Agrégateur de flux

The University of Valencia (Spain) will be organising a conference on 8 September 2017 on selected issues regarding the new Regulations 2016/1103 and 2016/1104. The conference is part of the project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters” which is co-financed by the European Commission and organised by the University of Innsbruck together with the Universities of Genoa, Prague, Riga, Valencia, Zagreb and the legal publisher IPR Verlag.

The conference is chaired by Prof. Carlos Esplugues, University of Valencia and Prof. Andreas Schwartze, University of Innsbruck.

Topics and speakers:

Overview over Regulations 2016/1103 and 2016/1104, Mr. Franco Salerno-Cardillo, Notary in Palermo (Italy), Council of the Notariats of the European Union (CNEU)

Interaction of Regulations 2016/1103 and 2016/1104 with the Brussels IIa Regulation, Ass. Prof. Dr. Pablo Quinzá, University of Valencia (Spain)

Interaction of Regulations 2016/1103 and 2016/1104 with the Succession Regulation, Ass. Prof. Marion Ho-Dac, University of Valenciennes (France) 

Drawing the border line between Succession Regulation and Matrimonial Property Regulation, Prof. Rainer Hausmann, University of Konstanz (Germany)

Choice of law in the Matrimonial Property Regulation no. 2016/1103, Dr. Susanne Goessl, University of Bonn (Germany)

European Land Registry Association (ELRA) – Application of Regulations 2016/1103 and 2016/1104 in “non-uniform” systems, Mr. Gabriel Alonso Landeta, Land Register in La Coruña (Spain)

Application of Regulations 2016/1103 and 2016/1104 by notaries, Ms. María Reyes Sánchez Moreno, Notary in Alicante (Spain), Council of the Notariats of the European Union (CNEU)

Application of Regulations 2016/1103 and 2016/1104 by land registers, Mr. Mihai Taus, Head of land registry Dept. Of Brasov County Office (Romania), European Land Registry Association (ELRA)

Registration to the conference is possible by sending an email to Ass. Prof. Dr. Pablo Quinzá: pablo.quinza@uv.es.

Please find further information and a detailed conference timetable here.

Or please contact us: anke.schaub@unalex.eu

 

Tobias Gosch has excellent overview of T v O (why o why do States feel the need the hide the identity of companies in commercial litigation) in which the Austrian Supreme Court (Oberster Gerichtshof) ruled on whether potential claims under the Austrian Commercial Agents Act (Handelsvertretergesetz) can be brought before an Austrian court even if the underlying agency agreement contains an arbitration clause and is governed by the laws of New York.

The contested part of the litigation, as Tobias writes, concerns the following: the Agent conducted the procurement of sea freight business in Austria and other countries of the European Union for the Principal. Whilst the territorial scope of the Agent’s activities complies with the conditions for the international overriding mandatory applicability of the compensation provisions of the Directive as set out by the ECJ in Ingmar, the procurement of business is not covered by the relevant definition in the Directive, which only refers to the sale or purchase of goods. Including the procurement of business therefore is a form of gold-plating and the national law’s decision to do so does not uncontestedly fall under the protection of overriding mandatory law. In other words it does not necessarily override parties’ choice of law and ensuing choice of court.

The judgment refers inter alia to Unamar to justify its direction. Rather like, as I reported at the time, the Belgian Supreme Court, the Austrian Supreme Court, too, fails properly to assess whether the Austrian legislator intended the Austrian provisions to be of overriding mandatory law character per Rome I: “1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

The European Court of Justice’s general statement in Unamar that gold-plated provisions may fall under overriding mandatory law, looks set by national courts to be turned into a matter of fact priority.  That surely at some point ought to be disciplined by the CJEU.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8.3.

 

 

The Department for Exiting the European Union has published a policy paper on providing a cross-border civil judicial cooperation framework – a future partnership paper – as part of the negotiations with the EU on Brexit. The paper outlines the United Kingdom’s position on cross-border civil judicial cooperation for the time after Brexit.

The summary reads as follows:

1. As the United Kingdom leaves the European Union, the Government will seek a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.
2. To this end, the UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.
3. We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now.
4. Cooperation with the EU is one part of the UK’s global outlook in this field. The new agreement with the EU would be integral to the UK’s strategy to enhance civil judicial cooperation more widely. Beyond our relationship with the EU, the UK will remain committed to maintaining and deepening civil judicial cooperation internationally, both through continued adherence to existing multilateral treaties, conventions and standards, and through our engagement with the international bodies that develop new initiatives in this field.
5. The EU has presented its position on civil judicial cooperation in the context of separation. The UK is clear that it is in the interests of both the UK and the EU for cooperation in this field to continue as part of our future partnership. Nonetheless, in response, Annex A presents the UK’s view of the principles that should govern the winding down of our existing relationship in the event that no agreement on a future relationship can be reached.

