Civil Law and Common Law with regard to the collecting of evidence. It plans to alter the wording of the German blocking statute which, up to this date, does not allow US litigants to obtain pretrial discovery in the form of documents which are located in Germany at all. Instead of the overall prohibition of such requests, the altered statute is intended to allow the gathering of information located in Germany if the strict requirements of the statute, especially the substantiation requirements towards the description of the documents, are fulfilled. By changing the statute, Germany plans to revive the mechanisms of the Hague Evidence Convention with the goal of convincing the US courts to place future exterritorial evidence requests on those mechanisms rather than on the Federal Rules.
The article critically analyses the planned statutory changes, especially with regard to the strict specification and substantiation requirements concerning the documents requested. The author finally discusses whether the planned statutory changes will in all likelihood encourage US courts to make increased usage of the information gathering mechanisms under the Hague Evidence Convention with regards to documents located in Germany, notwithstanding the effective information gathering tools under the Federal Rules of Civil Procedure.

Steffen Leithold/Stuyvesant Wainwright, Joint Tenancy in the U.S.
Joint tenancy is a special form of ownership with widespread usage in the USA, which involves the ownership by two or more persons of the same property. These individuals, known as joint tenants, share an equal, undivided ownership interest in the property. A chief characteristic of joint tenancy is the creation of a “Right of Survivorship”. This right provides that upon the death of a joint tenant, his or her ownership interest in the property transfers automatically to the surviving joint tenant(s) by operation of law, regardless of any testamentary intent to the contrary; and joint tenants are prohibited from excluding this right by will. Joint tenancies can be created either through inter vivos transactions or testamentary bequests, and for the most part any asset can be owned in joint tenancy. A frequent reason for owning property in joint tenancy is to facilitate the transfer of a decedent’s ownership interest in an asset by minimizing the expense and time-constraints involved with the administration of a probate proceeding. Additional advantages of owning property in joint tenancy include potential protections against a creditor’s claims or against assertions by a spouse or minor children of homestead rights. Lastly, owning property in joint tenancy can result in inheritance, gift, property and income tax consequences.

Tobias Lutzi, France’s New Conflict-of-Laws Rule Regarding Same-Sex Marriage and the French ordre public international
On 28 January, the French Cour de cassation confirmed a highly debated decision of the Cour d’appel de Chambéry, according to which the equal access to marriage for homosexual couples is part of France’s ordre public international, allowing the court to disregard the Moroccan prohibition of same-sex marriage in spite of the Franco-Moroccan Agreement of 10 August 1981 and to apply Art. 202-1(2) of the French Code civil to the wedding of a homosexual Franco-Moroccan couple. The court expressly upheld the decision but indicated some possible limitations of its judgment in a concurrent press release.

In continuation of my previous work on the international attractiveness of contract laws in ICC arbitration, I have posted the draft of a new empirical study focusing on Asia (The Laws of Asian International Business Transactions). It is based on unpublished data provided by the main arbitral institutions active in that part of the world. The abstract reads:

The purpose of this Article is to assess the preferences of parties to Asian international business transactions when they choose the law governing their contracts. For that purpose, I conduct an empirical analysis of unpublished data of the four main arbitral institutions active in Asia (outside Mainland China) for years 2011 and 2012. I find that three laws dominate the Asian market for international contracts: English law, U.S. laws and, to a lesser extent, Singapore law.

The Article makes three contributions. First, it documents the regional variations in parties’ preferences: the laws which are successful in Asia are different from those which are in Europe. Secondly, it shows that, while English and U.S. laws might govern an equivalent number of transactions, they are chosen in very different circumstances. U.S. laws are typically chosen in transactions between a U.S. and an Asian party where the parties also agree to settle their dispute in the United States under the aegis of the international division of the American Arbitration Association. These are thus transactions where the bargaining power of the U.S. party was strong, and enabled that party to impose choice of a U.S. dispute resolution institution and of a U.S. law. By contrast, English law is chosen in transactions between parties of all nationalities, in the context of arbitration under the aegis of almost all institutions, in proceedings with their seat anywhere in Asia. English law appears to be the only law to be considered as attractive to international commercial parties operating in Asia and seeking an option other than the laws of one of the parties.

Finally, the Article seeks to explain the remarkable attractiveness of English law in Asia. It explores whether certain substantive rules of English law might be especially appealing to international commercial parties, and whether the fact that many Asian jurisdictions are former English colonies might play a role. It concludes that the most convincing reasons are the wide presence of Commonwealth educated lawyers in Asia, and the fear of the American way of law.

