Agrégateur de flux

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

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2016: Brexit ante portas!
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2015 until November 2016. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

P. Mankowski: Modern Types of Migration in Private International Law
Migration has become a ubiquitous phenomenon in modern times. Modern immigration law has developed a plethora of possible reactions and has established many different types of migrants. Private international law has to respond to these developments. The decisive watershed is as to whether a migrant has acquired refugee status under the Geneva Refugees Conventions. If so, domicile substitutes for nationality. A mere petition for asylum does not trigger this. But subsidiary protection as an equivalent status introduced by EU asylum law must be placed on equal footing. Where habitual residence is at stake, it does matter whether a residence has been acquired legally or illegally under the auspices of immigration law. Yet for judging whether a habitual residence exists, the extension of permits might be a factor.

C. Mäsch/B. Gausing/M. Peters: Pseudo-foreign Ltd., PLC and LLP: Limited in liability or rather in longevity? – The Brexit’s impact on English corporations having their central administration in Germany
On 23rd of June 2016, the people of the United Kingdom voted in a referendum against the UK staying in the European Union. If, as can be expected, the withdrawal negotiations under Art. 50 of the EU Treaty will not address the issue of pseudo-English corporations operating in the remaining Member States of the EU, the Brexit will have severe consequences for companies incorporated under English law (e.g. a Ltd., PLC or LLP) having their central administrative seat in Germany. No longer protected by the freedom of establishment within the EU (Art. 49, 54 TFEU) these legal entities will be under German PIL and the so-called Sitztheorie subjected to domestic German company law. They will thus be considered simple partnership companies (German GbR or OHG), losing from one day to the next i.a. their limited liability status – an unexpected and unjustified windfall profit for creditors, a severe blow for the company shareholders. In this paper it will be argued that the outcome can and indeed should be rectified by resorting to the legal rationale of Art. 7 para 2 EGBGB (Introductory Act to the German Civil Code). This provision preserves the legal capacity of a natural person irrespectively of whether a change in the applicable law stipulates otherwise. Extending that concept to legal entities will create a “grace period” with a fixed duration of three years during which the English law continues to apply to a “German” Ltd., PLC or LLP, giving the shareholders time to decide whether to transform or re-establish their company.

L. Rademacher: Codification of the Private International Law of Agency – On the Draft Bill Submitted by the Federal Ministry of Justice
Based on a resolution adopted by the German Council for Private International Law, the German Federal Ministry of Justice and Consumer Protection has submitted a bill to amend the Introductory Act to the German Civil Code (EGBGB) in the to date uncodified area of agency in private international law. This paper provides an overview of the proposed Art. 8 EGBGB and identifies questions of interpretation as well as remaining gaps. The draft provision applies to agents who were authorized by the principal, i.e. neither to statutory agents nor to representatives under company law. The proposal strengthens party autonomy by allowing a choice of law. Absent a choice of law, the applicable law is determined by objective criteria depending on the type of agent. The respective connecting factors, such as the agent’s or principal’s habitual residence, require perceptibility for the third party. If these requirements are not met, the applicable law residually is determined by the identifiable place of the agent’s acts or by the principal’s habitual residence. For the most part, the proposal can be characterized as a restatement of previous case law and academic writing.

H. Roth: Rule and exceptions regarding the review of the European Order of Payment in exceptional cases according to art.20 par. 2 of Reg. (EC) 1896/2006
According to Art. 20 para. 2 of Reg. (EC) 1896/2006, the European Order of Payment can be reviewed in exceptional cases. This additional legal remedy is only applicable in exceptional cases such as collusion or other malicious use of process. It is not sufficient that the defendant would have been able to detect misrepresentations by the claimant.

M. Pika/M.-P. Weller: Private Divorces and European Private International Law
Whilst substantive German family law requires a divorce to be declared in court, the instant case addresses the effect of a private divorce previously undertaken in Latakia (Arabic Republic of Syria) under Syrian law. Although, from a German perspective, the Syrian Sharia Court’s holding has been merely declaratory, the European Court of Justice considered its effect before German courts to be a matter of recognition. Accordingly, it rejected the admissibility of the questions referred to the Court concerning the Rome III Regulation. This ruling indicates the unexpected albeit preferable obiter dictum that the Brussels II bis Regulation applies on declaratory decisions concerning private divorces issued by Member States’ authorities. Subsequently, the Higher Regional Court Munich initiated a further, almost identical preliminary ruling concerning the Rome III Regulation. However, the key difference is that it now considered the Regulation to be adopted into national law.

