Conflictoflaws

This post has been written by Martina Mantovani.

On 10 September 2015, Advocate General Wahl delivered his opinion in Case C-350/14, Florin Lazar, regarding the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). Pursuant to this provision, a non-contractual obligation arising out of a tort is governed, as a general rule, by the law of “the place where the damage occurred”, irrespective of the country in which the event giving rise to the damage occurred “and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerns a fatal traffic accident occurred in Italy.

Some close relatives of the woman who died in the accident, not directly involved in the crash, brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

Before the Tribunal of Trieste, seised of the matter, the issue arose of whether, for the purposes of the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, the question was whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” under Article 4(1), or rather as an “indirect consequence of the event”, with no bearing on the identification of the applicable law.

According to AG Wahl, a “direct damage” within the meaning of Article 4(1) does not cover the losses suffered by family members of the direct victim.

In the opinion, the Advocate General begins by acknowledging that, under the domestic rules of some countries, the close relatives of the victim are allowed to seek satisfaction in their own right (iure proprio) for the pecuniary and non-pecuniary losses they suffered as a consequence of the fatal (or non-fatal) injury suffered by the victim, and that, in these instances, a separate legal relationship between such relatives and the person claimed to be liable arises and co-exists with the one already set in place between the latter and the direct victim.

In the Advocate General’s view, however, domestic legal solutions on third-party damage should not have an impact on the interpretation of the word “damage” in Article 4(1), which should rather be regarded as an autonomous notion of EU law. The latter notion should be construed having due regard, inter alia, to the case law of the ECJ concerning Article 5(3) of the 1968 Brussels Convention and of the Brussels I Regulation (now Article 7(2) of the Brussels Ia Regulation), in particular insofar as it excludes that consequential and indirect (financial) damages sustained in another State by either the victim himself or another person, cannot be invoked in order to ground jurisdiction under that provision (see, in particular, the judgments in Dumez and Tracoba, Marinari and Kronhofer).

That solution, the Advocate General concedes, has been developed with specific reference to conflicts of jurisdictions, on the basis of considerations that are not necessarily as persuasive when transposed to the conflicts of laws. The case law on Brussels I, with the necessary adaptation, must nevertheless be treated as providing useful guidance for the interpretation of the Rome II Regulation.

Specifically, AG Wahl stresses that the adoption of the sole connecting factor of the loci damni in Article 4(1) of the Rome II Regulation marks the refutation of the theory of ubiquity, since, pursuant to the latter provision, torts are governed by one law. The fact of referring exclusively to the place where the damage was sustained by the direct victim, regardless of the harmful effects suffered elsewhere by third parties, complies with this policy insofar as it prevents the splitting of the governing law with respect to the several issues arising from the same event, based on the contingent circumstance of the habitual residence of the various claimants.

The solution proposed would additionally favour, he contends, other objectives of the Regulation. In particular, this would preserve the neutrality pursued by the legislator who, according to Recital 16, regarded the designation of the lex loci damni to be a “fair balance” between the interests of all the parties involved. Such compromise would be jeopardised were the victim’s family member systematically allowed to ground their claims on the law of the place of their habitual residence. The preferred reading would moreover ensure a close link between the matter and the applicable law since, while the place where the initial damage arose is usually closely related to the other components of liability, the same cannot be said, generally, as concerns the domicile of the indirect victim.

In the end, according to AG Wahl, Article 4(1) of Regulation No 864/2007 should be interpreted as meaning that the damages suffered, in their State of residence, by the close relatives of a person who died as a result of a traffic accident occurred in the State of the court seised constitute “indirect consequences” within the meaning of the said provision and, consequently, the “place where the damage occurred”, in that event, should be understood solely as the place in which the accident gave rise to the initial damage suffered by the direct victim.

The up-date version of two papers of Veerle Van Den Eeckhout has been published on SSRN.

The first up-dated paper, entitled “Choice and Regulatory Competion: Rules on Choice of Law and Forum”, analyzes the Rules of Private International Law from the perspective of “Choice and Regulatory Competition”. The up-dated version is to be found here.

The second up-dated paper, entitled “The “Right” Way to Go in International Labour Law – and Beyond”, discusses several current issues in international employment law. The up-dated version is to be found here.
The final papers will be published each in the books of the conferences in the context of which they have been written (a conference in Maastricht and in Antwerp respectively).

The official program for the November 2 event in Washington DC can be found here, as well as the online RSVP link.

The event will feature remarks by Dean William Treanor, Georgetown University Law Center, an Opening Presentation by Christophe Bernasconi, Secretary General, Hague Conference on Private International Law, and a Keynote speech by the Hon. Rimsky Yeun, Hong Kong Secretary of Justice. The day will also feature panels concerning the operation of the Conventions in theory And practice, the work of the national Central Authorities, comparative insights from both common law and civil law lawyers, and consideration of the critical challenges that will face the Conventions over the next half-century.

The conference will be held on the campus of Georgetown University Law Center, 600 New Jersey Ave., NW, Washington D.C., on the 12th floor of the Gewirz Building.

The sponsor of this event is the Center on Transnational Business and the Law, Georgetown University Law Center. The event is co-sponsored by the Hague Conference on Private International Law, the American Branch of the International Law Association, the American Society of International Law, the ABA Section of International Law and the International Law Institute. Contributing co-sponsors include: Covington & Burling LLP, Jones Day, and Winston & Strawn

The fourth edition of the EU-Zivilprozessrecht: EuZPR by Prof. Peter Schlosser and Prof. Burkhard Hess, updated and thoroughly reworked, has just been released.

The book is an answer to a well-known fact : in a ever-closer European Union mutual recognition and enforcement of judgments in the individual Member States is becoming increasingly important. In this very timely published, easy to handle commentary, the essential elements of the EU Zivilprozessrechts to date are comprehensively commented, with a look to the practice. The following  instruments are to be found therein,  annotated provision by provision:   the Brussles I bis Regulation; the Regulation on the European enforcement order; the Regulation on the European order for payment; the small claims Regulation; the Regulation establishing a European Account Preservation Order procedure; the Regulation on the service of documents; the Regulation on the taking of evidence; the Hague Convention on the service of documents, as well as the one on the taking of evidence.

The book approach makes of it a very valuable tool for lawyers and notaries with an international-oriented practice, judges and other judicial authorities. Of course, also for academics.

Data sheet: in German; 623 pp. Format (B x L): 12,8 x 19,4 cm

ISBN 978-3-406-65845-7

For further information on the book and to order it on line click here.

Last Thursday (1 October 2015), the Convention of 30 June 2005 on Choice of Court Agreements (the Convention) entered into force in 28 States (Mexico and all Members of the European Union, except Denmark). This results from Mexico’s accession to the Convention in 2007 and the recent approval of the Convention by the European Union. This momentum is set to encourage other States currently considering becoming a party to the Convention.

