A few short articles on various aspects of private international law in family law have been published this week. They are:

James Copson (Withers LLP), Alain Berger (Berger Recordon & de Saugy, Geneva) and Alexandre Boiche (Cabinet Veronique Chaveau, Paris), "Cross-border Matrimonial Law" Family Law Journal (2006) No.60 October Pages 3-5. The abstract reads:

This, the second in a series of international articles, uses a case study involving an international couple who own properties in England, Switzerland and France and who are divorcing after a long marriage to explain how the choice of jurisdiction can effect the financial award made. Summarises the approach adopted in each jurisdiction to: (1) the division of assets, including the effect of prenuptial agreements; (2) applications for compensation for loss of the ability to share the other parties future income; (3) child support; and (4) taxation of awards. Outlines the position under European law to determining habitual residence and to the effect of competing proceedings.

Suzanne Kingston and Faye Fitzsimmons (Dawsons), "Miller and McFarlane – the international aspects" Family Law Journal  (2006) No.60 October Pages 16-18. The abstract reads:

This, the second of two articles considering the House of Lords judgment in Miller v Miller, discusses the potential for the decision to lead to an increase in forum shopping within the EU in divorce cases involving international couples with substantial assets. Uses a case study involving German nationals to compare the financial consequences of divorce proceedings commenced in England with those resulting from proceedings being issued in Germany. Considers the impact the proposed EU Regulation, known as Rome III, will have on choice of jurisdiction.

Keith Gordon (Atlas Chambers), "Jurisdiction jigsaw" Solicitors Journal (2006) Vol.150 No.41 Pages 1378,1380. The abstract reads:

Explains the importance of the law on domicile for applications made under the Inheritance (Provision for Family and Dependants) Act 1975 and other areas of the law. Considers the distinction between domicile of origin and domicile of choice, providing examples of a revived domicile of origin and the acquisition of a new domicile of choice. Notes the need to prove a permanent and indefinite intention to reside in a domicile of choice.

All of the articles can be found on Lawtel.

An interesting article discussing Opinion 1/03 where it has been held that "the conclusion of the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (…) falls entirely within the sphere of exclusive competence of the European Community" has been published in the German Law Journal Vol. 7 No. 8: Tristan Baumé: Competence of the Community to Conclude the New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters: Opinion 1/03 of 7 February 2006.

The full article can be viewed here.

Yoav Oestreicher (Bar Ilan University) has posted an article on the Social Science Research Network (SSRN) entitled, "Recognition and Enforcement of Foreign Intellectual Property Judgments: Analysis and Guidelines for a New International Convention". The abstract reads:

This dissertation attempts to analyze the reasons for the continuing failure of the international community to agree on a single international comprehensive instrument that regulates recognition and enforcement of foreign judgments, especially following the negotiations that took place at the Hague Conference on Private International Law until June 2005, by concentrating on intellectual property as a model. It is concluded that the continuing attempt to base the proposed instruments on a “mixed” or “double” convention model, thus combining the question of recognition and enforcement of the foreign judgment with the substantially complicated question of jurisdiction of the rendering court is unjustified. The inability to agree on the jurisdiction question due to economic, cultural and financial reasons resulted in the continuing inability to regulate this field.

The dissertation proposes a somewhat revolutionary minimalist solution to the problem, which is based on a “simple” convention model that promotes a “presumption of enforceability” rule with very broad exceptions such as public policy, due process, and jurisdiction. The proposed guidelines for a new international convention do not directly address the issue of jurisdiction, but rather indirectly, as an exception to the general rule of enforcement. By creating the convention within the framework of the TRIPs Agreement, it will enjoy some of the elements that are already contained therein. In the future, this model could be broadened in scope to also apply to other fields of law. Success of this proposed convention will bring stability and create confidence and trust among potential member countries, thus serving as the basis for a broader international solution.

The full article can be downloaded from here.