A. Spickhoff: Fraudulent Inducements to Contract in the System of Jurisdiction – Classification of (contractual or legal) basis of claims and accessory jurisdiction
Manipulation of mileage and concealment of accidental damage belong to the classics of car law and indicate a fraud. But is it possible to qualify a fraudulent misrepresentation in this context as a question of tort with the meaning of art. 7 no. 2 Brussels I Regulation (recast)? German courts deny that with respect to decisions of the European Court of Justice. The author criticizes this rejection.

K. Siehr: In the Labyrinth of European Private International Law. Recognition and Enforcement of a Foreign Decision on Parental Responsibility without Appointment of a Guardian of the Child Abroad
A Hungarian woman and a German man got married. In 2010 a child was born. Two years later the marriage broke down and divorce proceedings were instituted by the wife in Hungary. The couple signed an agreement according to which the child should live with the mother and the father had visitation rights until the final divorce decree had been handed down and the right of custody had to be determined by the court. The father wrongfully retained the child in Germany after having exercised his visitation rights. The mother turned to a court in Hungary which, by provisional measures, decided that rights of custody should be exclusively exercised by the mother and the father had to return the child to Hungary. German courts of three instances recognized and enforced the Hungarian decree to return the child according to Art. 23 and 31 (2) Brussels IIbis-Regulation. The Bundesgerichtshof (BGH) as the final instance decided that the Hungarian court had jurisdiction under Art. 8–14 Brussels IIbis-Regulation and did not apply national remedies under Art. 20 Brussels IIbis-Regulation. In German law, the hearing of the child was neither necessary nor possible and therefore the Hungarian return order did not violate German public policy under Art. 23 (a) or (b) Brussels IIbis-Regulation.

H. Dörner: Better too late than never – The classification of § 1371 Sect. 1 German Civil Code as relating to matrimonial property in German and European Private International Law
After more than 40 years of discussion the German Federal Supreme Court finally (and rightly so) has classified § 1371 Sect. 1 of the German Civil Code as relating to matrimonial property. However, the judgment came too late as the European Succession Regulation No 650/2012 OJ 2012 L 201/07 started to apply on 17 August 2015 thus reopening the question of classification in a new context. The author argues that a matrimonial property classification of § 1371 Sect. 1 German Civil Code under European rules is still appropriate. He discusses two problems of assimilation resulting from such a classification considering how the instrument of assimilation has to be handled after the regulation came into force. Furthermore, he points out that a matrimonial property classification creates a set of new problems which have to be solved in the near future (e.g. documentation of the surviving spouse’s share in the European Certificate of Succession, application of different matrimonial property regimes depending of the Member state in question).

H. Buxbaum: RICO’s Extraterritorial Application: RJR Nabisco, Inc. v. European Community
In 2000, the European Community filed a lawsuit against RJR Nabisco (RJR) in U.S. federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). After more than fifteen years and a number of intermediate judicial decisions, the litigation came to its likely close in 2016 with the U.S. Supreme Court’s ruling in RJR Nabisco, Inc. v. European Community. The Court held that RICO’s private cause of action does not extend to claims based on injuries suffered outside the United States, denying the European Community any recovery. The case was the third in recent years in which the Supreme Court applied the “presumption against extraterritoriality,” a tool of statutory interpretation, to determine the geographic reach of a U.S. federal law. Together, these opinions have effected a shift in the Court’s jurisprudence toward more expansive application of the presumption – a shift whose effect is to constrain quite significantly the application of U.S. regulatory law in cross-border cases. The Court’s opinion in RJR proceeds in two parts. The first addresses the geographic scope of RICO’s substantive provisions, analyzing whether the statute’s prohibition of certain forms of conduct applies to acts occurring outside the United States. The second addresses the private cause of action created by the statute, asking whether it permits a plaintiff to recover compensation for injury suffered outside the United States. After beginning with a brief overview of the lawsuit, this essay discusses each of these parts in turn.

