On 4-6 April 2018 the Loyola University Andalusia in Seville (Spain) will host a conference to celebrate the 60th birthday of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Jointly organized by The United Nations Commission for International Trade Law (UNCITRAL), the Loyola University Andalusia, the University of Zaragoza and the Spanish Club of Arbitration (CEA) the conference analyses key issues and future challenges of the Convention and provides a unique opportunity to meet with professionals and academics from around the world.

Registration is now open via the conference website.

The program is available here and here.

 

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For a limited time (one week), the Elgar Encyclopedia of Private International Law is accessible for free online. Check it out. And then ask your library to buy it.

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As reported on this blog, the French Cour de Cassation decided last year that the réserve héréditaire, the portion of the decedent’s estate that is reserved for the legal heirs, is not part of the French ordre public with regard to the Succession Regulation. Now, the Société de Législation Comparée is organizing a conference in Paris on March 15,  to discuss the consequences from the decision. Under the Presidency of Dominique Hascher, there will be presentations by Andrea Bonomi, Professor in Lausanne, and Delphine Vincent, notary in Paris. Hugues Fulchiron, Professor in Lyon, will comment. Registration required. Another website here.

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SLS Conflict of Laws Section: Call for Papers and Panels for 2018 SLS Annual Conference at Queen Mary University of London   

This is a call for papers and panels for the Conflict of Laws section of the 2018 SLS Annual Conference to be held at Queen Mary University of London from Tuesday 4th September – Friday 7th September.  This year’s theme is ‘Law in Troubled Times’.

This section is new to the SLS Annual Conference, having been introduced as a trial section last year.

The Conflict of Laws section will meet in the second half of the conference on Thursday 6th and Friday 7th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.

If you are interested in delivering a paper, please submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.   

If you are also interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Monday 26th March.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link –  https://app.oxfordabstracts.com/stages/488/submission – and following the instructions (select ‘Track’ for the relevant subject section). If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.

We should also note that the SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.  To be eligible:

  • speakers must be fully paid-up members of the SLS;
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11.59pm UK time on Monday 27th August; and
  • papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by the end of June in order to secure their place within the programme, though please do let me/us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in London.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford

Dr Lorna Gillies, University of Strathclyde

Dr Máire Ní Shúilleabháin, University College Dublin (Co-Conveners)

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New resource on New Zealand conflict of laws

The University of Otago recently set up an online platform dedicated to the conflict of laws in New Zealand: www.otago.ac.nz/conflicts/index.html

The platform includes (1) a reference database of New Zealand scholarship on the conflict of laws, originally created by Professor Elsabe Schoeman at Auckland University, (2) a blog, and (3) links to relevant sources and materials.

Feedback and suggestions on the site are much appreciated. In particular, if you are aware of any relevant materials that are currently missing from the database, I would be very grateful if you could let me know.

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The fourth issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 developed by the Hague Conference on Private International Law, the interpretation of Article 9(3) of the Rome I Regulation by the Court of Justice of the European Union in the case Nikiforidis v. Republik Griechenland, the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations, and new developments in China’s recognition and enforcement of foreign judgments.

Matthijs ten Wolde & Kees de Visser, ‘Editorial’, p. 725-726.

Akinwumi Ogunranti, ‘The Hague Principles – a new dawn for developing countries?’, 727-746

This paper focuses on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 (hereafter: Principles) developed by the Hague Conference on Private International Law. It makes two claims: that Article 2(4) of the Principles which permits parties to make an unrelated choice of law in international contracts, without generally protecting weaker parties, may not be favourably received by developing countries. Second, that Article 3 of the Principles on non-state law may also not be viewed favourably by developing countries because such provisions are always seen with distrust. In effect, this paper examines the likely reactions of developing countries to these pivotal provisions of the Principles. It then asks the question of whether a new dawn has arrived in private international legislations relating to choice of law or whether developing countries should be charting roads that lead to more places than just The Hague.

