Prof. Alfonso-Luis Calvo Caravaca (University Carlos III of Madrid) and Prof. Javier Carrascosa González (University of Murcia) have recently published their latest work, devoted to tort conflicts: “Las obligaciones extracontractuales en derecho internacional privado. El Reglamento Roma II“ (Editorial Comares, May 2008). Despite its title, centered on the new EC Regulation on the law applicable to non-contractual obligations, the book (in Spanish) covers the whole area of tort conflicts, both under the point of view of jurisdiction and applicable law, including matters excluded from the scope of application ratione materiae of the Rome II Reg. It is divided into three parts.

The first part (Competencia judicial internacional y obligaciones extracontractuales), devoted to jurisdictional issues, focuses on Art. 5(3) Brussels I Reg./1968 Brussels Convention, and the abundant case law of the ECJ on the interpretation of these basic provisions. Other conventional texts are taken into account, in the Brussels system (new Lugano Convention of 2007) and in special matters (nuclear damages, civil liability for oil pollution, intellectual and industrial property rights, international transports, etc.), along with the Spanish rules on jurisdiction in torts (Art. 22 of the Ley Organica del Poder Judicial). The final section deals with jurisdictional issues arising out of torts committed on the Internet.

The second part (Ley aplicable a las obligaciones extracontractuales: conexiones generales) analyses the main features of the Rome II Reg.: its methodological foundations, relationships with other international/EC instruments, scope of application, the provision on choice of law by the parties (Art. 14) and the general rule set out in Art. 4 (lex loci damni, common domicile exception, escape clause).

The third part (Ley aplicable a las obligaciones extracontractuales: materias específicas) covers the special rules of the Rome II Regulation on specific categories of torts and other non-contractual obligations (Articles 5-13), along with matters excluded from its material scope of application (such as rights relating to the personality) or whose conflict regime is provided in other international instruments (oil pollution damages, collision between vessels, nuclear damages, etc.). As in the first part on jurisdiction, the last sections are devoted to the Spanish conflict rule on torts (Art. 10(9) of the Código Civil) and to problems arising from Internet torts.

The analysis of each provision and issue is complemented by a number of examples, taken from real cases or fictitious, which help the reader to understand the conflict reasoning and the outcome of the choice-of-law process.

The detailed table of contents, and the introductory chapter (Presentación) can be found on the publisher’s website.

Title: Las obligaciones extracontractuales en derecho internacional privado. El Reglamento Roma II, by Alfonso-Luis Calvo Caravaca and Javier Carrascosa González, Editorial Comares, Albolote (Granada), 2008, 248 pages.

ISBN: 978-84-9836-390-6. Price: EUR 23.

(Many thanks to Pietro Franzina, University of Ferrara, for the tip-off)

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Readers of this blog might also be interested in the forthcoming ninth edition of the conflict of laws manual by Calvo Caravaca and Carrascosa González: Derecho Internacional Privado – Volumen I and Volumen II (Editorial Comares, July 2008). In addition, a valuable resource on PIL cases and legislation is the excellent website of the Accursio Group (Spanish Multi-University Group of Research, Teaching & Practice on Private International Law), created and maintained by the two Spanish professors with other scholars: see, besides a number of sections focused on Spanish PIL (such as those on international successions and polygamy), the Laboratorio Bruselas section (references and text of the ECJ’s case-law on the EC instruments on PIL) and the Super-Caso section (tricky conflict cases to be solved by readers).

Yesterday, the U.S. Supreme Court delivered its decision in Exxon v. Baker. The central issue of the case was whether an award of punitive damages of US$ 2.5 billion (as reduced by the lower courts from an initial award of US$ 5 billion) was excessive as a matter of maritime common law. The Court held 5 to 3 (with Alito recused) that such awards should be limited by using a ratio of punitive to compensatory damages. The court held that, in maritime cases, a ratio of 1:1 is a fair upper limit. Thus, as the lower court had assessed the compensatory damages to US$ 507 million in that case, the Supreme Court held that punitive damages should be reduced to that amount as well.

This case comes after several decisions where the Supreme court has interpreted the Due Process Clause as setting limits to punitive damages awards. In those cases, it was held that a ratio superior to one digit (i.e. superior to 9:1) would rarely satisfy Due Process, and that when the award of compensatory damages was already substantial, it might be that only a ratio of 1:1 would satisfy the constitutional requirement.

There is therefore a clear trend in American law towards more reasonableness and predictability in the award of punitive damages.

To bolster its holding limiting punitive damages, the Court noted that the practice of other common law jurisdictions was different, but also that awards of punitive damages were often denied recognition abroad:

For further contrast with American practice, Canada and Australia allow exemplary damages for outrageous conduct, but awards are considered extraordinary and rarely issue. See … Noncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries as France, Germany, Austria, and Switzerland. See … And some legal systems not only decline to recognize punitive damages themselves but refuse to enforce foreign punitive judgments as contrary to public policy. See, e.g., Gotanda, Charting Developments Concerning Punitive Damages: Is the Tide Changing? 45 Colum. J. Transnat’l L. 507, 514,518, 528 (2007) (noting refusals to enforce judgments by Japanese, Italian, and German courts, positing that such refusals may be on the decline, but concluding, “American parties should not anticipate smooth sailing when seeking to have a domestic punitive damages award recognizedand enforced in other countries”).

From a conflict perspective, the interesting question is whether such an evolution of American law would change anything. Would Japanese, Italian or German courts recognize lower awards? Is size the issue? Or is it just the punitive nature of such judgments, which makes them, for conflict purposes, criminal in nature?

Comments from all jurisdictions welcome!