The Convention has been designed to provide more legal certainty and predictability in relation to choice of court agreements between parties to international commercial contracts. It ensures three things: a court chosen by the parties must, in principle, hear the case; any other court before which proceedings are brought must refuse to hear them; and the judgment rendered by the chosen court must be recognised and enforced in other Contracting States.

As consistently recognised by judges, practitioners and other key players within the international legal community, the application of the Convention will deliver adequate responses to the increasingly pressing need in international transactions for enforceable choice of court agreements and their resulting judgments.

For further information on the Convention click here.

Recent comments on the entering into force by Prof. Pedro de Miguel (Universidad Complutense, Madrid) can be seen here.

Last weekend the GEDIP (Group européen de droit international privé / European Group for Private International Law) met in Luxembourg. The GEDIP defines itself as “a closed forum composed of about 30 experts of the relations between private international law and European law, mainly academics from about 18 European States and also members of international organizations”. Nevertheless, as the meeting was hosted by the MPI -together with the Faculty of Law of Luxembourg- I had the privilege of being invited to the deliberations.

The history and purpose of the Group are well known: founded in 1991 (which means that it has just celebrated its 25fh anniversary), the Group has since then met once a year as an academic and scientific think tank in the field of European Private International Law. During the meetings the most recent developments in the area are presented and discussed, together with proposals for improving the European PIL legal setting. Actually, while the latter activity is at the core of the GEDIP gatherings, the combination with the former results in a well-balanced program. At the same time it shows the openness and awareness of the Group to what’s happening in other fora (and vice versa): the Commission -K. Vandekerckhove joined as observer and to inform on on-going activities-; the Hague Conference -represented this time by M. Pertegás, who updated us on the work of the Conference-, or the ECtHR -Prof. Kinsch summarized the most relevant decisions of the Strasbourg Court since the last GEDIP meeting.

In Luxembourg we enjoyed as hors d’oeuvre a presentation by Prof. C. Kohler on the CJEU Opinion 2/13, Opinion of the Court (Full Court) of 18 December 2014, on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedom. Prof. Kohler started recalling the principle of mutual trust as backbone of the Opinion. From this he moved on to focus on the potential impact of the Opinion on PIL issues, in particular on the public policy clause in the framework of the recognition and enforcement of judgements in civil and commercial matters (here he recalled the recently published decision on C-681/13, where the Opinion is expressly quoted); and on cases of child abduction involving Member States, where the abolition of exequatur may elicit a doubt on the compliance with the ECHR obligations (see ad.ex. the ECtHR decision on the application no. 3890/11, Povse v. Austria). A second presentation, this time by Prof. T. Hartley, addressed the very much disputed issue of antisuit injunctions and the Brussels system in light of the Gazprom decision, case C-536/13. Prof. Hartley expressed his views on the case and explained new strategies developed under English law to protect the effects of choice of court agreements, like the one shown in AMT Futures Limited v. Marzillier, where the latter is sued for having induced the clients of the former to issue proceedings in Germany and to advance causes of action under German law, and thereby to breach the terms of the applicable exclusive jurisdiction and choice of law clauses. AMT claims damages against Marzillier for their having done so, its claim being a claim in tort for inducement of breach of contract

The heart of the meeting was the discussion on two GEDIP on-going projects: a proposal for a regulation on the law applicable to companies, and another on the jurisdiction, the applicable law, the recognition and enforcement of decisions and the cooperation in divorce matters. The first one is at its very final stage, while the second has barely started. From an outsiders point of view such a divergence is really interesting: it’s like assisting to the decoration of a baked cake (companies project), or to the preparation of the pastry (divorce project). Indeed, in terms of the intensity and quality of the debate it does not make much difference: but the fine-tuning of an almost-finished legal text is an amazing encaje de bolillos task, a hard exercise of concentration and deploy of expertise to manage and conciliate a bunch of imperative requisites, starting with internal consistency and consistency with other existing instruments. I am not going to reproduce here the details of the argument: a compte-rendu will be published in the GEDIP website in due time. I’d rather limit myself to highlight how impressive and strenuous is the work of finalizing a legal document, making sure that the policy objectives represented by one provision are not belied by another (the moment this happens the risk is high that the whole project, the underlying basics of it, is unconsciously being challenged), checking the wording to the last adverb, conjunction and preposition, deciding on what should be part of the text and what should rather be taken up in a recital, and so on. By way of example, let me mention the lively discussion on Sunday on the scope and drafting of art. 10 of the proposal on the law applicable to companies, concerning the overriding mandatory rules: I am really eager to see what the final outcome is after the heated debate on how to frame them in the context of a project where party autonomy is the overarching principle, at a time when companies are required to engage in the so-called corporate social responsibility whether they want it or not. Only this point has remained open and has been reported to the next meeting of the GEDIP next year.

I wouldn’t like to end this post without referring to the commitment of the GEDIP and its members with the civil society concerns. On Saturday Prof. Van Loon presented a document drafted in light of the plight of migrants, refugees, and asylum seekers in Europe. The text, addressed to the Member States and Institutions of the EU, aims to raise awareness of the immediate needs of these groups in terms of civil status and of measures to protect the most vulnerable persons within them. Reworked to take up the comments of the members of the GEDIP, a second draft was submitted on Sunday which resumes the problematic and insists on the role of PIL instruments in that context.

All in all, this has been an invaluable experience, for which I would like to thank the GEDIP and in particular the organizers of the event here, Prof. Christian Kohler and Prof. Patrick Kinsch.

The proceedings of the working sessions and the statements of the Group will soon be posted on its Website and published in various law reviews.

In a judgment of 16 September 2015, in the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and others (Case C?519/13), the ECJ clarified the interpretation of Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation).

The judgment originated from a request for a preliminary ruling submitted by the Supreme Court of Cyprus in the framework of proceedings initiated by a Cypriot bank against, inter alia, individuals permanently resident in the UK.

The latter claimed that the documents instituting the proceedings had not been duly served. They complained, in particular, that some of the documents they had received (namely the order authorising service abroad) were not accompanied by a translation into English and that the standard form referred to in Article 8(1) of Regulation No 1393/2007 was never served on them.

Pursuant to Article 8 of the Service Regulation, the “receiving agency”, ie the agency competent for the receipt of judicial or extrajudicial documents from another Member State under the Regulation, must inform the addressee, “using the standard form set out in Annex II”, that he has the right to refuse to accept a document if this “is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed”.

In its judgment, the ECJ held that the receiving agency “is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document”, and that this requirements must be fulfilled “by using systematically … the standard form set out in Annex II”. The Court also held, however, that, where the receiving agency fails to enclose the standard form in question, this “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation”.