A.E. Oderkerk, ‘Buitenlandse voorrangsregels in de context van de Griekse crisis: geen rol voor het unierechtelijk beginsel van loyale samenwerking’, p. 747-758

In its ruling of 18 October 2016, the Court of Justice of the European Union (CJEU) answers a number of questions related to the interpretation of Article 9(3) of the Rome I Regulation, two of which confirm the current legal doctrine on this matter. Firstly, it is confirmed that Article 9 should be interpreted restrictively; no other overriding mandatory rules than those of the forum State or the State where the obligations in the agreement are (to be) fulfilled can be applied. Secondly, it is acknowledged that a national court may take into account other overriding mandatory rules as facts in so far as this is in accordance with the lex causae. In this ruling the Court departs from the doctrine with regard to the temporal scope of the Regulation, holding that the phrase ‘the conclusion of the agreement’ in Article 28 must be interpreted autonomously. The Court also clarifies under which circumstances a long-term contract concluded before 17 December 2009 may fall within the temporal scope of the Regulation. Finally, it is of interest that the Court takes the position that the principle of loyal cooperation has no influence on the (strict) interpretation of Article 9(3).

Just van der Hoeven, ‘Zachte conclusies over de betekenis van een harde Brexit voor het internationaal personen- en familierecht’, p. 759-771

This article gives an overview of the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations. It examines the applicability of various international instruments in these areas, and gives a brief answer to the question how the current EU regulations differ from these international instruments.

Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’, p. 772-789

In the case of Kolmar Group AG v. Jiangsu Textile Co. Ltd. (the Kolmar case), a Chinese court has for the first time recognized and enforced a foreign civil judgment based on reciprocity. This article regards this case as a turning point of reciprocity in China’s recognition and enforcement of foreign judgments. Before 2016, the reliance on treaty-based and factual reciprocity led to some defects in China’s judicial practice, which could be attributed to the strict standards of reciprocity and deficient judicial interpretations. Through the Belt and Road initiative, China is seeking to improve international transactions between China and foreign countries – including some EU countries. In line with this development, the Chinese Supreme People’s Court seems to be transforming the strict criteria of reciprocity, adopting presumed reciprocity in its judicial practice. This article argues that execution of the Belt and Road initiative, establishing an efficient court reporting system and participating in international conventions are essential to China’s judicial reform.

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Professor Jen Daskal writes on Just Security about a potential legislative solution to the Microsoft Ireland case pending in the U.S. Supreme Court, which presents the question of whether a U.S. warrant requires Microsoft to hand over a user’s data that Microsoft stores in Ireland:

“A bipartisan group of Senators today introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act—a bill that moots the pending Supreme Court Microsoft Ireland case and authorizes the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the Microsoft Ireland case. It also has the support of many other tech companies.

As it should.

…”

Read the full post here.

For Professor Daskal’s thoughtful analysis of the conflicts of laws issues presented in the Microsoft case and their relationship to private international law issues, see her earlier analysis here.

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On Friday, 13 April 2018, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. As a result, it is intended to create a database of national case law. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen), Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, such as Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Partcipation is free of charge, but requires a registration. For further information about the program and the process of registration, please click here.

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This post has been prepared by

Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)

In judgment of 25 October 2017 in case I Cpg 1084/2016 (ECLI:SI:VSLJ:2017:I.CPG.1084.2016) published on 31 January 2018 the Slovenian Appellate Court ruled on a question of implied consent to application of Slovenian law.

Unfortunately the underlying facts are not described with the necessary precision. It would appear that there was a three-person contractual chain between an Austrian, an Italian and a Slovenian commercial company. Apparently the Italian company was the seller, the roles of both the Austrian and Slovenian company are not very clearly described. The underlying transaction that led to the dispute was a contract for the sale of goods concluded under the CISG. The ruling does not state where the seller had the habitual residence, yet the condemnation to perform the payment can only be construed in such a way that the Italian plaintiff was the seller.

The court of first instance condemned the defendant (a Slovenian commercial company) to payment of the sum of 52.497,28 EUR to the Italian claimant (Italian commercial company) and dismissed the Slovenian defendant’s defense of set-off (exceptio compensationis) in the sum of 50.000,00 EUR.