The article is forthcoming in the Washington International Law Journal (formerly Pacific Rim Law and Policy Journal). All comments welcome!

I have been asked by Giacomo Pailli, Università degli Studi, Florence, to spread the word about this study on the service of documents. Good luck with it!

The EU Commission has recently launched a European-wide study on the service of documents in EU Member States, which is being carried out by a consortium composed by the University of Florence, the University of Uppsala and DMI, a French consulting firm.

The Commission is particularly interested in understanding the existing disparities between the national regimes on service of documents that might constitute an obstacle to the proper functioning of Regulation 1393/2007 on the service of documents. The focus of the study is on domestic service of documents.

Anyone who works in the field of civil procedure, private international law and international litigation in general–either as private practitioners, in-house counsel, legal academics or neutrals– and has knowledge of how service of documents works in a EU Member State is invited to participate to the study by answering to an online questionnaire. On the website of the project you may also find the questionnaire translated in almost all languages of EU Member States.

The questionnaire is complex and articulated, but participants are free to answer only some of the sections, especially those that relate more closely to their direct experience or knowledge. The answers are all collected anonymously, unless the participant wish to be included in the public list of contributors to the study and answers question no. 1.5.

The survey will remain open until July 7th, 2015.

We warmly thank anyone who will take the time to ensure the success of this study.

The 10th Anniversary of the Journal of Private International Law Conference is being held at the Faculty of Law, Cambridge University on 3-5 September 2015.  Booking for accommodation closes soon – on 15th July.  Booking for the conference and dinner will close on 13th August.

The conference offers an excellent opportunity to hear and discuss many issues currently facing private international law.

More information and registration is here.  A draft programme is available on the same web site.

At the beginning of 2015, the publication of the 4th edition of Thomas Rauscher’s commentary on European private international law (including international civil procedure), “Europäisches Zivilprozess- und Kollisionsrecht (EuZPR/EuIPR)”, has started. So far, the volumes II (covering the EU Regulation on the European Order for Uncontested Claims, the Regulation on the European Order for Payment, the Small Claims Regulation, the Regulation on the European Account Preservation Order, the Service of Process and the Taking of Evidence Regulations as well as the Insolvency Regulation and the Hague Convention on Jurisdiction Agreements) and IV (covering, inter alia, Brussels IIbis, the Maintenance Regulation and the new Regulation on mutual recognition of protective measures in civil matters) have been published. The various Regulations have been commented on by Marianne Andrae, Kathrin Binder, Urs Peter Gruber, Bettina Heiderhoff, Jan von Hein, Christoph A. Kern, Kathrin Kroll-Ludwigs, Gerald Mäsch, Steffen Pabst, Thomas Rauscher, Martin Schimrick, Istvan Varga, Matthias Weller and Denise Wiedemann. Further volumes will cover Rome I and II as well as the Brussels Ibis Regulation. This German-language commentary has established itself internationally as a leading, in-depth treatise on European private international law, dealing with the subject from a comprehensive, functional point of view and detached from domestic codifications. For more details, see here.

On 15 June 2015, the Council of the European Union adopted a decision authorising certain Member States to accept, in the interest of the European Union, the accession of Andorra to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and an analogous decision regarding the acceptance of the accession of Singapore to the same Convention (publication of both decisions in the Official Journal is pending).

The two decisions rest on Opinion 1/13 of 14 October 2014. In this Opinion, the ECJ — having regard to Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa) — stated that the declarations of acceptance under the Hague Child Abduction Convention fall within the exclusive external competence of the Union.

Before the ECJ rendered this Opinion, some Member States had already accepted the accession of Andorra and Singapore. Presumably, they did so on the assumption that the European Union was not vested with an exclusive competence in this respect and that, accordingly, each Member State was free to decide whether to become bound by the Convention vis-à-vis individual acceding third countries, as provided by Article 38(3) of the Convention itself (for an updated overview of the accessions to the Convention and the acceptances thereof, see this page in the website of the Hague Conference on Private International Law).

The two Council decisions of 15 June 2015 are addressed only to the Member States that have not already accepted the accession of Andorra and Singapore, respectively. In fact, the Council preferred not to question in light of Opinion 1/13 the legitimacy of ‘old’ declarations made by Member States, and noted, with pragmatism, that a decision regarding the acceptance of the two accessions was only needed with respect to the remaining Member States.