T. Lutzi: Special Jurisdiction in Matters Relating to Individual Contracts of Employment and Tort for Cases of Unlawful Enticement of Customers
A claim brought against two former employees, who had allegedly misappropriated customer data of the claimant, and against a competitor, who had allegedly used said data to entice some of the claimant’s customers, provided the Austrian Oberster Gerichtshof with an opportunity to interpret the rules on special jurisdiction for matters relating to individual contracts of employment in Art. 18–21 of the Brussels I Regulation (Art. 20–23 of the recast) and for matters relating to tort in Art. 5 No. 3 of the Brussels I Regulation (Art. 7 (2) of the recast). Regarding the former, the court defined the scope of Art. 18–21 by applying the formula developed by the European Court of Justice in Brogsitter concerning the distinction between Art. 5 No. 1 and 3 (Art. 7 (1) and (2) of the recast); regarding the latter, the court allowed the claim to be brought at the claimant’s seat as this was the place where their capacity to do business was impaired. Both decisions should be welcomed.

The University of Messina and ILSA, the International Law Students Association, organise a series of seminars on current problems of international law. Two seminars will be devoted to private international law issues. They are scheduled to take place on 26 April 2017 (Marcella Distefano will address surrogate motherhood) and on 11 May 2017 (Livio Scaffidi will speak of registered partnerships). See here for more information.

L’Università di Messina organizza assieme a ILSA, la International Law Students Association, un ciclo di seminari dedicati a questioni attuali del diritto internazionale. Due seminari riguardano tematiche internazionalprivatistiche e sono programmati rispettivamente per il 26 aprile 2017 (Marcella Distefano parlerà di maternità surrogata) e per l’11 maggio 2017 (Livio Scaffidi si occuperà di unioni civili). Maggiori informazioni a questo indirizzo.

 

The Special Commission convened by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare a preliminary draft convention on the recognition and enforcement of judgments in civil and commercial matters will meet between 16 and 24 February 2017. Discussions will be based on the draft text that resulted from the first meeting, held in 2016. The agenda of the meeting is available here. For further information on the Judgments Project, see here.

La Commissione speciale istituita dal Consiglio sugli affari generali della Conferenza dell’Aja di diritto internazionale privato per predisporre un progetto di convenzione sul riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale si riunirà fra il 16 e il 24 febbraio 2017. La base dei lavori è rappresentata dal testo sortito dal primo incontro della Commissione, svoltosi nel 2016. L’ordine del giorno dell’incontro si trova qui. Ulteriori informazioni sul Judgments Project a questo indirizzo.

Avis au titre de l'article 218, paragraphe 11, TFUE
Droit institutionnel
Le traité de Marrakech sur l’accès des déficients visuels aux œuvres publiées peut être conclu par l’Union seule

Professor Dr. Giesela Rühl, University of Jena, is seeking to fill two positions as PhD students/research assistants (Wissenschaftliche Mitarbeiter) as of 1 May/1 June 2017.

Successful candidates should hold a first law degree (ideally, but not necessarily: First German State Examination) ranking in the top 10-15 % and be interested in the international dimensions of private law, in particular private international and/or European private law. A good command of German and English (spoken and written) is expected. Moot Court experience is very welcome.

The positions are half-time (50%) and will be paid according to salary scale E-13 TV-L. They will initially  run for three years, with an option to renew. Responsibilities include the support of Professor Rühl in research and teaching as well a independent teaching obligations (2 hours per week during term time).

The University of Jena is an equal opportunity employer. Applications from qualified women are particularly welcome. Candidates with disabilities will b given preference in case of equal qualification.

If you are interested in this position, please send your application (cover letter, cv, relevant documents, notably copy of law degree) to Regina Franzl (r.franzl@recht.uni-jena.de) by March 1, 2017.

More detailed information is available here.

Le 10 février 2017, le Conseil constitutionnel a déclaré contraire à la Constitution l’article 421-2-5-2 du code pénal.

en lire plus

Le 27 janvier 2017, à l’occasion de sa conférence annuelle, la Cour européenne des droits de l’homme (CEDH) a présenté son rapport d’activité et son analyse statistique de l’année 2016 dévoilant entre autres, une augmentation du nombre d’affaires entrantes laissant présager un surcroît de travail pour l’année à venir.

en lire plus

Le principe non bis in idem n’interdit pas le prononcé de sanctions disciplinaires parallèlement aux sanctions infligées par le juge répressif, en l’occurrence, s’agissant d’une personne détenue, d’un placement à l’isolement et d’une perte de crédit de réduction de peine, et d’une condamnation à de l’emprisonnement du chef d’outrage à personne dépositaire de l’autorité publique, pour des faits commis à l’encontre d’un surveillant pénitentiaire.

en lire plus

Many thanks Michael Verhaeghe  (whom I have the pleasure with jointly to be representing a client) for alerting me to Lodi Trading in which the Belgian Supreme Court applied (and distinguished) Kolassa. Lodi Trading is registered in The Netherlands and seemingly had been duped into transferring funds to a gang of fraudsters.  As always, the judgment is very very scant on factual reference, and I have not been able to find the Court of Appeals’ judgement: if anyone can: Court of Appeal Gent, 8 December 2015.