The United States Supreme Court is scheduled to hear argument on Monday, October 31, in a matter which again visits the basic question of when an American punitive damage award is unconstitutionally excessive.  In BMW of North America v. Gore, 517 U.S. 559 (1996), the Supreme Court first created constitutional limitations on punitive damages, requiring courts to weigh the reprehensibility of the defendant’s conduct, the relationship between the harm suffered by the victim and the amount of punitive damages, and the relationship between the size of the punitive damage award and civil or criminal penalties that could be imposed for the defendant’s conduct. Most recently, in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the Court prohibited consideration of wrongful conduct other than the harm to the individual victim in assessing punitive damages, and noted that few awards exceeding a single-digit ratio of punitive to compensatory damages would be constitutional, although there could be exceptions.  Now at issue in Philip Morris USA v. Williams is whether and how the Supreme Court's limitations in Gore and Campbell ought to apply to tortfeasors that engaged in what is deemed “extraordinarily reprehensible” conduct. 

Though not a traditional topic of private international law, this case is of obvious interest to international practitioners and private international law scholars, as American judgments abroad have long met significant opposition to recognition and enforcement abroad due to the incidence and size of punitive damage awards.

Interesting articles regarding the case and upcoming argument can be found here and here. The decision of the Oregon Supreme Court below can be found here. As always, we have provided links to both the Petitioner’s Brief on the Merits as well as Respondent’s Brief.  The published oral argument transcript is linked here.   

The American Branch's 2006 International Law Weekend 2006 will be held on Thursday-Saturday, October 26-28, 2006, at the Association of the Bar of the City of New York (42 West 44th St, New York, NY). The theme this year is "The Evolving World of International Law."  The panels on private international law focus on the following topics:

Enforcing Foreign Judgments and Awards: Worlds Apart? Friday October 27, 2006, 9:00 am – 10:30 am 

This panel will compare the recognition and enforcement of foreign judgments and international arbitration awards. It will also discuss the proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. In particular, this panel will explore whether the new Hague Convention, if adopted, would bridge the present gap between the enforcement of foreign judgments and international arbitration awards.

• Chair: Julie Bedard, Esq., Skadden, Arps, Slate, Meagher & Flom LLP
• Panelists: Prof. George A. Bermann, Jean Monnet Professor of EU law & Walter Gellhorn Professor of Law, Columbia University School of Law
• John Fellas, Esq., Partner Hughes Hubbard & Reed LLP
• John L. Gardiner, Esq., Partner, Arps, Slate, Meagher & Flom LLP

From Owusu to Parlatino: European Union and Latin American Challenges to Forum Non Conveniens Friday October 27, 2006, 10:45 am – 12:15 pm 

In 2005, the European Court of Justice, in Jackson v. Owusu, ruled forum non conveniens to be incompatible with the United Kingdom’s obligations under the Brussels regulation. A continent apart, the Ecuadorian legislature in 1998 pronounced that, when an Ecuadorian filed an action abroad, the act of filing terminated the jurisdiction of the Ecuadorian courts. This legislation caused the Parlatino movement to urge the adoption of similar legislation throughout the Latin America. What is the future of the FNC in the light of these actions?

• Chair: Professor Michael Gordon Wallace, University of Florida Levin College of Law
• Panelists:Henri Saint Dahl, Esq., Adjunct Secretary General, Inter-American Bar Association
• Prof. Alejandro M. Garro, Columbia University School of Law
• Prof. Loukas Mistelis, Queen Mary, University of London
• Prof. Louise E. Teitz, Roger Williams University   

Recent Developments and Future Trends in Private International Law Friday October 27, 2006, 4:00 pm – 5h30 pm 

Harmonization and codification in the field of private international law has an increasing impact on the work of practitioners and the interests of their clients. This panel will address some of the most important developments and the interest of their clients. This panel will address some of the most important developments and ongoing projects taking place in UNCITRAL, UNIDROIT, the Organization of American States and the Hague Conference of Private International Law, including in such diverse areas as recognition and enforcement of judgments and choice of court agreements, secure finance, electronic commerce, consumer protection, service of process and taking abroad.

• Chair: David P. Stewart, Esq., Office of the Legal Adviser, U.S. Department of State & Co-chair, ABILA Extraterritorial Jurisdiction Committee
• Panelists:David A. Baron, Esq., McDermott Will & Emery LLP
• Prof. Amelia H. Boss, Temple University Beasley School of Law
• Prof. Ronald A.  Brand, University of Pittsburgh School of Law
• John M. Wilson, Esq., Legal Adviser, Department of International Legal Affairs, Organization of American States

All panels are open to students and all members of the ILA and cosponsoring organizations without charge. For others there is a fee payable at the door. 

For more information, please visit the web site of the American Branch of the International Law Association.