In two identical statements included in the minutes of the above Council decisions (see here and here), the European Commission regretted that the decisions “cover only the Member States which have not yet accepted Andorra and Singapore”, so that “the Member States which proceeded to accept third States’ accessions in the past are not covered by any authorisation by the Union, which is in principle necessary pursuant to Article 2(1) TFEU” (according to the latter provision, “when the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts”).

In its statements, the Commission also stressed “that any future acceptance by Member States of the accession of a third country must be covered by a prior authorisation”.

A conference organised by AIGA, the Italian Association of Young Lawyers, will take place on 2 July 2015 in Brussels, in the Paul-Henri Spaak building of the European Parliament, to discuss the legal aspects of the Digital Single Market (the creation of which is one of the ten priorities of the European Commission presided by Jean-Claude Juncker).

The conference, which is titled Building the legal infrastructure of the Digital Single Market, will consist of three sessions.

The first session, Setting the policy framework, will be chaired by Hans Schulte-Nölke of the University of Osnabrück. It will feature presentations by Gintare Surblyte of the Max Planck Institute for Innovation and Competition in Munich (Internet and Regulation: the debate on Net Neutrality) and Oreste Pollicino of the Bocconi University of Milan (The sense of the Court of Justice of the European Union for digital privacy: interpretation or manipulation?).

Michael Lehmann of the Max Planck Institute for Innovation and Competition will chair the second session, devoted to A European law for digital contents: the challenge of harmonisation. It will feature presentations by Johannes Druschel of the Ludwig Maximilian University of Munich (Digital contents under the European Sales Law) and Alberto De Franceschi of the University of Ferrara (The issue of digital contents after the Consumer Rights Directive – The ‘button solution’ and the right of withdrawal).

Under the title Managing legal diversity within the Digital Single Market, the third session, chaired by Francisco Garcimartín Alférez of the Universidad Autónoma of Madrid, will address some private international law issues relating to the functioning of the Digital Single Market. Presentations will be delivered by Lorna E. Gillies of the University of Leicester (Cross-border online digital service contracts: Which court decides ? What law applies?) and Pietro Franzina of the University of Ferrara (Localising digital torts: settled and open issues).

Admittance is free, but, for security reasons, those wishing to attend the conference must send an e-mail by Wednesday, 24 June 2015 to Mario Galluppi di Cirella, Vice-President of the AIGA Foundation, at mariodicirella@hotmail.com. The seating capacity of the conference room is limited. Successful applicants will receive a confirmation by 27 June 2015.

The poster of the conference may be downloaded here.

It is my pleasure to announce the release of this work aiming at the preparation of a Model Law OHADAC of private international law. The project has been carried out thanks to the cooperation between ACP Legal, based in Guadeloupe (France), and the entity Iprolex, SL, Madrid, financed by European funds from the INTERREG project for actions in the field of harmonization of business law in the Caribbean.

The initiative began with the establishment of a team led by experts from Spain, France and Cuba: Prof. Dr. Santiago Álvarez González (Santiago de Compostela), Prof. Dr. Bertrand Ancel (Paris II), Prof. Dr. Pedro A. de Miguel Asensio (Complutense, Madrid), Prof. Dr. Rodolfo Dávalos Fernández (La Habana), and Prof. Dr. José Carlos Fernandez Rozas, (Complutense, Madrid). In carrying out this ambitious project Iprolex, SL has also benefited from the support of a large group of specialists who have worked along three distinct stages for a period of over a year.

In the book the preparatory works in view of the Model Law are preceded by in-depth studies on the various systems involved: Jose Maria DEL RIO VILLO, Rhonson SALIM and James WHITE: “Private International Law in the Commonwealth Caribbean and British Overseas Territories”; Bertrand ANCEL, “Départements et collectivités territoriales françaises dans l’espace caraïbe”; Lukas RASS–MASSON, “Enquête sur le droit international privé des territoires de l’Ohadac – l’héritage des Pays–Bas”; José Luis MARÍN FUENTES, “Caracteres generales del sistema de Derecho internacional privado colombiano”, Patricia OREJUDO PRIETO DE LOS MOZOS, “Le droit international privé colombien et le projet de Loi modèle de l’Ohadac”; José Carlos FERNÁNDEZ ROZAS y Rodolfo DÁVALOS FERNÁNDEZ, “El Derecho internacional privado de Cuba”; Enrique LINARES RODRÍGUEZ, “Le droit international prive du Nicaragua et le projet de loi modèle de l’Ohadac”; Ana FERNÁNDEZ PÉREZ, “El Derecho internacional privado de Puerto Rico: un modelo de americanización malgré lui”; José Carlos FERNÁNDEZ ROZAS, “Pourquoi la République Dominicaine a–t–elle besoin d’une loi de droit international prive ?”; Claudia MADRID MARTÍNEZ, “Características generales del sistema de Derecho internacional privado venezolano”.