The ECJ based this conclusion on the following remarks.

Regarding the binding nature of the standard form, the Court noticed that the wording of Article 8 of the Regulation is not decisive, and that the objectives of the Regulation and the context of Article 8 should rather be considered.

As regards the objectives of the Regulation, the Court stated that the uniform EU rules on the service of documents aim to improve the efficiency and speed of judicial procedures, but stressed that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in Article 47 of the Charter of Fundamental Rights of the EU and Article 6(1) of the ECHR.

The Court added, in this regard, that “it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission”. It is thus necessary to strike a balance between the interests of the applicant and those of the defendant by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected.

As concerns the system established by the Service Regulation, the ECJ began by noting that the service of documents is, in principle, to be effected between the “transmitting agencies” and the “receiving agencies” designated by the Member States, and that, in accordance with Article 5(1) of the Regulation, it is for the transmitting agency to inform the applicant that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, whereas it is for the applicant to decide whether the document at issue must be translated.

For its part, the receiving agency is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, the receiving agency must, among other things, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in Article 8(1).

By contrast, the said agencies “are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages” specified in Article 8(1). Any other interpretation, the ECJ added, “would raise legal problems likely to create legal disputes which would delay or make more difficult the procedure for transmitting documents from one Member State to another”.

In the main proceedings, the UK receiving agency considered that the order authorising service of the document abroad should not be translated and deduced from that that it was not required to enclose with the document at issue the relevant standard form.

In reality, according to the ECJ, the Service Regulation “does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied”. Actually, “it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant”.

The latter court “will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the rights of the defence on the part of the addressee”.

Specifically, as regards the use of the standard forms, the ECJ observed, based on the Preamble of the Regulation, that the forms “contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission”, and are regarded by the Regulation as “instruments by means of which addressees are informed of their ability to refuse to accept the document to be served”.

The wording of the Regulation and of the forms themselves makes clear that the ability to refuse to accept a document in accordance with Article 8(1) is “a ‘right’ of the addressee of that document”. In order for that right to usefully produce its effects, the addressee of the document must be informed in writing thereof.

As a matter of fact, Article 8(1) of the Regulation contains two distinct statements. On the one hand, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand. On the other hand, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, in the Court’s view, “the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee”.

The ECJ went on to stress that the refusal of service is conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State. It is ultimately for the court seised to decide whether that condition is satisfied, by checking whether the refusal by the addressee of the document was justified. The fact remains, however, that the exercise of that right to refuse “presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right”.

This explains why the receiving agency, where it serves or has served a document on its addressee, “is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document”. This obligation, the Court stressed, should not create particular difficulties for the receiving agency, since “it suffices that that agency enclose with the document to be served the preprinted text as provided for by that regulation in each of the official languages of the European Union”.

Moving on to the consequences of a failure to provide information using the standard form, the ECJ noted, at the outset, that it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.

Rather, the Court reminded that, in Leffler — a case relating to the interpretation of Regulation No 1348/2000, the predecessor of Regulation No 1393/2007 — it held that the non-observance of the linguistic requirements of service does not imply that the procedure must necessarily be declared invalid, but rather involves the necessity to allow the sender to remedy the lack of the required document by sending the requested translation. The principle is now laid down in Article 8(3) of Regulation No 1393/2007.

According to the ECJ, a similar solution must be followed where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.

In practice, it is for the receiving agency to inform “without delay” the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1), the relevant standard form. In the event that, as a result of that information, the addressees concerned make use of their right to refuse to accept the document at issue, it is for the national court in the Member State of origin to decide whether such a refusal is justified in the light of all the circumstances of the case.

Dr. Christoph Reithmann and Professor Dr. Dieter Martiny (editors) have just published a new edition of their standard treatise on international contract law: Internationales Vertragsrecht – Das internationale Privatrecht der Schuldverträge, 8th. ed., Cologne (Dr. Otto Schmidt) 2015.

This 2348-pages strong volume is universally acknowledged as one of the leading works on international contract law in the German language. It features in-depth analyses not only of the Rome I-Regulation, but also of various aspects not dealt with in Rome I, such as capacity and agency. Moreover, it also contains a chapter on choice of law under the Rome II Regulation. The book has been written by a team that is made up of renowned German and Swiss PIL scholars and practitioners. Highly recommended! For further information, see the publisher’s website here.

Here is the update for the PILAGG program 2015: past events and the ones foreseen from September 2015 on.

 

I. GLOBAL PARADIGM AND LEGAL METHOD(S): MARCH 2015

The emergence of a global legal paradigm upsets assumptions/fictions developed within the modern, Westphalian model, which takes the law to be a self-contained, stable and coherent system and designs its method(s) accordingly. To what extent, then do comparative and internationalist perspectives provide plausible alternative legal methodology(ies) within an emerging “global legal paradigm”? Paying critical attention to law in global context is likely to constitute a “dangerous method” with respect to its subversive and emancipatory potential.

• The Mind and the Method(s): Jan Smits (Maastricht)
• Global Legal Paradigm: Ralf Michaels (Duke)

II. LAW AND AUTHORITY WITHOUT (STATE) PEDIGREE: MAY 2015

Competing, diffuse, post-Westphalian forms of authority and correlative displacements of power to non-state actors are difficult to capture in legal terms.  Is it possible to take seriously – whether to legitimize, challenge, or govern – new, diffuse and disorderly expressions of authority and normativity which do not necessarily fit traditional forms of legal knowledge, nor respond to familiar methods of legal reasoning? Is legal pluralism adequate to assess legitimacy of such claims or to solve conflicts between them? What are the alternative accounts of informal law (s) beyond the state?

• Transnational Authority: Max del Mar and Roger Cotterell (Queen Mary, London)

 

RENTREE 2015:What are the specific insights of the discipline of the conflict of laws in respect of some of the most significant issues which challenge contemporary legal theory, in its attempts to integrate the radical changes wrought by globalisation in the normative landscape beyond (framed outside, or reaching over) the nation-state. Indeed, remarkably, these changes have brought complex interactions of conflicting norms and social systems to the center-stage of jurisprudence. This means that the conflict of laws has a plausible vocation to contribute significantly to a “global legal paradigm” (Michaels 2014), that is, a conceptual structure adapted to unfamiliar practices, forms and “modes of legal consciousness” (Kennedy 2006). Conversely, however, private international legal thinking has all to gain from attention to the other legal disciplines that have preceded it in the effort to “go global”. Thus, it needs to undergo a general conceptual overhauling in order to capture law’s novel foundations and features. In this respect, it calls for an adjustment of its epistemological and methodological tools to its transformed environment. It must revisit the terms of the debate about legitimacy of political authority and reconsider the values that constitute its normative horizon. From this perspective, the ambition of this paper is to further the efforts already undertaken by various strands of legal pluralism, as an alternative form of “lateral coordination” in global law (Walker 2015), towards the crafting of a “jurisprudence across borders” (Berman 2012). Societal constitutionalism (Teubner 2011), which has explicitly made the connection between transnational regime-collison and the conflict of laws, provides a particularly promising avenue for unbounding the latter, which might then emerge as a form of de-centered, reflexive coordination of global legal interactions.