Considering the EU’s position on civil judicial cooperation (see post by Giesela Ruehl on conflictoflaws.net) the “future deep and special partnership” might prove to be not more than wishful thinking and we will rather see a “winding down” of existing relationships, as Annex A suggests.

Pourvoi c./ Cour d'appel de Paris, chambre de l'instruction, 8 juin 2017

Pourvoi c./ Cour d'appel de Montpellier, 5 janvier 2017

Bobek AG opined mid July in C-194/16 Bolagsupplysningen OÜ on the application of the Shevill rule, as supplemented by e-Date advertising, to infringements of a company’s personality rights over the internet.  This is one of those Opinions where summaries fall much, much short of the contents of the original document and I should urge readers to consult the Opinion in full.

An Estonian company operating in Sweden was blacklisted for its allegedly questionable business practices on the website of a Swedish employers’ federation. The Advocate General dryly notes ‘(a)s inevitably happens in the era of anonymous internet bravery, universally known for its genteel style, subtle understanding, and moderation, the website attracted a number of hostile comments from its readers. The Estonian company brought an action before the Estonian courts against the Swedish federation. It complained that the published information has negatively affected its honour, reputation and good name. It asked the Estonian courts to order that the Swedish federation rectify the information and remove the comments from its website. It also requested damages for harm allegedly suffered as a result of the information and comments having been published online.

Can the Estonian courts assert jurisdiction to hear this action on the basis of the claimant’s ‘centre of interests’, a special ground of jurisdiction that the Court previously applied to natural persons, but so far not legal persons? If they can, then second, how should the centre of interests of a legal person be determined? Third, if the jurisdiction of the Estonian courts were to be limited to situations in which the damage occurred in Estonia, the referring court wonders whether it can order the Swedish federation to rectify and remove the information at issue.

The Advocate General suggests there are two novelties in the questions referred: a legal person (not a natural one) is primarily asking for rectification and removal of information made accessible on the internet (and only secondarily for damages for the alleged harm to its reputation). This factual setting, the AG suggests, leads to the question of how far the seemingly quite generous rules on international jurisdiction previously established in Shevill with regard to libel by printed media, and then further extended in eDate to the harm caused to the reputation of a natural person by information published on the internet, may be in need of an update. At the real root of course of the generous rules on jurisdiction for tort, lies the Court’s judgment in Bier. Bobek AG joins Szpunar AG in severely questioning the wisdom of the Bier rule in the age of internet publications.

Now, human rights scholars will enjoy the Advocate General’s tour d’horizon on whether and to what extend companies may enjoy human rights. On the whole I believe he is absolutely right in suggesting that there ought to be no difference between legal persons and natural persons when it comes to the very possession of personality rights (such as the right not to be libelled) and that neither is there any ground to distinguish between natural persons and legal persons when it comes to the jurisdictional consequences of upholding these rights.

Then, to the jurisdictional consequences (para 73 onwards): the AG suggests that ‘putting Shevill online’ (the AGs words) essentially means granting the forum to a large number of jurisdictions simultaneously, 28 within the European Union. That is because allegedly false or libelous information on the internet is instantly accessible in all Member States. Bobek AG suggests such multiplicity of fora stemming from the distribution criterion is very difficult to reconcile with the objective of predictability of jurisdictional rules and sound administration of justice enshrined in recital 15 of the Brussels I Recast Regulation, and does not serve the interests of claimant (although the AG concedes that in litigation practice, sending the defendant on a goose chase throughout the EU may be an attractive proposition). Now, in Bier the CJEU upheld jurisdiction for both locus damni and for locus delicti commissi on the grounds that this was attractive from the point of view of evidence and conduct of proceedings: this gives both the ‘special link’ which the special jurisdictional rules require. Whether the Court will be swayed by the argument that in the internet context, neither is of relevance, remains to be seen. It is true that number of clicks, which presumably is the relevant criteria to establish ‘damage’ in the context of Article 7(2), can be established just as well outside the jurisdiction as inside it (Google Analytics being used in a variety of national proceedings). It is also true however that Bier and Shevill are dogma for the Court and it is unlikely that it will simply abandon or even vary them.