The volume, written in Spanish, French and English and conceived as a combination of structured reflections and general proposals at a time, aims to achieve two main objectives. The first one is to consistently gather quantitative data and qualitative information in view of an assessment of already existing instruments that may be useful for optimizing the codification of private international law in the Caribbean geographical context. The second objective is to identify the need, social or institutional demands that must be met by a regulation, evaluating its legal and substantive feasibility and setting up the materials, steps and reports which are deemed appropriate to reach the final aim.

The great political and economic importance of the proposed Model Law, together with the fact that the regulation is complex and very broad, suggests that the involvement of stakeholders (through lobbies or directly), being crucial, may prove insufficient or incomplete. For this reason, public dissemination of the Draft is essential in order to make it known and to invite all agents or individuals interested in participating to express their views, opinions or propositions about a possible adjustment of the work while in progress. The following email address has been set for this purposes: iprolex@iprolex.com.

The deliberations that will start after the release of Draft will be vital: they will provide a sufficient perspective of the views and concerns expressed, thus allowing moving on to elaborate a final proposal, which will then be submitted to the corresponding legislative process.

Armonización del Derecho Internacional Privado en el Caribe.  L’harmonisation du Droit International Privé dans le Caraïbe – Harmonization of Private International Law in the Caribbean. Estudios y materiales preparatorios y proyecto de Ley Modelo OHADAC de derecho internacional privado de 2014, Madrid, Iprolex, 20015, 687 pp. ISBN: 978-84-941055-2-4.

Professor Catherine Kessedjian, President of the French Branch of the International Law Association (ILA), is organising an international conference on “INTERNATIONAL LAW AND EUROPEAN UNION LAW – Harmony and Dissonance in International and European Business Law Practice” in conjunction with the Swiss Ministry of Foreign Affairs and the Academy of European Law (ERA) which will take place on 24 and 25 September 2015 in Trier (Germany).
The aim of this conference is to provide legal practitioners with a comprehensive overview and high-level discussions on key topics and recent developments affecting their daily practice at the crossroads of international law and EU law.
Key topics include:
– EU/Member States and international law: who does what? Issues relating to international negotiations, international responsibility, representation in international litigation, international law as a standard of review in CJEU case-law;
– The international dispute resolution mechanism jigsaw: Litigation before European courts: private parties’ access to the ECtHR and the CJEU, equivalent protection system;
– Brussels I and the arbitration exception, primacy of the New York Convention, parallel proceedings and conflicting court and arbitral decisions, recent EU case-law (C-536/13, Gazprom and C-352/13, CDC), 2015 entry into force of the Hague Convention on Choice of Court Agreements: changes and coordination;
– Relationship between ISDS and national judicial systems, protection of the State’s right to regulate and legitimate public policy objectives, establishment and functioning of arbitral tribunals, review of ISDS decisions by bilateral or multilateral appellate mechanisms;
– UN, EU and State sanctions: role and effectiveness, (extra-)territorial scope, impact on fundamental rights and judicial review by the ECtHR (Nada and Al Dulimi) and by the CJEU (Kadi and recent cases), impact on international sales contracts.

It should be noted that the conference fee for members of the ILA is reduced to 100 €.

Further information is available here and here.

A short piece on two recently released papers, both accessible in pdf format (first one in Spanish, second in English). Just click on the title.

I reproduce the abstracts by the authors.

F. J. ZAMORA CABOT, Chair Professor of Private International Law, UJI of Castellon, Spain

Sustainable Development and Multinational Enterprises: A Study of Land Grabbings from a Responsibility Viewpoint

The international community has adopted sustainable development as one of its priority issues. Multinational corporations can however interfere or render it impossible through land grabbings, a complex phenomenon because on many occasions they reach a prominent role that can be seen, among their different appearances, as a real pathology of the above mentioned development.

After having been previously scrutinized with relation to a comment on the case Mubende-Neuman I entertain no doubt at all that such grabbings more often than not turn out to be diametrically opposed to the various targets that outline sustainable development, as have already been revealed, for instance, by Secretary General of the United Nations Ban Ki- Moon, along his consolidated report over the agenda in this regard after 2015.