 

III.     CONFLICTS OF LAWS UNBOUNDED:?THE CASE FOR A LEGAL-PLURALIST REVIVAL. : 25th SEPTEMBER 2015

•  Horatia Muir Watt (Sciences-po Ecole de droit) FRIDAY 25 Septembre 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussant : Loic AZOULAI (Sciences po, Ecole de droit)

 (NB Martijn Hesselink will give his talk later on in the term

IV. GLOBAL LEGAL PLURALISM AND THE CONFLICT OF NORMS: OCTOBER 9th

“It has now been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena.  During those two decades, a rich body of work has established pluralism as a useful descriptive and normative framework for understanding a world of relative overlapping authorities, both state and non-state.  Indeed, there has been a veritable explosion of scholarly work on legal pluralism, soft law, global constitutionalism, the relationships among relative authorities, and the fragmentation and reinforcement of territorial boundaries »[Berman 2012]. Competing plural and transnational assertions of authority are singled out as the emblematic feature of our complex world, while the defining problem in contemporary legal thought lies in the interactions of legal traditions, social spheres, cultural values, rights and identities, epistemologies or world-visions. Various responses come in the form of a search for consensus (around constitutional values), the promotion of new utopias (the quest for global justice), the celebration of diversity as competition (law and economics), the devising of methodologies designed to mediate or coordinate (systems theory), or renewed definitions of authority and legitimacy (socio-legal studies). At first sight, the conflict of laws would appear to fit quite well among these pluralist strands of thought.

• Paul Schiff Berman: A jurisprudence across borders
• Discussant: Jean-Philippe ROBE

V. GLOBAL LAW AND INTERDISCIPLINARY INQUIRY: OCTOBER 16th

Law’s status as (empirical)  social science, repeatedly mooted then rejected in the name of its “internal” or dogmatic perspective, is arguably the most significant methodological debate in its modern history. But what is it about globalization which makes the need for interdisciplinarity resurface today in view of rethinking legal method? Is global law a relevant object of inquiry for the social sciences? Can the methods of private international law help frame a common problematic?  

Alexander Panayatov attempts an exercise in an inter-disciplinary conceptual clarification.  Discussing the impediments to, and conditions for,  inter-disciplinary collaboration based on exploring law and political science research cultures, he evaluates “The Legalization and World Politics” (LWP) project that offers a framework for deploying political science methodology to law. He also offers a supplementary framework for studying jurisdictional politics. This framework will specify four distinct mechanisms accounting for the creation of transnational jurisdictional regimes

•  Alexander Panayatov (NYU): Transnational jurisdictional regimes and interdisciplinarity FRIDAY OCTOBER 16th 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussants : Véronique Champeil-Desplat (Paris X), auteure de Méthodologies du droit et des sciences du droit, Dalloz 2014
• Jérôme Sgard (Sciences po Paris)

VI. INTIMATIONS OF GLOBAL LAW: NOVEMBER 13th

Indisputably, globalisation, or its contemporary (fourth?[1]) avatar, is inflicting an identity crisis upon the conflict of laws[2]. One of the reasons for this is that it shows up the link between legal methods elaborated in view of dealing with conflicting norms and the framing of law’s origins, functions and objects within a particular legal paradigm. In other words, modes of legal reasoning in the face of conflicting norms and claims to authority reflect various conceptions and expectations as to what law is and does, where it comes from and the types of issues it deals with. Change affecting these assumptions and representations about the world affects established forms of legal knowledge; probing them is, as we know, a distinctly “dangerous method”. So what is left of state-bound legal-theoretical conceptions of the law in its “global intimations”?

•  Neil WALKER:  The intimations of global law
• Mikhail XIFARAS: Further global intimations

 

UPCOMING EVENTS :

THE CONSTRUCTION OF GLOBAL LAW : Date to be determined

Various attempts are being from a markedly public law perspective (global administrative law/global constitutionalism) to build a global law. These are all certainly relevant to contemporary “private” international law, to the extent that the discipline has always had a strong process-orientation (remember “conflicts justice”?) and is currently in the process of renewal from the perspective of  fundamental individual and collective rights. Meanwhile (as we have already seen), the new Brussels school has turned to pragmatism in legal philosophy (Benoît Frydmann), while Gunter Teubner’s “societal constitutionalism” is a significant contender from an interdisciplinary  perspective. Interestingly, both of these use specifically private international tools, methods or approaches (jurisdiction and RSE; conflicts solutions to legal pluralism).  The last session discussed the potential contribution of socio-legal theory to this debate, with a view to understanding new forms of transnational authority.  But what happens to private law in this process?

THE RIGHT TO JUSTIFICATION IN GLOBAL PRIVATE LAW: Martijn Hesselink, (Amsterdam)

Ulf Bergquist, Domenico Damascelli, Richard Frimston, Paul Lagarde, Felix Odersky and Barbara Reinhartz have written an article-by-article commentary on the new EU Succession Regulation that recently entered into force. Authored by members of the Experts Group that drafted the Commission’s Proposal for the Regulation the commentary discusses all crucial points of the new legal framework including:

• law applicable to a succession,
• election as to the applicable law,
• recognition and enforcement,
• authentic instruments,
• the European Certificate of Succession.

The commentary is available in English, French and German. More information is available here and here.

This post has been written by Ester di Napoli.

In a judgment of 9 September 2015 (Christophe Bohez v. Ingrid Wiertz, Case C-4/14), the European Court of Justice (ECJ) clarified the interpretation of Article 1(2) and Article 49 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (Brussels I), corresponding to Articles 1(2) and 55 of Regulation No 1215/2012 (Brussels Ia), as well as the interpretation of Article 47(1) of Regulation No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The questions referred to the Court concerned the enforcement of a penalty payment (astreinte) issued to ensure compliance with the rights of access to children granted to one of the parents.

While Article 49 of the Brussels I Regulation states that judgments ordering “a periodic payment by way of a penalty” are enforceable in a different Member State “only if the amount of the payment has been finally determined by the courts of the Member State of origin”, no equivalent provision may be found in the Brussels IIa Regulation. The latter merely specifies, in Article 47(1), that the enforcement procedure is governed by the law of the Member State of enforcement.

The case from which the judgment originated may be summarised as follows.