Variation is all the more unlikely in the direction of the alternative suggested by the AG: locus delicti commissi relates to whoever is in charge of publishing and altering the content of the online information. So far so good: this is a useful clarification of Shevill in the internet age and one that has as such been so applied by national courts. Harm then would in the AG’s view have to be defined as where the reputation of the claimant was most strongly affected. That is the place of his centre of interests. The AG further suggests (at 104 ff) that in the case of a profit-making legal person, that is, a company, the jurisdiction is likely to correspond to the Member State where it attains the highest turnover. In the case of non-profit organisations, it is likely to be the place where most of its ‘clients’ (in the broadest sense of the word) are located. In both cases, such a Member State is likely to be the one where the damage to reputation and therefore to its professional existence is going to be felt the most. However in all cases, assessments needs to be fact-specific, and moreover, more than one centre of interests could potentially be established (at 116); that latter concession of course is not likely to endear the AG to the Court, given the requirement of predictability.

Answering then the query re injunctions (under the assumption that is an injunction sought by way of final remedy, not an interim measure), the AG employs the possibility of conflicting directions issued by courts with jurisdiction as to the merits of the case, as further argument to support his view on locus damni. This issue could raise interesting discussions on the usefulness of directions to remove internet content from particular websites only.

All in all, there is an awful lot of to the point analysis by the AG in this opinion. However the Court’s repeated reluctance to vary Bier and Shevill, a formidable obstacle.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.

 

Professor S.I. Strong has just posted a new paper on international procedural law.  From the abstract:

General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners and academics from around the world with a new perspective on international procedural law.

The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights and the rule of law.

The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.

The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics and practitioners in the United States and abroad and offers ground-breaking insights into the nature of international procedural rights.

Prof. Dr.Dr. Fabrizio Marrella has just published his course entitled “Protection internationale des droits de l’homme et activités des sociétés transnationales/International Protection of Human Rights and Activities of Transnational Corporations”, delivered at The Hague Academy of International Law in 2013, as vol. 385, 2016, of the Recueil des cours/Collected Courses (RCADI).

Here is a short abstract:

Since the 1960’s the regulation of multinational corporations has become a hot topic in the international agenda. Fifty years later, the negative (or positive) impact of transnational corporations activities on human rights has steadily increased. Economic globalization has largely involved the activities of transnational corporations and such a trend has even been powered by Nation States. Since the end of the Second World War, Governments have liberalised trade and investment flows and more recently, to cut public deficits, they have started the decentralization, outsourcing and privatization of certain classic functions of the State. International Human Rights Law is based on an inter-State matrix where international responsibilities are imposed on Nation-States, not directly on corporations. Therefore, forum shopping and law shopping strategies have been used by some transnational corporations in order to hide behind State sovereignty while benefiting from dogmas of Public International Law denying any international responsibility for them.

In 2011, the UN Human Rights Council  unanimously adopted the UN Guiding Principles on Business and Human Rights (UNGPs), which is the first global standard for preventing and addressing the risks of adverse impacts on human rights linked to business activities. The UNGPs encompass three pillars outlining how states and businesses should implement the framework: 1) The state duty to protect human rights; 2) The corporate responsibility to respect human rights and 3) Access to remedy for victims of business-related abuses.

Such a framework clearly identifies different roles and “responsibilities” but does not differentiate situations of “accountability” from those of “legal responsibility”. It makes Corporate Social Responsibility operative through the obligation of “due diligence” and impact evaluations to identify and remedy adverse effects.

All that has implications both for public international law and for private international law. Private international law analysis, in particular, becomes crucial to explore, as it is done in the second part of the course, the legal meaning of the implementation of the third pillar of the UNGPs, i.e. on access to remedies for victims of violations of human rights committed in the context of business activities. If remedies precede rights, it is regrettable that the third pillar turns out to be the weakest one as compared to the other two. Indeed, it becomes evident that the proliferation of international treaties of protection of human rights, international acts, supervisory bodies, laws, initiatives of RSE or doctrinal studies, risk to remain just different forms of political dialogue if they have no effective legal use for victims on the ground.

Further information, including a table of contents and some extracts, is available on the publisher website.

 

Portare avanti un blog – non importa se di poche pretese, come questo – richiede una scorta di tempo, idee, energie e motivazione, nonché qualche soldo da parte per far fronte alle spese. La redazione di Aldricus non dispone più di queste risorse. Nel chiudere il blog, ringraziamo di cuore tutti quanti hanno contribuito a rendere bella questa esperienza.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be hosting its XL Seminar entitled “The Migration of Persons and Capital within the Framework of Private International Law” at the Universidad Autónoma de San Luis Potosí (San Luis Potosí, Mexico) from 15 to 17 November 2017. The seminar will focus on a wide array of topics such as international legal co-operation, international family law, international contracts, and alternative dispute resolution.