I propose in here, then, after an Introductory Section, a presentation of the problem following recent cases, showing different conflict situations in selected sectors, Section 2, and others under which collective efforts have achieved or are in the process of attaining remedies in terms of justice, Section 3. I will put an end to my survey with some final reflections, Section 4, within which I will raise the relevant activity carried out by the human rights defenders, in this particular case deeply rooted in the communities and the land where they live and the great credit that deserves to us their continued and brave fight all around the world.

N. ZAMBRANA TÉVAR LLM (LSE), PhD (Navarra) Assistant Professor, KIMEP University (Almaty, Kazakhstan)

Can arbitration become the preferred grievance mechanism in conflicts related to business and human rights?

International law demands that States provide victims of human rights violations with a right to remedy, also in the case of violations of human rights by legal entities. International law also provides some indications as to how State and non-State based dispute resolution mechanisms should be like, in order to fulfil the human rights standards of the right to remedy. Dispute resolution mechanisms of an initially commercial nature, such as arbitration or mediation, could become very useful grievance mechanisms to provide redress for victims of human rights abuses committed by multinational corporations. Still, there are problems to be solved, such as obtaining consent from the parties involved in the arbitration process. Such consent may be obtained by imitating other dispute resolution mechanisms such as ICSID arbitration.

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The first issue of 2015 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features three articles, two comments, and three reports.

Sergio M. Carbone, Professor Emeritus at the University of Genoa and Chiara E. Tuo, Associate Professor at the University of Genoa, examine the issue of third-state defendants and the revised Brussels I Regulation in “Non-EU States and Brussels I: New Rules and Some Solutions for Old Problems” (in English).

The central purpose of this article is to critically assess the changes brought about by the new Brussels I Regulation as regards its scope of application vis-à-vis disputes connected with non-EU countries. Therefore, following an initial outline of the relevant amendments in the Recast, a critical evaluation of the latter against the background of both the ECJ case-law and national practice is presented. The reform is then assessed in the context of the original 2010 recast proposal presented by the EU Commission as well as of the views expressed in literature in relation thereto. The paper maintains that the Recast regime should undergo further revision with a view to implementing cross-border business transactions in the global economy and to satisfying the concomitant demand for greater certainty in international commercial litigation.

Stefania Bariatti, Professor at the University of Milan, analyses the compatibility of recent Italian legislation aimed at the efficiency of the judiciary with the Brussels I and the Brussels Ia Regulations in “I nuovi criteri di competenza per le società estere e la loro incidenza sull’applicazione dei regolamenti europei n. 44/2001 e n. 1215/2012” (The New Jurisdiction Criteria for Foreign Companies and Their Impact on the Application of EU Regulations No 44/2001 and No 1215/2012; in Italian).

Since 2012, the Italian legislature has adopted several statutes aimed at reducing the costs and enhancing the efficiency of the judiciary also through the reduction of the number of courts competent to hear cases where one of the parties is a company having its seat abroad. The latest version of such provisions has been adopted with Decree-Law No 145 of 2013 that centralises these cases at eleven courts. This approach has been taken by other Member States in several fields, mainly invoking the goal of increasing consistency and uniformity of judgments and the specialization of judges to the benefit of all parties. These provisions raise significant questions of compliance with the principles enshrined in the Constitution and they do not seem to attain the goal of uniformity since they provide a double track for purely internal vs cross-border cases. But they appear to be also contrary to some provisions of the Brussels Ia Regulation, in particular where the Regulation directly designates the competent court within a Member State. Hence the question of whether EU law establishes any limits to the power of the Member States to determine the territorial extension of the competence of national courts. The Court of Justice has provided some guidance on these issues in Sanders and Bradbrooke, where the protection of a maintenance creditor and of a minor were at stake. According to the Court, national legislatures should assure the effet utile of EU provisions, while at the same time ensure effective proceedings in cross-border situations, preserve the interests of the weaker party and promote the proper administration of justice. Within the “Brussels I system” such guidance may apply in cases where the position of the parties is unbalanced and the Regulation provides special fora in favour of the weaker party that are based upon proximity. Yet, one may ask whether the solution may differ according to the subject matter of the dispute. Moreover, the fact that the Italian legislature has declared that the fora established under Decree-Law No 145 of 2013 may not be derogated raises the further issue of their compatibility with Article 25 of the Brussels Ia Regulation.