Mr Bohez and Ms Wiertz married in Belgium in 1997 and had two children. When they divorced, in 2005, Ms Wiertz moved to Finland. In 2007, a Belgian court rendered a decision on the responsibility over the children. As a means to ensure compliance with the rights of access granted to the father, the court set at a periodic amount per child to be paid to Mr Bohez for every day of the child’s non-appearance, and fixed a maximum amount that the defaulting parent could be requested to pay under the astreinte.

The mother failed to comply with the Belgian decision, so the father sought enforcement of the Belgian order in Finland relying on Article 49 of Brussels I Regulation. The Finnish authorities observed that the amount of the payment had not been determined in the Member State of origin, and added that, in any event, the request did not fall within the scope of the Brussels I Regulation but rather within the scope of the Brussels IIa Regulation.

The ECJ, seised by the Finnish Supreme Court, pointed out that the scope of Brussels I Regulation is limited to “civil and commercial matters”, and that the inclusion of interim measures is determined “not by their own nature but by the nature of the rights that they serve to protect”.  Thus, since the Brussels I Regulation expressly excludes from its scope “the status of natural persons” (notion “which encompasses the exercise of parental responsibility over the person of the child”), the Court held that Article 1 of Brussels I Regulation must be interpreted as meaning that it does not apply to the enforcement of a penalty payment imposed in a judgment concerning matters of parental responsibility.

The ECJ then moved on to consider the interpretation of the Brussels IIa Regulation.

It recalled that mutual recognition of judgments concerning rights of access is “a priority within the judicial area of the European Union” and observed that, although the Regulation does not contain any provision on penalties, a penalty payment imposed in a judgment concerning rights of access “cannot be considered in isolation as a self-standing obligation, but must be considered together with the rights of access which it serve to protect and from which it cannot be dissociated”. Accordingly, its recovery forms part “of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by Regulation No 2201/2003”.

The Court stressed that, in order to seek enforcement of the decision ordering a penalty payment, the amount must have been finally determined by the courts of the Member State of origin. Where the penalty payment has not been determined, “a requirement, in the context of Regulation No 2201/2003, for quantification of a periodic penalty payment prior to its enforcement is consistent with the sensitive nature of rights of access”.

The Supreme Court of Canada has released its decision in Chevron Corp v Yaiguaje (available here).  The issue before the court was whether the Ontario courts have jurisdiction to recognize and enforce an Ecuadorian judgment (for over $US 18 billion) where the foreign judgment debtor Chevron Corporation (“Chevron”) claims to have no connection with the province, whether through assets or otherwise.  On one view, because the process for enforcing a foreign judgment is to commence a new domestic proceeding and thereby sue on the foreign judgment, the enforcement proceeding must have its own independent analysis of jurisdiction.  Put another way, there cannot be a proceeding in respect of which the court does not have to have jurisdiction.  On a different view, because the analysis of the claim on the foreign judgment considers, among other things, the sufficiency of the rendering court’s jurisdiction (Chevron defended on the merits in Ecuador), that is the only required analysis of jurisdiction and there is no need for a separate consideration of the enforcing court’s jurisdiction.  The Supreme Court of Canada, agreeing with the Court of Appeal for Ontario, has held that the latter view is correct.

In summarizing its conclusion (para 3) the court stated “In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute.  It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum.  Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment.”

While the court does not say that NO jurisdictional basis is required, it states that the basis is found simply and wholly in the defendant being served with process (see para 27).  This runs counter to the court’s foundational decision in Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 which separated the issue of service of process – a pure procedural requirement – from the issue of jurisdiction.  To say the service itself founds jurisdiction is arguably to have no jurisdictional requirement at all.

Interestingly, a recent paper (subsequent to the argument before the court) by Professor Linda Silberman and Research Fellow Aaron Simowitz of New York University (available here) considers the same issue in American law and concludes that the dominant view of courts there remains that an action to enforce a foreign judgment requires a “jurisdictional nexus” with the enforcing forum.  They note that only a minority of countries allow enforcement of a foreign judgment without any jurisdictional threshold for the enforcement proceedings.  They argue that the New York decisions which subsequently are relied on by the Supreme Court of Canada (para 61) are the outliers.

Had the Supreme Court of Canada required a showing of jurisdiction in respect of the enforcement proceeding, it would have had to address how that requirement would be met.  Of course, in most cases it would be easily met by the defendant having assets in the jurisdiction.  The plaintiff would not have to prove that such assets were present: a good arguable case to that effect would ground jurisdiction.  Evidence that assets might, in the future, be brought into the jurisdiction could also suffice.

While the court is correct to note that the considerations in defending the underlying substantive claims are different from those involved in defending enforcement proceedings (para 48), the latter nonetheless allow reasonable scope for defences to be raised, such as fraud, denial of natural justice or contravention of public policy.  With no threshold jurisdiction requirement, judgment debtor defendants will now be required to advance and establish those defences in a forum that may have no connection at all with them or the judgment.

The enforcement proceedings were also brought against Chevron Canada, an indirect subsidiary of Chevron that does have a presence in Ontario, although it is not a named defendant in the Ecuadorian judgment.  The Supreme Court of Canada held that the Ontario court had jurisdiction over Chevron Canada based on its presence, with no need to consider any other possible basis for jurisdiction.  The decision is thus important for confirming the ongoing validity of presence-based jurisdiction (see paras 81-87).

On a pragmatic level, eliminating an analysis of the enforcing court’s jurisdiction may simplify the overall analysis, but hardly by much.  The court notes (para 77) that ” Establishing jurisdiction merely means that the alleged debt merits the assistance and attention of the Ontario courts.  Once the parties move past the jurisdictional phase, it may still be open to the defendant to argue any or all of the following, whether by way of preliminary motions or at trial: that the proper use of Ontario judicial resources justifies a stay under the circumstances; that the Ontario courts should decline to exercise jurisdiction on the basis of forum non conveniens; that any one of the available defences to recognition and enforcement (i.e. fraud, denial of natural justice, or public policy) should be accepted in the circumstances; or that a motion under either Rule 20 (summary judgment) or Rule 21 (determination of an issue before trial) of the Rules should be granted.”  And in respect of Chevron Canada (para 95), the “conclusion that the Ontario courts have jurisdiction in this case should not be understood to prejudice future arguments with respect to the distinct corporate personalities of Chevron and Chevron Canada.  [We] take no position on whether Chevron Canada can properly be considered a judgment-debtor to the Ecuadorian judgment.  Similarly, should the judgment be recognized and enforced against Chevron, it does not automatically follow that Chevron Canada’s shares or assets will be available to satisfy Chevron’s debt.”

Deniz Halil Deren has authored a book (in German) on expropriation in private international law (“Internationales Enteignungsrecht – Kollisionsrechtliche Grundlagen und Investitionsschutzfragen”). Published by Mohr Siebeck the book looks at issues of choice of law and investor protection.