Potential speakers are invited to submit a paper in Spanish, English, French or Portuguese by 1 October 2017. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available by mid-October. It is envisaged that registration for the seminar will be free of charge for all participants by sending a message to the e-mail included below. Please note that space is limited.

More detailed information will soon be made available on the Mexican Academy website http://www.amedip.org/amedip_mexico/.  Some information is already available on the Facebook page of the Mexican Academy, click here. Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

Applications for the 2018 Nygh Hague Conference Internship Award are open and close on 30 September 2017.

The award contributes towards the costs of a student or graduate of an Australian law school working for up to six months at the Secretariat of the Hague Conference on Private International Law in the Netherlands. It aims to foster Australian involvement in the work of the Hague Conference and is established in honour of the late Hon. Dr. Peter Nygh AM. The Australian Institute of International Affairs and the Australian Branch of the International Law Association sponsor the award.

Further details and information on how to apply is available at:  http://www.internationalaffairs.org.au/news-item/2018-nygh-internship-applications-open/.

Prof. Symeon C. Symeonides,Willamette University – College of Law, uploaded recently two articles on SSRN.

The Third Conflicts Restatement’s First Draft on Tort Conflicts Abstract

This Article discusses the first draft of the proposed Third Conflicts Restatement dealing with tort conflicts. The Draft’s most noteworthy features include: (1) the distinction between conduct-regulating and loss-allocating tort rules; (2) the application of the law of the parties’ common home state in loss-allocation conflicts; and (3) a rule giving victims of cross-border torts the right to request the application of the law of the state of injury, if the occurrence of the injury there was objectively foreseeable,

The Draft is a vast improvement from the Second Restatement. It accurately captures the decisional patterns emerging in the more than forty U.S. jurisdictions that have joined the choice-of-law revolution, and which have been cast in statutory form in the successful codifications of Louisiana and Oregon. It strikes an appropriate equilibrium between certainty and flexibility and generally makes good use of the lessons of the revolution without reproducing its excesses.

Suggested citation:

Symeonides, Symeon C., The Third Conflicts Restatement’s First Draft on Tort Conflicts (August 5, 2017). Tulane Law Review, Vol. 92, 2017. Available at SSRN: https://ssrn.com/abstract=3014068

What Law Governs Forum Selection Clauses Abstract

This Article examines how American courts answer the question of which law governs the enforceability and interpretation of forum selection (FS) clauses in cases that have contacts with more than one state. It divides the cases into categories, depending on whether the question is litigated in the court chosen in the FS clause or in another court, and whether or not a choice-of-law clause accompanies the FS clause.

The Article finds that: (1) When the action is filed in the court chosen in the FS clause, all courts ap-ply the internal law of the forum state, without any choice-of-law analysis, both in interpreting the clause and in determining its enforceability; and (2) When the action is filed in another court, most courts apply the internal law of the forum (with or without a choice-of-law analysis) in determining whether the clause is enforceable and the law that governs the contract in interpreting the clause.

The Article explains why the distinction between interpretation and enforceability is necessary, and why the application of forum law to the question of enforceability is appropriate.

Suggested Citation:

Symeonides, Symeon C., What Law Governs Forum Selection Clauses (August 5, 2017). Louisiana Law Review, Vol. 78, No. 4, 2018. Available at SSRN: https://ssrn.com/abstract=3014070

In addition, mention needs to be made to his recent lecture at the Hague Academy, which was published June this year.

Private International Law: Idealism, Pragmatism, Eclecticism. General Course on Private International Law, Volume 384

More details can be found here.

The Max Planck Institute for Procedural Law in Luxembourg and the Vrije Universiteit Brussel are jointly organising a Conference on ‘Jurisdiction, Conflict of Laws and Data Protection in Cyberspace’ which intends to contribute to the ongoing discussion on the challenges to the protection of privacy in the Digital Age. The organizers describe this event as follows:

„Thanks to the Internet, people who are thousands of miles apart can effortlessly engage in social interactions, business transactions and scientific dialogue. As pointed in by John Perry Barlow in his famous ‘Declaration of the Independence of Cyberspace’, all these activities rely – more or less consciously – on sophisticated data-exchanges which take place ‘both everywhere and nowhere’, lying outside the borders of any particular State.

