Professor Christopher Kuner, Honorary Fellow of the Centre for European Legal Studies, University of Cambridge, and Honorary Professor at the University of Copenhagen
Dr Cristian Oro Martinez, Max Planck Institute Luxembourg – discussant15:00 The CJEU’s Decision on the Data Retention Directive
Professor Martin Nettesheim, University of Tübingen
Dr Georgios Dimitropoulos, Max Planck Institute Luxembourg – discussant16:30 The CJEU’s Decision in eDate Advertising and Its Implementation by National Courts
Professor Burkhard Hess, Director, Max Planck Institute Luxembourg
Professor Patrick Kinsch, University of Luxembourg – discussant17:15 The 2010 U.S. SPEECH Act and the U.K. Reaction of 2013
Dr Cristina M. Mariottini, Max Planck Institute Luxembourg
Professor David P. Stewart, Georgetown University – discussant18:00 Discussion For further information and to register, please click here. Note: The following day, the Institute will host the first meeting of the ILA Committee on the Protection of Privacy in Private International and Procedural Law (this latter event is by invitation only).
The paper looks at the powers of the States to unilaterally modify their debt obligations in the context of sovereign debt restructurings. Drawing on the national case law on the unilateral modifications of domestic debt, the paper argues that the States entering into sovereign bonds act in private capacity and cannot modify the private obligations in a unilateral manner. To support the argument, paper relies on the case law from the US, the Russian Federation and England. The paper also considers the powers of the State to modify private-to-private debt obligations and the debt entered into by quasi-public entities.The full paper is available here.
The last issue of La Ley. Unión Europea (July 2014) has also been released this month. Prof. P. de Miguel Asensio (Universidad Complutense of Madrid) is the author of the first contribution, entitled "El tratamiento de datos personales por buscadores de Internet tras la sentencia Google Spain del Tribunal de Justicia".
Summary: In the light of the most recent case law of the ECJ, the territorial scope of application of the EU data protection law is discussed, with a special focus on the applicability of EU legislation to Google Inc., as search engine provider. Additionally, the position of the undertaking managing a search engine as data controller, the obligations of the search engine in this respect as well the relationship with the position of the pusblishers of websites are addressed. Finally, the scope of the right of erasure and its consequences on the activities of search engines are also discussed.
Directly related to Prof. de Miguel's paper is Dr. M. López García's "Derecho a la información y derecho al olvido al internet", published a little bit later (under Tribuna) in the same issue.
Summary: Internet is major change in society. Everything we do is published in the network. If you’re not on the Internet doesn’t exist. But it has important legal consequences especially regarding the right to privacy and protection of personal data, specifically the right to control the privacy of each person and decide that we want you to know or want you to forget about us. This problem has a different solution in each country. Common response is required for legal certainty.
The second main article, written by Prof. J. García López (also from the Universidad Complutense, Madrid) and entitled "El acuerdo de asociación transatlántico sobre comercio e inversiones: aproximación desde el Derecho del comercio internacional", focuses on the TTIP:
Summary: The USA and the EU started one year ago their negotiations for the conclusion of the Transatlantic Trade and Investment Partnership (TTIP). In this paper we propose an approach from the point of view of International Trade Law. The TTIP will have to satisfy the conditions of both art XXIV GATT and art V Gats. This will produce the abolition of tariff and non-tariff barriers for the transatlantic trade, inducing a well-known effect of trade creation. On the other side, third countries like Mexico and Turkey will suffer as a consequence of the trade diversion caused by the rules of origin of the TTIP. To conclude, we will make reference to the new areas of negotiation beyond goods and services.
A comment on the ECJ decision to the aff. C-478/2012, Maletic, is provided by J.I. Paredes Pérez (Centro Europeo del Consumidor en España; University of Alcalá)
Summary: The subject of the controversy of the judgment places us within the territorial scope of protection forums included in Regulation No. 44/2001 for contracts held by consumers in order to assess the assumptions of internationality that justify their application. In this context, the judgment is of great significance, since in the appreciation of the international element of the litigious situation, the Court of Justice of the European Union does not use so much criteria of spatial type, characteristic of private international law as substantive criteria that arise from material logic. In particular, it appreciates the international nature of a consumption contract apparently domestic, taking into account intrinsic aspects of the contractual relationship, as it turns out the root cause of the matter related to connected contracts.