The official abstract reads as follows:

Since the 20th century, states have extensively been exercising their right to expropriate private property. These expropriations have involved goods (such as works of art, means of production or natural resources) as well as shares, claims and intellectual property rights. Yet under what conditions does German law recognise expropriations performed by other states and what role does investment protection law play in this context?

Further information is available on the publisher’s website.

The Oberlandesgericht of Munich has recently lodged a request for a preliminary ruling concerning the interpretation of Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, ie the Rome III Regulation (Case C-281/15, Soha Sahyouni v Raja Mamisch).

The request provides the ECJ with the opportunity of delivering, in due course, its first judgment relating specifically to the Rome III Regulation.

To begin with, the referring court asks the ECJ to provide a clarification as to the scope of the uniform conflict-of-laws regime set forth by the Regulation. In particular, the German court wonders whether the Regulation also applies to ‘private divorces’, namely divorces pronounced before a religious court in Syria on the basis of Sharia.

If the answer is in the affirmative, the referring court asks whether, in the case of an examination as to whether such a divorce is eligible for recognition in the forum, Article 10 of the Regulation must also be applied. According to the latter provision, where the law specified by the Regulation to govern the divorce or the legal separation “does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex”, the lex fori applies instead.

Should the latter question, too, be answered in the affirmative, the referring court wishes to know which of the following interpretive options should be followed in respect of Article 10: (1) is account to be taken in the abstract of a comparison showing that, while the law of the forum grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to different procedural and substantive conditions than access for the first spouse? (2) or, does the applicability of Article 10 depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

Finally, were the ECJ to assert that the second of these options is the correct one, the Oberlandesgericht of Munich seeks to know whether the fact that the spouse discriminated against has consented to the divorce — including by duly accepting compensation — constitutes itself a ground for not applying Article 10.

Konrad Duden from the Max Planck Institute in Hamburg has authored a book (in German) on surrogate motherhood in private international law and the law of international civil procedure (“Leihmutterschaft im Internationalen Privat- und Verfahrensrecht. Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts”). Published by Mohr Siebeck, the book looks at filiation and public policy in the light of constitutional, international and European law. The official abstract reads as follows:

More and more Germans seek out foreign surrogate mothers to bear children which they will then raise as their own. But does a child legally belong to these parents once they return to Germany? Surrogate motherhood raises questions, regardless of the fact that the fundamental and human rights of the child often prescribe clear answers.

Further information is available on the publisher’s website.

This post is meant to remind our readers that the Academy of European Law (ERA) will host an international conference on recent experience and current trends in international commercial litigation, with a special focus on European private international law. The event will take place in Trier (Germany), on 8-9 October 2015. While registration will still be possible after 8 September 2015, this date marks the deadline for the „early bird“ rebate. Even after this deadline, however, discounts will be available for young lawyers and academics.

This conference will bring together top experts in international commercial litigation who will report on their experiences in this field including litigation strategy and tactics. An updated conference programme is available here.

Key topics will be:

• Recent case law of the CJEU on business litigation in light of the changes brought by the recent recast of the Brussels I Regulation
• Forthcoming changes after the entry into force of the new Hague Choice of Court Convention in June 2015
• The recast of the Insolvency Regulation in summer 2015
• The revision of the Small Claims Procedure in 2015
• The Regulation establishing a European Account Preservation Order

The conference language will be English. The event is organized by Dr Angelika Fuchs, ERA, in cooperation with Professor Jan von Hein, University of Freiburg (Germany). The speakers are

• Robert Bray, Head of Unit, Secretariat, Committee on Legal Affairs, DG Internal Policies, European Parliament, Strasbourg/Brussels
• Professor Gilles Cuniberti, University of Luxembourg
• Raquel Ferreira Correia, Counsellor, Lisbon
• Emilia Fronczak, Loyens & Loeff, Luxembourg
• Sarah Garvey, Counsel and Head of KnowHow in the Litigation Department, Allen & Overy LLP, London
• Jens Haubold, Partner, Thümmel, Schütze & Partner, Stuttgart
• Professor Jan von Hein, Director of the Institute for Foreign and International Private Law, Dept. III, University of Freiburg
• Brian Hutchinson, Arbitrator, Mediator, Barrister, GBH Dispute Resolution Consultancy; Senior Lecturer, University College Dublin
• Professor Xandra Kramer, Erasmus University Rotterdam; Deputy Judge of the District Court of Rotterdam
• Alexander Layton QC, Barrister, Arbitrator, 20 Essex Street, London.

For further information and registration, please click here.

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

Christoph Benicke, Die Anknüpfung der Adoption durch Lebenspartner in Art. 22 Abs. 1 S. 3 EGBGB
In Germany, step child adoption by the partner of a same sex civil union (registered partnership) has been legal since 2004, but was restricted to the other partner’s biological child. 2014, following a landmark ruling by the German Constitutional Court the German Parliament has enacted legislation that rescinded this restriction and allowed thereby partners of registered same-sex couples to legally adopt the other partner’s adoptive child. Not mandated by the Constitutional Court’s ruling the legislator stopped short of totally putting same sex registered partnerships on equal footing with traditional marriages. The joint adoption by both partners is still reserved to the spouses of a heterosexual marriage.
On the occasion of this new legislation, a special choice of law rule for the adoption by same sex partners has been enacted. The general choice of law rule (Art. 22 par. 1 s. 2 EGBGB) calls for the national law of the adoptive parent. In the case of the adoption by one or both spouses of a heterosexual marriage the law applicable to the general effects of the marriage (Art. 14 EGBGB) is to be applied. This holds true for the joint adoption by both spouses or for the single (step parent) adoption by only one spouse. The new rule for same sex partners (Art. 22 par. 1 s. 3 EGBGB) follows the example of the rule for married couples, in that it calls for the application of the law that governs the general effects of the registered partnership, i.e. the law of the registering state (Art. 17b par. 1 EGBGB). However, the new rule for same sex partners limits itself to the case of the adoption by only one partner, leaving unregulated the choice of law question of a joint adoption by both partners. The single and only reason for this limitation is the ban on joint adoption by same sex partners in German internal adoption law, not taking into account, that the laws of other countries allow the joint adoption by same sex partners. As there is no valid reason for this limitation in regard to the choice of law question this same rule must be extended to cover the joint application for the adoption by both partners. The general choice of law rule would lead to a quite preposterous result as it would call for the joint application of the national laws of both partners, whereas in the case of the adoption by only one partner the law that governs the effects the same sex partnership would apply.
The new legislation also casts new light on the discussion of the ramifications of Art. 17b par. 4 EGBGB. This rule limits the effects of a same sex partnership that was registered in another country and therefore is governed by this other country’s laws. The legal effects cannot exceed the effects of a registered same sex partnership under German internal law. Under the previous law the majority opinion was that Art. 17b par. 4 EGBGB bans same sex partners from adopting jointly in Germany even if the joint adoption was legal under the applicable foreign adoption law. In granting the unrestricted step child adoption German law effectively allows partners to adopt a child jointly, just in two immediately consecutive proceedings. Therefore, there are no real differences left in regard to the legal effects of a registered partnership under a foreign law that allows the simultaneous joint adoption by same sex partners in one and only proceeding.