Alfonso-Luis Calvo Caravaca, Professor at the University Carlo III of Madrid and Javier Carrascosa González, Professor at the University of Murcia, provide an assessment of interim and provisional measures under the Brussels Ia Regulation in “Medidas provisionales y cautelares y reglamento Bruselas I-bis” (Interim and Provisional Measures and the Brussels Ia Regulation; in Spanish).

This paper addresses the impact of Council Regulation No 1215/2012 on provisional and protective measures in civil and commercial matters. The paper shows that this Regulation definitively enhances the recognition and enforcement of those measures in the European Union. Provisional and protective measures attempt to reduce the risks of litigation when the debtor tries to hide or sell his assets, which is relatively easy in a globalized international society where free movement of goods and capitals is assured. Hence, Art 42(2) of Regulation No 1215/2012 provides that enforcement in a Member State of a judgment given in another Member State ordering a provisional or protective measure is possible only if the applicant provides the competent authority proof of service of the judgment ordering that provisional measure, in the case that provisional or protective measure was ordered without the defendant being summoned to appear. The new Regulation gives those measures wider possibilities of recognition and enforcement in the EU even if they were adopted inaudita parte debitoris.

In addition to the foregoing, two comments are featured:

Francesca Capotorti, PhD candidate at the University of Milan, “La nuova direttiva sul riconoscimento delle qualifiche professionali tra liberalizzazione e trasparenza” (The New Directive on the Recognition of Professional Qualifications between Deregulation and Transparency; in Italian).

This article focuses on the most innovative features of Directive 2013/55/EU amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012. After having outlined the path that led to the adoption of the Directive and showed the need to modernise Union law in this area, this article analyses a) the European Professional Card; b) partial access; c) professional traineeship; d) common training principles; and e) the further most important revisions of Directive 2005/36/EC aiming at promoting the free movement of professionals. This paper also addresses the novelties introduced by Directive 2013/55/EU to ensure consumer protection and to increase transparency and administrative cooperation. Finally, this article shows that in most cases the European Court of Justice anticipated the results of the new Directive. Still, a Directive is deemed as necessary to clearly and completely regulate the efforts of modernisation in this area, which hopefully will be shared by the European Commission and Member States.

Petr Dobiáš, Senior fellow at the Charles University in Prague, “The New Czech Private International Law” (in English).

The new Act No 91/2012 Coll. on Private International Law was adopted in the Czech Republic on 25 January 2012 and came into force on 1 January 2014. The Act on Private International Law, which takes into consideration the developments in Czech, European and international legislation, was also created with the aim of removing deficiencies and obsolete elements of legislation contained in Act No 97/1963 Coll. on Private and Procedural International Law. In terms of its internal structure, the Act on Private International Law is divided into a total of nine parts which regulate the content of private international law and procedural international law. This article presents and analyses this new legislation, taking into consideration the provisions of the relevant international conventions and secondary law of the European Union. Indeed, the new Act on Private International Law is a response to the new trends in private international law that stem as a result of the current and ongoing developments in international economic relations and in social relationships. As a result of such developments, further flexibility is asked of the domestic provisions of private international law, which must take into account the development of EU Regulations in this area of the law. As this article illustrates, the response to this demand is reflected in several of the provisions laid down in the Act on Private International Law, which emphasize the primacy of EU Regulations and international conventions.

Finally, this issue of the Rivista di diritto internazionale privato e processuale features three reports; one on restitution of cultural objects and two on recent German case-law on private international and procedural issues:

Sebastian Seeger, Assistant at the University of Heidelberg, “Restitution of Nazi-Looted Art in International Law. Some Thoughts on Marei von Saher v. Norton Simon Museum of Art at Pasadena” (in English).

Georgia Koutsoukou, Research Fellow at the Max Planck Institute Luxembourg, “Report on Recent German Case-Law Relating to Private International Law in Civil and Commercial Matters” (in English).

Stefanie Spancken, PhD Candidate at the University of Heidelberg, “Report on Recent German Case-Law Relating to Private International Law in Family Law Matters” (in English).

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale. This issue is available for download on the publisher’s website.

Utrecht Journal of International and European Law is issuing a Call for Papers for its upcoming Special Issue (82nd edition) on ‘Intellectual Property in International and European Law’. With technological advancement and innovative practices occurring ever more frequently, individuals and undertakings often turn to intellectual property law to protect their ideas and seek remedies where appropriate (e.g. the recent Apple v Samsung design dispute). Recent developments in intellectual property are now a regular feature in popular media and a much-discussed topic amongst the general public. As such, the Utrecht Journal will be dedicating its 2016 Special Issue to ‘Intellectual Property in International and European Law’.