A selection of European case law and some news of juridical -but also of general- interest are delivered in the final part of the journal.
Vol. VII (2014, 2) of the Spanish journal Arbitraje. Revista de Arbitraje Comercial y de Inversiones has just been released. The following contributions are to be found therein:Under the heading Estudios
Franco FERRARI: Forum shopping: la necesidad de una definición amplia y neutra
Ana FERNÁNDEZ PÉREZ: Los contenciosos arbitrales contra España al amparo del Tratado sobre la Carta de la Energía y la necesaria defensa del Estado.As Varia
Miguel GÓMEZ JENE: Hacia un estándar internacional de responsabilidad del árbitro
Marco DE BENITO LLOPIS–LLOMBART: El arbitraje y la acción
Simon P. CAMILLERI: Anti–suit injuctions en el régimen de Bruselas I: ¿una cuestión de principios?
Álvaro SORIANO HINOJOSA: El Estado y demás personas jurídicas de Derecho público ante el arbitraje internacional
José Pablo SALA MERCADO: La actualidad de la inversión extranjera en Argentina. Una realidad que despierta inseguridad.
As usual, the issue provides as well with the notice of relevant recently adopted legal texts, case law (sometimes commented) of several jurisdictions, reviews of books and other journals, and of events.
- The European Court System
- International Dimensions of European Procedural Law
- International Commercial Arbitration
May the consumer in accordance with Art. 16(1) Brussels I-Regulation sue in the state where he is domiciled if the contract that is the immediate basis for the claim was not concluded under the conditions set out in Art. 15(1) lit. c) Brussels I Regulation, but serves to ensure the economic success of another contract concluded between the same parties under the conditions set out in Art. 15(1) lit. c) Brussels I-Regulation?The question arises in a case based on the following facts: the claimant, a consumer domiciled in Germany, entered into a contract with the defendant, a Spanish real estate agency. On the basis of this contract the defendant arranged the conclusion of an option contract between the claimant and a German construction company relating to the purchase of a yet to be built apartment in a Spanish holiday complex. This option contract eventually led to the conclusion of a sales contract between the consumer and the construction company. After payment of the first two installments under the sales contract, the construction company ran into financial difficulties. This, in turn, jeopardized the completion of the holiday complex. The defendant, therefore, turned to the claimant and offered to look into the matter. The claimant happily accepted - and travelled to Spain to sign a contract to that effect with the defendant. In the following months the claimant made several payments to the defendant under the second contract. Then the relationship fell apart. The claimant cancelled the second contract and filed a law suit in Germany asking the defendant to refund all payments made under that contract. The court of first and second instance declined to hear the case for lack of jurisdiction arguing that the Spanish real estate agency - regarding the second contract and the service offered under that contract - had not directed its activities towards Germany. The Federal Supreme Court, however, was not so sure and decided to refer the above question to the CJEU. How the CJEU will decide, remains to be seen. Chances are that the highest European court will continue its extremely consumer-friendly interpretation of Art. 15(1) lit. c) (cf. CJEU, C-190/11 - Mühlleitner, CJEU, C-218-12, Emrek) and allow consumers to sue at home even if only an economically related, but not the immediate contract was concluded under the conditions set out in Art. 15(1) lit. c) Brussels I-Regulation. A narrow interpretation, however, would rather argue against application of Art. 15 et seq Brussels I-Regulation: Art. 15(1) lit. c) makes clear that the contract in dispute must fall into the scope of the professional's directed activities ("In matters relating to a contract concluded by a ... consumer ... jurisdiction shall be determined by this Section ... if ... (c) ... the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.") The irony of the case, however, is that the question referred to the CJEU by the German Federal Supreme court does not actually arise in the case at bar: according to the court's (undisputed) statement of facts the defendant, i.e. the Spanish real estate agency, turned to the consumer and offered his help when the German construction company ran into difficulties. The court doesn't say how the defendant turned to the claimant and how he offered his help. But there is little doubt that the consumer was sitting at home in Germany and was actively approached by the defendant. Therefore, the defendant clearly directed his activities towards the consumers habitual residence. And the contract that was eventually concluded clearly fell into the scope of these activities since it was the direct result of the defendant's efforts. That the consumer eventually travelled to Spain to conclude the contract doesn't hinder application of Art. 15 et seq Brussels I Regulation (cf. CJEU, C-190/11, Mühlleitner). But why keep things simple?