Agrégateur de flux

Professor Gilles Cuniberti (University of Luxembourg) has just published a new monograph on default arbitration in the Rethinking Law series of Edward Elgar Publishing.

The official abstract kindly provided by the publisher reads as follows:

This innovative book proposes a fundamental rethink of the consensual foundation of arbitration and argues that it should become the default mode of resolution in international commercial disputes.

The book first discusses the most important arguments against this proposal and responds to them. In particular, it addresses the issue of the legitimacy of arbitrators and the compatibility of the idea with guarantees afforded by European human rights law and US constitutional law. The book then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions, to offer an additional alternative forum in the doctrine of forum non conveniens or to save judicial costs.

The first dedicated exploration into the groundbreaking concept of default arbitration, Rethinking International Commercial Arbitration will appeal to scholars, students and practitioners in arbitration and international litigation.

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

Comparative conflict of laws is often a useful source for exam (essay) questions. I used People of State of New York v. PriceWaterhouseCoopers, LLP, No. 3685N (N.Y. App. Div. May 23, 2017) to ask my students to surmise how an EU-base court would judge the issue raised.

Keith Goldberg over at LAw360 has the following great summary:

A New York appellate court [.. ] upheld a decision to force ExxonMobil’s outside auditor PricewaterhouseCoopers LLP to comply with New York Attorney General Eric Schneiderman’s demand for documents in his probe of whether the oil giant lied to investors about the climate change risks to its business.
The Appellate Division backed state Supreme Court Judge Barry Ostrager’s Nov. 26 order that PwC turn over documents related to its audit of Exxon subpoenaed by Schneiderman, saying the judge correctly held that New York law, not the law of Texas, where Exxon is headquartered, applies to questions of evidentiary privilege and that the Empire State doesn’t recognize accountant-client privilege.

Mr Ostrager’s decision is here – it has more choice of law considerations than the appelate court’s order. Eversheds have excellent analysis here of the overall issue of considering applicable law for privilege under the first and second restatement of the law. In the case at issue, ExxonMobil as well as the documents disclosure of which is sought (such as projected carbon costs and their application to Exxon’s capital allocation decisions, as well as documents provided to Exxon by PwC concerning the auditor’s role in compiling Exxon’s submissions about greenhouse gas emissions for the Carbon Disclosure Project, a nonprofit that collects information on greenhouse gas emissions) are based at Texas. But the trial is underway in New York.

Now, to the essay Q: how would an EU-based court hold on the issue? (For the purpose of last week’s exam I had a Belgian court rule on the issue, with the oil company based at Belgium, and the accountant at England, with the agreement between company and accountants subject to English law.

I am marking these exams later this week and hope to read some or all of the following: reference to overall principle that procedure is subject to lex fori; that statement being of little use in a system (like the EU) that thrives on predictability: for what is procedure to one, is substantive law to another; arguments existing both pro this being procedure (closely tied up with evidence, clear links with public policy) as well as substantive (privilege despite its public nature also protecting private, including commercial interest; parties wishing to manage the issue of sensitive information and forum); need for autonomous interpretation and tendency within the EU to define the ‘scope of the law applicable’ (eg both in Rome I and II);  no trace in said Regulations of privilege being included in the scope of law applicable.

As always, I am hoping for students to surprise me. Undoubtedly they will.

Geert.

Pourvoi c/ Cour d'appel de Paris, pôle 3, chambre 1, 14 décembre 2016

Pourvoi c/ Tribunal d'instance de Dinan, 5 mai 2017

Cour d'appel d'Aix-en-Provence, chambre de l'instruction, 16e Chambre A, 12 juin 2017

Pourvoi c/ Cour d'appel de Paris, pôle 2, chambre 7, 15 décembre 2016

Santé publique - soins psychiatriques sans consentement

The CJEU held in C-185/15 Kostanjevec in October: I reported on the Opinion and the judgment then went under my radar.

On the issue of temporal applicability, the Court sides with the AG entirely, and I agree it should.