The Board of Editors invites submissions addressing legal issues relating to intellectual property law from an international or European law perspective. Topics may include, but are not limited to: the influence of patenting on the competitive process; the use of IP holding companies to take advantage of favourable tax regimes; patent-trolls; copyright infringements; trademark protection; the ethics of IP (e.g. GMOs), etc. All types of manuscripts, from socio-legal to legal-technical to comparative will be considered. However, please note that any analysis solely limited to a national legal system will fall outside the scope of the Journal. An international or European legal dimension is imperative.

 The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via the Journal’s website (www.utrechtjournal.org/about/submissions) and should conform to the Journal style guide. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult our website or email the Editor-in-Chief at utrechtjournal@urios.org.

Deadline for submissions:  15 October 2015

A new working paper of Veerle Van Den Eeckhout on international labour law has been published on SSRN, entitled “The “Right” Way to Go in International Labour Law – and Beyond.”

The abstract reads as follows: The path to follow in (cases of) International Labour Law should be trodden with caution. In this paper, the author highlights several points of attention and issues in the current debate of international labour law. The author also positions some of the issues that are currently being raised in international labour law in similar and broader debates about future developments in Private International Law.

The paper is the written version of a contribution to the expert-meeting “Where do I belong? EU law and adjudication on the link between individuals and Member States”, organized in Antwerp on 7-8 May 2015.

The second edition of “Rome Regulations: Commentary on the European Rules of the Conflict of Laws”, edited by Gralf-Peter Calliess (Chair for Private Law, Private International Law, International Business Law and Legal Theory, University of Bremen), has just been published by Wolters Kluwer (1016 pp, 250 €). The second edition provides a systematic and profound article-by-article commentary on the Rome I, II and III Regulations. It has been extensively updated and rewritten to take account of recent legal developments and jurisprudence in the field of determining the law applicable to contractual (Rome I) and non-contractual (Rome II) obligations. It also contains a completely new commentary on the Rome III Regulation regarding the law applicable to divorce and separation. The aim of the book is to provide expert guidance from a team of leading German, Austrian and Swiss private international law scholars to judges, lawyers, and practitioners throughout Europe and beyond.

In her review of the first edition, my dear fellow conflictoflaws.net co-editor Giesela Rühl complained about a lack of diversity, pointing out that the circle of authors consisted exclusively of younger, male scholars (RabelsZ 77 [2013], p. 413, 415 in fn. 6). Well, not only have we male authors grown older since then; we now have quite a number of distinguished female colleagues on board, too: Susanne Augenhofer, Katharina de la Durantaye, Kathrin Kroll-Ludwigs, Eva Lein and Marianne Roth. For further details, see here.

“This book does what it promises, which is to provide judges and practitioners with easy access to the contents and interpretation of provisions of the Rome I and II Regulations. The thoroughness of the commentaries on most of the provisions also makes it a recommended read for scholars needing a quick orientation regarding several provisions, or wanting to make sure they have not missed out on important background information. A welcome addition to the various topic-based treatises regarding Rome I and II Regulations, the book has succeeded in its goal of furthering the valuable German tradition in terms of the European discourse.” (Xandra Kramer, review of the first edition, Common Market L. Rev. 2014, p. 335, 337)

ArbitralWomen, Transnational Dispute Management and Ashurst are hosting an event in London on 2 July 2015 for the launch of the TDM Special Issue on “Dealing with Diversity in International Arbitration.” The event will be followed by a drinks reception.

This Special Issue will analyse discrimination and diversity in international arbitration. It will examine new trends, developments, and challenges in the use of practitioners from different geographical, ethnic/racial, religious backgrounds as well as of different genders in international arbitration, whether as counsel or tribunal members. The launch of the Special Issue will be followed by the launch of the AW New Website.

Download the brochure here.