Christoph Thole, The differentiation between Brussels I and EIR in annex proceedings and the relation to art. 31 CMR
On the occasion of the ECJ ruling (4.9.2014 – C-157/13), the author discusses the precedence of special conventions (CMR) according to art. 71 (1) Brussels I-reg. and the question of the criteria necessary for the application of art. 3 EIR. With respect to art. 3 EIR, the ECJ rightly concludes that an action for the payment of a debt based on the provision of carriage services taken by the insolvency administrator of an insolvent undertaking in the course of insolvency proceedings is covered not by the EIR, but is a civil matter within the Brussels I-reg. However, once again, the Court has failed to further elaborate on the criteria necessary for the classification of an action as an insolvency-related action within the meaning of art. 3 EIR and art. 1 para. 2 lit. b Brussels I-reg.
With respect to art. 71 Brussels I-reg., it is a step forward that, in contrast to earlier verdicts, the ECJ itself decided upon the compatibility of the convention with the principles of EU law, instead of referring the matter to state courts. It would have been even more conclusive to rely on the wording of Art. 71 (1) Brussels I-reg. and omit the unwritten necessity of compatibility with EU Law entirely.

Burkhard Hess/Katharina Raffelsieper, Debtor protection within Regulation 1896/2006: Current gaps in European procedural law
Regulation 1896/2006 does not provide for effective debtor protection in cases when a European Order for Payment was not properly served on the debtor. As a result of the unilateral nature of the procedure for issuing the order, the order will be declared enforceable if the defendant does not challenge it within a period of 30 days. However, the service of the payment order shall safeguard the right to a defense. When the defendant has never been informed about the ongoing procedure, he should be able to easily contest the Order for Payment even after it has been declared enforceable. Yet, the text of the Regulation does not provide for a remedy in this situation. In a reference for a preliminary ruling, the Local Court Berlin-Wedding asked the European Court of Justice which remedy should apply. The referring court suggested an application by analogy of the review proceedings provided for in Article 20 of Regulation 1896/2006 in order to ensure an effective right to a defense. Regrettably, the CJEU did not endorse this solution. It declared national procedural law applicable in accordance with Article 26 of the Regulation. As a consequence, parties are sent to the fragmented remedies of national procedural laws. As the efficiency and uniform application of Regulation 1896/2006 is no longer guaranteed, the European lawmaker is called to remedy the insufficient situation. This article addresses the final decision of the Local Court which implemented the CJEU’s judgment.

Peter Huber, Investor Protection: Lugano Convention and questions of international insolvency law
The article discusses a recent decision of the German Bundesgerichtshof which primarily deals with matters of international jurisdiction in tort claims under Article 5 No. 3 of the Lugano Convention. In doing so, the author also analyses to what extent the decision is in line with the more recent judgment of the ECJ in Kolassa v Barclays Bank. A second issue of the decision is how provisions of foreign insolvency law which modify a creditor’s claim against a (not insolvent) co-debtor of the insolvent party should be characterised under domestic German private international law.

Christoph Thole, Porsche versus Hedgefonds: The requirements for lis pendens under Art. 32 reg. 1215/2012 (Art. 30 reg. 44/2001)
Porsche SE, which is currently trying to fend off several actions for damages connected to the failed takeover of Volkswagen, has reached a partial success before the OLG Stuttgart. The OLG has ruled that the negative declaratory action against an institutional investor in Germany takes precedence over the action for performance filed in London. The proceedings clearly demonstrate how fiercely disputes concerning the place of jurisdiction in capital market law are fought. Specifically, the court needed to judge upon the necessary requirements for lodging the claim with the court under Art. 30 of the Brussels I-reg. (Art. 32 Reg. No. 1215/2012). The decision as well as most of the reasoning is convincing.

Peter Mankowski, Lack of reciprocity for the recognition and enforcement of judgments between Liechtenstein and Germany
Liechtenstein fashions a system of recognition and enforcement of foreign judgments with a strict and formal requirement of reciprocity in the Austrian tradition. In particular, judgments from Germany are not recognised in Liechtenstein. The retaliative price Liechtenstein has to pay is that judgments from Liechtenstein are not recognised in Germany, either, for lack of reciprocity. Methodologically, German courts are idealiter required to research whether reciprocity is guaranteed in a foreign country in relation to Germany. The popular lists in the leading German commentaries should only serve as a starting point.

Lars Klöhn/Philip Schwarz, The residual company’s applicable law
The “theory of the residual company (Restgesellschaft)” deals with legal problems that may arise in the context of winding-up companies doing business in at least two countries. In Germany, the theory applies in particular to English private companies limited by shares (“Limited”) with assets in Germany. If a Limited is dissolved in its home country, the residual company will come into existence and be considered as the owner of the company’s “German” assets. The discussion in the literature as well as recent case law by Higher Regional Courts (Oberlandesgerichte) has focused on the question which law applies to the residual company. This paper analyzes the newest judgement on this issue by the Higher Regional Court of Hamm, which states that German law applies. The authors agree with this result while pointing out that this conclusion will be reached regardless of whether one follows the theory of domicile (Sitztheorie) or the theory of establishment (Gründungstheorie). Furthermore, German law applies irrespective of whether the company is still doing business or has already entered into liquidation.

Piotr Machnikowski/Martin Margonski, Rechtskrafterstreckung auf Vorfragen im internationalen Zuständigkeitsrecht: Anerkennung von punitive damages- und actual damages-Urteilen in Polen
The case note concerns the judgment of the Polish Supreme Court of October 11, 2013 on the enforceability of US-American punitive damages and judgments on actual damages in Poland. The enforceability has been rejected in case of punitive damages which, as a rule, are contrary to Polish public policy as such. Polish civil law is governed by the principles of compensation and restitution of the damage. The damage should be repaired to the condition that would have existed had the wrong not occurred. The injured party may not be enriched as a result of the damages awarded. The compensation law in Poland does recognize some exceptions to that rule which allow to grant compensation not closely based on the value of the restored damage. Such exceptions are, however, justified under the constitutional proportionality principle. Punitive damages do not meet such requirements to the extend they peruse penal objectives. They are permissible only to the extent they perform a compensatory function and are linked to the damage suffered. In case of actual damages, such conflict with the Polish public order does not occur by nature of the legal instrument. Yet, the said proportionality principle may lead to only a partial enforceability of a US-American actual damages judgment. The crucial factor here is how closely the factual setting of the case is connected to Poland. The judgment in question addresses the general problem of partial enforceability of foreign judgments, which has been found possible in case of divisible obligations. Despite some critique on detailed aspects of the findings, the case note positively appraises the judgment.