The Court then takes a firmly wide approach to the notion of ‘counterclaim’ in (now) Article  8(3): it is in the interests of the sound administration of justice that the special jurisdiction for counterclaims enables the parties, in the same proceedings and before the same court, to litigate all their claims against each other that have a common origin (at 37). In circumstances such as those of the main proceedings, the counterclaim for reimbursement on the ground of unjust enrichment must be regarded as arising from the leasing contract from which the lessor’s original action originated. The alleged enrichment in the amount of the sum paid in enforcement of the judgment that has since been set aside would not have taken place without that contract. (at 38).

‘Common origin’ of course is a notion which is difficult to decide in abstracto: despite the Court’s attempts to harmonise Article 8(3)’s approach, the potential for national courts to insert local approaches remain. Even the discussion of (now) Article 8(3) in the Jenard Report hinted at the provision being a difficult marriage between local civil procedure rules on the one hand and the need for European harmonisation on the other.

Geert.

(Handbook of) European Private International law, 2nd ed. 2016, chapter 2, Heading 2.2.11.1.a, Heading 2.2.21.3, Heading 2.1.1

Publicité foncière - Référé

Architecte entrepreneur

Majeur protégé - Durée de la mesure de protection renouvelée

It does not happen all that often: this is a call for assistance. Following a student’s Q re ‘habitual residence’ in Rome I, I have now noticed something I had not before (I more often than not use the English version of the Regulation in my teaching and practice): Article 6(1) on ‘consumer contracts’ uses the term ‘habitual residence’ ‘gewone verblijfplaats’ (defined, or not, for natural persons, in Article 19) in the introductory para (which identifies applicable law). However in littera a it then uses ‘domicile’ ‘woonplaats’: a term which is not otherwise used in Rome I and which is not defined by it.

A quick scan of other language versions (French, English, German) reveals no such error: they all use the equivalent of ‘habitual residence’ in both instances. Now, evidently the error must be pushed aside given the other language versions however: is any reader of the blog aware of a corrigendum ever published? For if it has, I cannot locate it.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.5.

The European Parliament’s Policy Department for Citizens Rights and Constitutional Affairs of the is organising a workshop on Potential and challenges of private international law in the current migratory context on 20 June 2017 from 3 to 6.30 p.m.

The reason behind the initiative for this workshop is the tensions and overlaps between the areas of private international law and migration law. These overlaps have become more visible in the context of recent increases of migration. Issues  include jurisdiction, cooperation between authorities, recognition of personal status, family tracing, child marriages, guardianship, kafala, the application of foreign law.

At the workshop two studies will be presented:

• Private international law in a context of increasing international mobility: challenges and potential, and
• Protecting children on the move: a private international law perspective.

For those readers unable to come to Brussels, the studies are available here and the event will be livestreamed here.

Florian Heindler and Bea Verschraegen have just published the proceedings of the IACPIL conference which took place in October 2016 in Vienna:  Internationale Bankgeschäfte mit Verbrauchern, Florian Heindler, Bea Verschraegen (Eds.), IACPIL (Interdisciplinary Association for Comparative and Private International Law) Series 5, Jan Sramek, 2017, 201 pp. ISBN 978-3-7097-0140-9

English translation of the Table of Contents:

• Preface (Bea Verschraegen & Florian Heindler)
• Choice of Court Clauses in Banking Contracts with Consumers (Peter Mankowski, Hamburg)
• Choice of Law Clauses in Banking Contracts with Consumers (Dietmar Czernich, Innsbruck)
• International Jurisdiction and the Law Applicable to Outsourced Distribution of Financial Products (Georg Kodek, Vienna)
• The Law Applicable to Prospectus Liability (Judith Schacherreiter, Vienna)
• Crowdfunding and Crowdinvesting and Conflict of Laws (Gerald Spindler, Göttingen)
• International Jurisdiction and the Law Applicable to Distance Selling of Financial Products and Services (Florian Heindler, Vienna)

See: http://www.jan-sramek-verlag.at/Buchdetails.411.0.html?buchID=278&cHash=299ec37e58