With renewable energy disputes seemingly everywhere these days, OGEL and TDM have published a special joint issue focusing on these disputes at the level of international, European and national law. Below is the table of contents:

Introduction – Renewable Energy Disputes in the Europe and beyond: An Overview of Current Cases, by K. Talus, University of Eastern Finland

Renewable Energy Disputes in the World Trade Organization, by R. Leal-Arcas, Queen Mary University of London, and A. Filis

Aggressive Legalism: China’s Proactive Role in Renewable Energy Trade Disputes?, by C. Wu, Academia Sinica, and K. Yang, Soochow University (Taipei)

Mapping Emerging Countries’ Role in Renewable Energy Trade Disputes, by B. Olmos Giupponi, University of Stirling

Green Energy Programs and the WTO Agreement on Subsidies and Countervailing Measures: A Good FIT?, by D.P. Steger, University of Ottawa, Faculty of Law

EU’s Renewable Energy Directive saved by GATT Art. XX?, by J. Grigorova, Paris 1 Pantheon Sorbonne University

Retroactive Reduction of Support for Renewable Energy and Investment Treaty Protection from the Perspective of Shareholders and Lenders, by A. Reuter, GÖRG Partnerschaft von Rechtsanwälten

Renewable Energy Disputes Before International Economic Tribunals: A Case for Institutional ‘Greening’?, by A. Kent, University of East Anglia

Renewable Energy Claims under the Energy Charter Treaty: An Overview, by J.M. Tirado, Winston & Strawn LLP

Non-Pecuniary Remedies Under the Energy Charter Treaty, by A. De Luca, Università Commerciale Luigi Bocconi

Joined Cases C-204/12 to C-208/12, Essent Belgium, by H. Bjørnebye, University of Oslo, Faculty of Law

Ålands Vindkraft AB v Energimyndigheten – The Free Movement Law Perspective, by S.L. Penttinen, UEF Law School, University of Eastern Finland

Recent Renewables Litigation in the UK: Some Interesting Cases, by A. Johnston, Faculty of Law, University College (Oxford)

The Rise and Fall of the Italian Scheme of Support for Renewable Energy From Photovoltaic Plants, by Z. Brocka Balbi

The Italian Photovoltaic sector in two practical cases: how to create an unfavorable investment climate in Renewables, by S.F. Massari, Università degli Studi di Bologna

Renewable Energy and Arbitration in Brazil: Some Topics, by E. Silva da Silva, CCRD-CAM / Brazil-Canada Chamber of Commerce, and N. Sosa Rebelo, Norte Rebelo Law Firm

Renewable Energy in the EU, the Energy Charter Treaty, and Italy’s Withdrawal Therefrom, by A. De Luca, Università Commerciale Luigi Bocconi

Excerpts of these articles are available here and here

A voluminous Festschrift in honour of Gerhard Wegen has recently been published: Christian Cascante, Andreas Spahlinger and Stephan Wilske (eds.), Global Wisdom on Business Transactions, International Law and Dispute Resolution, Festschrift für Gerhard Wegen zum 65. Geburtstag, Munich (CH Beck) 2015; XIII, 864 pp., 199 €. Gerhard Wegen is not only one of the leading German M & A lawyers and an internationally renowned expert on commercial arbitration, but also a honorary professor of international business law at the University of Tübingen (Germany) and a co-editor of a highly successful commentary on the German Civil Code (including private international law). This liber amicorum contains contributions both in English and in German on topics related to international business law, private international and comparative law as well as various aspects of international dispute resolution. For conflictoflaws.net readers, contributions on Unamar and mandatory rules (Gunther Kühne, p. 451), international labour law (Stefan Lingemann and Eva Maria Schweitzer, p. 463), problems of characterization in international insolvency law (Andreas Spahlinger, p. 527) and marital property law in German-French relations (Gerd Weinreich, p. 557) may be of particular interest. Moreover, a large number of articles is devoted to international commercial arbitration (pp. 569 et seqq.). For the full table of contents, see here.

Another recent Festschrift has been published in honour of Wulf-Henning Roth, professor emeritus at the University of Bonn: Thomas Ackermann/Johannes Köndgen (eds.), Privat- und Wirtschaftsrecht in Europa, Festschrift für Wulf-Henning Roth zum 70. Geburtstag, Munich (CH Beck) 2015; XIV, 744 pp., 199 €. Although Roth is generally recognized as one of the leading German conflicts scholars of his generation, this liber amicorum is focused mainly on substantive private and economic law, both from a German and a European perspective. Nevertheless, readers interested in choice of law may discover some gems that deserve close attention: Wolfgang Ernst deals with English judge-made case-law as the applicable foreign law (p. 83), Johannes Fetsch analyses Article 83(4) of the EU Succession Regulation (p. 107), Peter Mankowski looks at choice-of-law agreements in consumer contracts (p. 361), Heinz-Peter Mansel publishes a pioneering study on mandatory rules in international property law (p. 375), and Oliver Remien presents a survey on the application of the law of other Member States in the EU (p. 431). For the full table of contents, see here.