We are pleased to announce the:

Journal of Private International Law Conference
The Rome I Regulation: New Choice of Law Rules in Contract
Friday 19th September 2008
Herbert Smith, Exchange House, London

The full programme, also set out below, can be found on our dedicated conference page. The speakers are all internationally recognised experts in the fields of private international law, insurance e-commerce and IP, and financial services. The keynote speech is to be delivered by The Honourable Mr Justice Richard Plender, Royal Courts of Justice.

Details on fees and booking can be found here – if you wish to attend, I suggest booking with all due speed as places are limited.

The conference is kindly sponsored by Herbert Smith, the University of Birmingham, the University of Aberdeen and the University of Southampton.

Programme

9.30am – 10.00am Registration and Coffee/Tea

10.00am – 10.15am Opening and Keynote Address

The Honourable Mr Justice Richard Plender, Royal Courts of Justice, ‘Towards a European Private International Law of Obligations‘

10.15am – 11.30am The General Framework

(Chair: Professor Paul Beaumont, University of Aberdeen)

Raquel Correia, Legal Adviser and JHA Counsellor, Portuguese Permanent Representation to the European Union

Andrew Dickinson, Clifford Chance LLP, London; Visiting Fellow in Private International Law, British Institute of International and Comparative Law

Dr Michael Hellner, University of Uppsala

Oliver Parker, Legal Adviser, Ministry of Justice

11.30am – 12.00pm Coffee/Tea Break

12.00pm–1.00pm Insurance

(Chair: Adam Johnson, Partner, Herbert Smith LLP)

Richard Lord QC, Brick Court Chambers

Professor Robert Merkin, University of Southampton

Louise Merrett, Trinity College, University of Cambridge; Fountain Court Chambers

1.00pm – 2.15pm Lunch

2.15pm – 3.15pm E-Commerce and IP

(Chair: Professor Gerrit Betlem, University of Southampton)

Richard Fentiman, Queens’ College, University of Cambridge

Dr Julia Hörnle, Queen Mary, University of London

Professor Paul Torremans, University of Nottingham

3.15pm – 4.30pm Financial Services

(Chair: Professor Jonathan Harris, University of Birmingham; Brick Court Chambers)

Professor Michael Bridge, London School of Economics, University of London

Professor Francisco Garcimartin Alférez, University of Madrid Rey Juan Carlos

Dr Joanna Perkins, Secretary of the Financial Markets Law Committee

Charles Proctor, Partner, Bird & Bird; Honorary Professor, University of Birmingham

4.30pm – 5.00pm Coffee/Tea Break

5.00pm – 5.30pm Panel Discussion

(Chair: Murray Rosen QC, Partner, Herbert Smith LLP)

5.30pm Drinks Reception

Booking and Fees

The International Max Planck Research School for Maritime Affairs at the University of Hamburg will award for the period commencing 1 October 2008 six Ph.D. grants for a term of two years. The particular area of emphasis to be supported by this round of grants is the Implications of Climatic Changes in the Arctic.

Deadline for applications is 31 July 2008.

More information on the International Max Planck Research School for Maritime Affairs, application requirements as well as the application procedure can be found here.

New references for preliminary rulings on the interpretation of the Brussels I Regulation, the Brussels II bis Regulation and the Insolvency Regulation have been referred to the ECJ:

1. Reference on Brussels I Regulation

The Swedish Högsta Domstolen has referred the following question to the ECJ:

Is the exception in the Brussels I Regulation regarding insolvency, compositions and analogous proceedings to be interpreted as meaning that it covers a decision given by a court in one Member State (A) regarding registration of ownership of shares in a company having its registered office in Member State A, which ownership is transferred by the liquidator to a company in another Member State (B), where the court based its decision on the fact that Member State A, in the absence of an agreement between the States regarding mutual recognition of insolvency proceedings, does not recognise the liquidator’s powers of disposal over property in Member State A?

The case is pending as SCT Industri Aktiebolag i likvidation v. Alpenblume Aktiebolag (C-111/08).

2. Reference on Insolvency Regulation

The Spanish Juzgado de lo Mercantil No 1 has referred the following questions to the ECJ:

1. For the purposes of Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty of European Union and the Treaty establishing the European Community, should Denmark be considered to be a Member State within the meaning of Article 16 of Regulation (EC) No 1346/2000 on insolvency proceedings?

2. Does the fact that that Regulation is subject to that Protocol mean that that Regulation does not form part of the body of Community law in that country?

3. Does the fact that Regulation No 1346/2000 is not binding on and is not applicable in Denmark mean that other Member States are not to apply that Regulation in respect of the recognition and enforcement of judicial declarations of insolvency handed down in that country, or, on the other hand, that other Member States are obliged, unless they have made derogations, to apply that Regulation when the judicial declaration of insolvency is handed down in Denmark and is presented for recognition and enforcement in other Member States, in particular, in Spain?

The case is pending as Finn Mejnertsen v Betina Mandal Barsoe (C-148/08).

3. Reference on Brussels II bis Regulation

The French Cour de Cassation has referred the following questions to the ECJ:

Is Article 3(1)(b) [of Regulation No 2201/2003] to be interpreted as meaning that, in a situation where the spouses hold both the nationality of the State of the court seised and the nationality of another Member State of the European Union, the nationality of the State of the court seised must prevail?

If the answer to Question 1 is in the negative, is that provision to be interpreted as referring, in a situation where the spouses each hold dual nationality of the same two Member States, to the more dominant of the two nationalities?

If the answer to Question 2 is in the negative, should it therefore be considered that that provision offers the spouses an additional option, allowing those spouses the choice of seising the courts of either of the two States of which they both hold the nationality?

The case is pending as Iaszlo Hadadi (Hadady) v Csilla Marta Mesko, married name Hadadi (Hadady) (C-168/08).

(Many thanks to Jens Karsten (Brussels) for the tip-off.)