The condemnation was based upon a sales contract for goods concluded under the application of the CISG. The Slovenian defendant contended that the Italian claimant did not sign the double order / mandate addressed to the Austrian third person (named the client or the orderer) who had been instructed to perform the payment to the Italian company. The Austrian client later withheld the performance of payment due to a non signed double order / mandate (double order/mandate is a figure where a principal gives the first mandate to the agent to perform an obligation to a third person (recipient) and the second mandate to the third person (recipient) to accept the performance of such an obligation, see Art. 1035 Slovenian Code of Obligations: Through an instruction one person, the principal, authorizes a second person, the agent, to perform an obligation for the latter’s account to a certain third person, the recipient (the beneficiary), and authorizes the third person to accept performance in the third person’s name. The Slovenian legislative provision corresponds to § 1400 Austrian ABGB, § 784 German BGB and Art. 468 Swiss Code of Obligations). The defendant claimed in his defense of set-off that there was an extra-contractual obligation (a delict) due to lack of performance of the Austrian agent that was caused by the Italian company.

One of the pleas in appeal was that Italian and in the alternative the Austrian substantive law should be applied for assessing the existence of the obligation to be set-off. The Court of Appeal dismissed such a plea. The Slovenian defendant alleged an allegedly mature and liquid non-contractual obligation to be set-off. The assessment of facts narrated by the Slovenian company i.e. the damages set-off due to non signature of an order given to the Austrian company shows that there is in essence a defense of breach of the claimant’s obligation in accepting the performance based on the same facts as the claimant’s claim to payment. The Appellate Court expressly avoided the characterization of the said breached obligation as contractual or as non-contractual. There was only a precisions that the facts underlying both the contractual obligation to perform a payment and the allegedly breached obligation are identical.

According to the Appellate Court in Ljubljana the court of first instance found that there was an implied consent to apply the Slovenian law, neither party contested the application of Slovenian law in the first and also in the appellate instance. The law applicable to the obligation that was claimed in set – off is therefore Slovenian law. Even if such an obligation were non – contractual, Slovenian law would have to be applied under Art. 4(1) and (3) in connection with Art. 15 Regulation (EC) No 864/2007 (Rome II).

The ruling does not contain any explicit connecting factor. The issue is not Art. 17 Rome I Regulation (Regulation (EC) No 593/2008). One can assume that under Art. 1(1) CISG the applicable law is the CISG as Austria, Italy and Slovenia are contracting parties to the said UN convention. However, the interesting part is the reference to the implied consent to the application Slovenian substantive law. Under Art. 4(1)(a) Rome I Regulation (Regulation (EC) No 593/2008) “a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence”. This should prima facie be the Italian law, as the Italian company applied for payment after having performed the specific performance under the sales contract. However, not contesting the application of Slovenian substantive law in judicial proceedings in first and also in the appellate instance was then construed as “implied consent” to Slovenian substantive law (Art. 3(2) Regulation Rome I). Seen in pragmatic perspective, in order to avoid a uneasy modus vivendi or fine tuning of Art. 3 and 15 of the Regulation Rome II with Art. 17 Regulation Rome I the Slovenian Appellate Court preferred to refer to Slovenian law even if under conditions that do not easily fit in Art. 3(2) and 10 Rome I Regulation.

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On February 7th, a workshop on the EU Matrimonial and Partnership Property Regulations will take place at the University of Strasbourg. Coordinated by Prof. Estelle Naudin and Delphine Porcheron, the workshop will explore the strategies of anticipation provided by the new regulations and some of the practical issues raised by French-German situations.

Speakers include :

  • Richard Crône, Notary in Paris, Member of the Institut Notarial Europe et International (INEI)
  • Alain Devers, University of Lyon III
  • Claire Farge, Lawyer, Member of the Legal Committee of FNDP
  • Michel Farge, University of Grenoble-Alpes
  • Eric Fongaro, University of Bordeaux
  • Estelle Gallant, University Paris I
  • Estelle Naudin, University of Strasbourg
  • Delphine Porcheron, University of Strasbourg

Click here to access the full program.

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