Against this backdrop, the regulatory challenge posed by the ephemeral nature of the information exchanged via the Web – and of the Web itself – is twofold. While Private International Law struggles to frame the allegedly borderless nature of cyberspace within the dominant discourses of law and territoriality, Data Protection Law has to reconcile the individuals’ fundamental right to privacy with the public interests connected to the processing of personal data.

The conference will explore some of the most controversial issues lying at the intersection between these two areas of law, by addressing, in particular, the problems arising in connection with cross-border telematics exchanges of data in the field of biomedical research and the contractual relationships stemming from social networking and the use of social media.“

The conference will take place at the Max Planck Institute in Luxembourg on Thursday, 12 October 2017. Participation is free of charge. For a list of speakers, the full programme and details on registration, please see here.

Pourvoi c./ Cour d'appel de Paris, juridiction du premier président, 11 janvier 2017

Pourvoi c./ Cour d'appel de Versailles, chambre de l'instruction, 18 avril 2017

Pourvoi c./ Cour d'appel de Cayenne, chambre sociale, 28 novembre 2016

Irrecevabilité

Irrecevabilité

Following the formation of a specialized law drafting committee nearly 4 years ago, the implementation Act on cross border placement of children in accordance with Art. 56 Brussels IIa has been published in the Official State Gazette on June 23, 2017. The ‘Act’ constitutes part of a law, dealing with a number of issues irrelevant to the subject matter in question. The pertinent provisions are Articles 33-46 Law 4478/2017.

Art. 33 establishes the competent Central Authority, which is the Department for International Judicial Cooperation in Civil and Criminal Cases, attached to the Hellenic MoJ. Art. 34 lists the necessary documents to be submitted to the Greek Central Authority. Art. 35-37 state the requirements and the procedure for the placement of a child to an institution or a foster family in Greece. Advance payment for covering the essential needs of the child, and the duty of foreign Authorities to inform the respective Greek Central Authority in case of changes regarding the child’s status, are covered under Art. 38 & 39 respectively.

Art. 40 regulates the reverse situation, i.e. the placement of a Greek minor to an institution or a foster family within an EU Member State. A prior consent of the competent foreign State Authority is imperative, pursuant to Art. 41. The necessary documents are listed under Art. 42, whereas the procedure to be followed is explained in Art. 43. The modus operandi regarding the transmission of the judgment to the foreign Authority is clarified in Art. 44. A duty of the Prosecution Office for minors to request information on the status of the child at least every six months is established under Art. 45. Finally, Art. 46 covers aspects of transitional nature.

Prima facie it should be stated that the implementing provisions are welcome. In a country where not a single domestic tool has been enacted in the field of judicial cooperation in civil matters since the Brussels Convention era, this move allows us to hope for further initiatives by the government. However, swiftness is the key word in the matter at stake, and I wouldn’t be sure whether the procedure enacted would fully serve the cause.

Beyond that, there are some other hot topics related to the Brussels IIa Regulation and its implementation in Greece, the first and foremost being the rules and procedures for issuing the certificates referred to in Art. 39, 41 & 42 [Annexes I-IV of the Regulation]. Bearing in mind that the latter forms almost part of the court’s daily routine (at least in major first instance courts of the country), priority should have been given to an implementing act providing guidance on this issue, in stead of opting to elaborate on a matter with seemingly minimal practical implications.

Last but not least, it should be reminded that a relevant study has been released last year, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee of the European Parliament, which may be retrieved here.

The Permanent Bureau of the Hague Conference on Private International Law has recently issued a document illustrating the application of the 1996 Hague Child Protection Convention to unaccompanied and separated children.

The document, drafted in preparation of the upcoming meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, concludes that dialogue and collaboration “should be facilitated between authorities responsible for international co-operation in child protection matters – at both the domestic and international levels – with those responsible for immigration and asylum matters, with regard to the operation of the 1996 Convention in order to better assist unaccompanied and separated children across borders”.

The hope is also expressed, among other things, that “UNICEF and UNHCR officials will meet with government officials from some Central Authorities designated under the 1996 Convention to discuss and examine the application of the 1996 Convention to unaccompanied and separated children” and that “the global implementation of the 1996 Convention will assist with the on-going elaboration and future realisation of the United Nations Global Compact on Refugees and Global Compact for Migration”, referred to in the New York Declaration for Refugees and Migrants adopted by the General Assembly of the United Nations on 19 September 2016.