Like the CJEU itself did clearly in Universal Music, the Hof van Cassatie distinguished Kolassa (although it does not refer to Universal Music in this part of the judgment) by insisting there be circumstances specific to the case, over and above the simple presence of a bank account, which point to the damage occurring in that State.

In Universal Music the CJEU had emphasised the need for case-specific facts for bank accounts to be a relevant factor in determining jurisdiction, by holding that ‘it is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.’ (emphasis added).

What seems (but again: see the joint caveat of the Supreme Court’s judgment being scant and the Court of Appeal’s judgment being untraceable) to be specific to this case is that the Court of Appeal had held in favour of the location of the bank account of recipient of the funds being locus damni, given that ‘internal law’ (by which I take it reference is made to Belgian, not Dutch law) determines that the time of payment is determined by the moment of accreditation of the funds to the beneficiary’s account: not (the alternative reading; but again I am assuming for the judgment’s 10 brief paras do invite speculation) the time of the funds leaving the account holder’s account.

It could well be therefore that the Supreme Court is rebuking the Court of Appeal for having Belgian law enter the equation, given the need for autonomous interpretation of European civil procedure. But I am not entirely sure.

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 2.2.11.2, 2.2.11.2.7

Les autorités chargées d’exécuter un mandat d’arrêt européen doivent, en cas de force majeure avérée, fixer une troisième date de remise lorsque les deux premières tentatives de remise ont échoué en raison de la résistance opposée par la personne recherchée.

en lire plus

Le 19 janvier 2017, la Commission européenne a présenté deux rapports de suivi relatifs aux accords de partenariat conclus avec les États-Unis en matière de lutte contre le terrorisme.

en lire plus

The new issue of the Revista Española de Derecho Internacional, REDI, has just been released both in digital and printed form. It includes the following PIL articles:

Santiago Álvarez González, What Conflict Rule Should Be Adopted To Determine The Law Applicable To Preliminary Questions On Which The Succession May Depend?

Abstract: This paper deals with the classic topic of «incidental or preliminary question» in the conflicts of laws. The start point is the question nº 13 of the Green Paper Succession and wills. There is no consensus on the answer to the incidental question- which is understandable, as this is indeed the begin of every theoretical problem. However, there is no  consensus either around the concept of incidental question. And this is something that precludes any proper discussion. As a way out the author proposes to reject the theory (rectius: the theories) of the preliminary question and to adopt a case by case approach. This ad hoc approach is based, among other, upon the multiple rules and exceptions (many of them very reasonable) proposed by authors, especially in German doctrine. In some cases «recognition» (and not conflicts of laws) can be the most appropriate approach; in others any one of the classic proposals (…) will provide with the better answer, depending on the circumstances and the most preponderant interest involved; it is also possible to avoid the problem through a proper «characterization» of the situation. The main shortcoming of this proposal – the fact that it puts legal certainty at a risk- is a fully manageable one; and in any case it is a proposal not weaker than the current heterogeneous scenario.

Rafael Arenas García, The European Legislator And The Private International Law Of Companies In The EU

Abstract: Luxembourg Court’s case law has shown that the freedom of establishment granted by the EU law affects not only the substantive company law of the Member States, but also the conflict of laws rules in matters relating to companies. In the absence of secondary legislation relating to the law governing companies in the EU, and in order to improve legal certainty it would be desirable that the European legislator draw up rules aimed to determine which will be the lex societatis governing companies incorporated in EU countries. This regulation should also concretize the matters ruled by this lex societatis and the change of the lex societatis as a result of the transfer of the registered office of the company. Among the subjects covered by this regulation it should necessarily be included the company’s legal capacity and the directors’ liability. It would be also necessary to delimitate the scope of the specific corporate regulation and that relating with insolvency proceedings.