Bernhard König, Austrian money judgments which do not finally determine the amount of payment
Judgments given in a Member State which are enforceable in that State are enforceable in other Member States. Difficulties could arise if a money judgment was given in a Member State which does not require a final determination of the amount of the payment in the judgment itself and has to be enforced in a Member State which national law requires the final determination of the amount of payment already in the judgment. This paper offers a glimpse to the question if and to what extent other Member States will have to deal with Austrian judgments which have not finally determined the amount of the payment.

Miguel Gómez Jene/Chris Thomale, Arbitrator liability in International Arbitration
Recent decisions by Spanish courts raise questions upon the conditions as well as the extent of arbitrator liability. Authors suggest a distinction between qualified adjucative and simple managerial tasks: It is only when acting as a quasi-adjudicative agent that arbitrators should be essentially exempt from personal liability. Conversely, as far as an arbitrator’s conduct of an arbitration procedure is concerned, he should assume general tort liability for negligence.

Jürgen Samtleben, The New Panamanian Code of Private International Law – A Kaleidoscope of Conflict of Laws
Panama is known as an important banking center and as the registered office of many internationally active corporations. Therefore, international relations between private subjects need specific regulation. Up to now, the private international law of Panama found its basis in individual provisions of the Civil Code, the Family Code and some special laws. These provisions were replaced by Law 7 of 2014, which contains in 184 articles a comprehensive regulation of nearly all conflict-of-law topics. The following article gives an overview of the new Law. As a result, it must be stated that the Law contains many flaws, due to insufficient coordination between the different parts and a lack of careful editing of the individual articles. In Panama, as well, the law has been criticized and there is a call for its thorough reform.

Paul Beaumont, Professor of European Union and Private International Law and Director of the Centre for Private International Law, University of Aberdeen (Scotland/UK), and Jayne Holliday, Research Assistant and Secretary of this Centre, have published an insightful and carefully researched new working paper on “Recent Developments on the Meaning of ‘Habitual Residence’ in Alleged Child Abduction Cases” in the series of the Aberdeen Centre for PIL (Working Paper No. 2015/3, the full content is available here). The highly recommended article is based on an overview of the recent developments within European and International Family Law that was presented by Professor Beaumont at the conference on “Private International Law in the Jurisprudence of European Courts – Family at Focus” held in Osijek, Croatia, June 2014. Drawing from that presentation, the working paper focuses on the recent developments on the meaning of habitual residence in child abduction cases from the UK Supreme Court and the Court of Justice of the European Union (CJEU). In particular, the authors analyze the move by the UK Supreme Court towards a more uniform definition of habitual residence in line with the jurisprudence of the CJEU under the Brussels IIbis Regulation.

The authors summarize their findings as follows:

“Over the past 30 years the concept of habitual residence of the child in the UK has developed from one which put weight on parental intention to a mixed model, which takes a more child centric and fact based approach. By following the jurisprudence of the CJEU, the UK Supreme Court has made a genuine and conscious attempt to provide a uniform interpretation of the 1980 Abduction Convention. This will hopefully have the effect of creating a more uniform approach to the definition of habitual residence amongst all Contracting States to the Hague Abduction Convention. […] If enough weight is given to parental intention of the custodial parent(s) of newborns then physical presence is not required to establish habitual residence. This is an easier solution to arrive at if the myth that habitual residence is a pure question of fact is abandoned. Whilst a mixed question of fact and law is the best way to analyse the ‘habitual residence’ of the young child, it is not appropriate to introduce into the equation a suggestion that somehow habitual residence cannot change when the custodial parent lawfully removes a child to another country just because that decision was still subject to appeal in that country even though the appeal did not suspend the custodial parent’s right to take the child out of the country lawfully. Such an appeal should not prevent the loss of the child’s habitual residence in the country where the appeal is made and should not impact on the ‘stability’ of the child’s residence in the new jurisdiction to prevent habitual residence being established there within a few months of the residence beginning.”

Matthias Weller is Professor for Civil Law, Civil Procedure and Private International Law at the EBS University for Economics and Law Wiesbaden and Director of the Research Center for Transnational Commercial Dispute Resolution (www.ebs.edu/tcdr) of the EBS Law School.

Mutual trust amongst the Member States of the European Union in other legal systems is a prerequisite for the expansion of the free movement of judgments and judicial titles within the European Judicial Area. To justify such mutual trust amongst the European Member States requires, inter alia, the definition of common minimum standards in the various judicial systems.

A joint project between the law faculties of the University of Regensburg (Prof. Dr. Christoph Althammer) and the EBS Law School in Wiesbaden (Prof. Dr. Matthias Weller, Mag.rer.publ.) has set itself the goal to search for and explore further such minimum standards in the judicial systems within the European Judicial Area. After the first conference in Wiesbaden in 2014 (see conference report earlier on this blog here), where the discussion has been initiated from a broader perspective, the project will be continued with the upcoming two-days-conference in Regensburg (conference language: German) that is dedicated to a central issue within this field: European minimum standards for judicial bodies.

The focus will be on three main requirements (independence, efficiency, specialization) which will be presented by experts from both academia and legal practice. These topics will be complemented by a legal comparative analysis with regard to the French, Greek and Italian legal system before the discussion will conclude with a final synthesis.

We would like to cordially invite you to join the discussion! For registration and the conference flyer see here.

It has not yet been mentioned on this blog that Volumes 10 and 11 of the Munich Commentary on the German Civil Code (Münchener Kommentar zum Bürgerlichen Gesetzbuch), are now available in their sixth edition (2015). A standard German language treatise on both German and European private international law the new edition contains a detailed article-by article analysis of the Rome I, II and III Regulations (by Abbo Junker, Munich; Dieter Martiny, Hamburg/Frankfurt an der Oder); Ulrich Spellenberg, Bayreuth; Peter Winkler von Mohrenfels, Rostock), the Hague Protocol on Maintenance (Kurt Siehr, Hamburg/Zurich), the European Succession Regulation (Anatol Dutta, Regensburg), and the Hague Conventions on the Protection of Children and Adults (by Kurt Siehr, Hamburg/Zurich; Volker Lipp, Göttingen).

The sixth edition is the first edition that has been edited by our co-editor Jan von Hein (Freiburg/Germany). Jan is the successor to Hans-Jürgen Sonnenberger (Munich) and has contributed to the commentary himself with a completely new section on the general principles of European and German private international law.

Further information is available on the publisher’s website.