Pedro de Miguel Asensio, Jurisdiction And Applicable Law In The New Eu General Data Protection Regulation

Abstract: The new EU General Data Protection Regulation brings about a deep transformation of the previous legal framework based on the mere approximation of laws. As regards the cross-border dimension, it amends the territorial scope of application of EU data protection law to clarify that it covers the processing of data of subjects who are in the Union by a controller or a processor not established in the Union where the processing activities are related to offering goods or services to such data subjects. This article discusses the rationale that supports the new approach and the relevant criteria for its interpretation. Unlike the previous regime, the provisions of the Regulation on its territorial scope do not determine the competent national supervisory authority. The Regulation includes specific provisions on the distribution of competences between the supervisory authorities of the Member States with regard to cross-border situations. Such rules play also an important role concerning the right to a judicial remedy against a supervisory authority. Additionally, new special jurisdiction rules are established concerning private claims by data subjects against a controller or processor as a result of the infringement of the rights granted to them by the Regulation. Such rules are of special significance with respect to the right to compensation where a damage results from an infringement of the Data Protection Regulation. One of the main objectives of this article is to clarify the issues raised by the relationship of the new special rules on jurisdiction and related proceedings with other provisions, such as those of the Brussels I (Recast) Regulation. The shortcomings of EU conflict rules in the area of private enforcement of data protection law and the interplay between the new Regulation and the general EU framework on conflict of laws are also discussed.

Fernando Esteban de la Rosa, Consumer Complaints’ Regime In The New European Law On Alternative And Online Consumer Dispute Resolution

Abstract: The global nature of online consumer trade has given rise to new strategies guaranteeing consumer rights, such as enabling online dispute resolution. The new European law, namely Directive 2013/11/EU and Regulation 524/2013/EU, has boosted regional acceptance of this trend. The present study analyses the impact of the new European legislation on the system of private international law. The study reveals, on the one hand, the need to make systematic adjustments in order to achieve a spatial scope of application for the principle of liberty according with the EU legislator´s intention, to devoid the interpretation excluding the reference to foreign consumer arbitration or to integrate some regulatory gaps inherent to the newly established system. On the other hand, it focuses on the need to verify whether the current regime complies with the requirements derived from the recognition of the right proclaimed by art. 47 ECFR and art. 19 TEU. In this perspective the study contains de lege ferenda solutions intertwined with the peculiarities of the online management of cross-border claims via the European platform.

Elena Rodríguez Pineau, Regulation Brussels IIbis Recast: Reflections On The Role Of European Private International Law

Abstract: Ten years after the Regulation (EC) 2201/2003 entered into force, and bearing in mind the jurisprudence of the European Court of Justice on the Regulation, the Commission believes that the time is ripe for a Regulation recast. Thus, in 2016 the Commission has presented its proposal. The text identifies six basic problems that are deemed to be in need of a thorough revision: international child abduction, the disposal of exequatur, the enforcement of foreign decisions, cooperation between authorities, cross-border placement of children and the hearing of the child. As the proposal highlights, the recast would aim at better protecting the best interest of the child. However, many of the new rules included entail direct harmonisation of procedural rules of Member States, which will result in a deeper integration that will foster the principles of mutual recognition and mutual trust among Member States. This article deals with the novelties of the Brussels II recast (both as to the six items previously identified as well as other new elements of the Regulation) and tackles the tension between the protection of the best interest of the child and the reinforcement of the principle of mutual recognition in the European area of civil justice.

 

All papers are in Spanish. The whole summary (thus Public International Law papers, contributions to the Foro and a selection of recently published books with a critical comment) can be downloaded here.

Guest post by Maryam Salehijam: There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligation under an ADR agreement?” To answer this question, the research is divided into two stages, the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions* with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.   The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information.  Accordingly, the information provided will only serve scientific purposes.    To complete the questionnaire, please click on the following link:http://lawsurv.ugent.be/limesurvey/index.php/678366?lang=en (closing date 29th of April 2017).   Thank you for taking this request into consideration.   *Austria, Australia, England & Wales, Germany, Singapore, the Netherlands, and the United States

Pourvoi c/ Cour d'appel de Douai, chambre de l'instruction, 26 octobre 2016

Pourvoi c/ Cour d'appel de Paris, pôle 7, 1ere chambre de l'instruction, 9 décembre 2016

Pourvoi c/ Cour d'appel de Versailles, chambre de l'instruction, 10e chambre, section B, 13 janvier 2017