The European Parliament’s Resolution of 10 March 2009 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (2008/2180(INI)) has been published (see the Parliament’s website).

The resolution constitutes the Parliament’s response to the Commission’s report on the application of the Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (COM(2007)0769).

The Comission’s report on the application of Regulation (EC) No. 1206/2001 had been prepared on the basis of Art. 23 Regulation (EC) No. 1206/2001 stating that no later than 1 January 2007, and every five years later, the Commission shall present a report on the application of the Regulation.

In its report, the Commission

• encourages all further efforts – in particular beyond the dissemination of the practice guide – to enhance the level of familiarity with the Regulation among legal practitioners in the European Union
• is of the view that measures should be taken by Member States to ensure that the 90 day time frame for the execution of requests is complied with
• is of the view that the modern communications technology, in particular videoconferencing which is an important means to simplify and accelerate the taking of evidence, is by far not used yet to its possible extent, and encourages Member States to take measures to introduce the necessary means in their courts and tribunals to perform videoconferences in the context of the taking of evidence. The importance of the further promotion of E-Justice has also been stressed by the Council (at its meeting of 12 and 13 June 2007) and by the European Council (at its meeting of 21 and 22 June 2007)

In the Parliament’s resolution, the delayed submission of the Commission’s report on 5 December 2007 is the first but not the only point of criticism brought forward by the Parliament. The resolution rather points out several issues which are regarded as problematic with regard to the functioning of the Regulation:

The Parliament

1.  Condemns the late submission of the above-mentioned Commission report, which, according to Article 23 of Regulation (EC) No 1206/2001, should have been submitted by 1 January 2007 but in fact was not submitted until 5 December 2007;

2.  Concurs with the Commission that greater efforts should be made by Member States to bring the Regulation sufficiently to the attention of judges and practitioners in the Member States in order to encourage direct court-to-court contacts, since the direct taking of evidence provided for in Article 17 of the Regulation has shown its potential to simplify and accelerate the taking of evidence, without causing any particular problems;

3.  Considers that it is essential to bear in mind that the central bodies provided for in the Regulation still have an important role to play in overseeing the work of the courts which have responsibility for dealing with requests under the Regulation and in resolving problems when they arise; points out that the European Judicial Network can help to solve problems which have not been resolved by the central bodies and that recourse to those bodies could be reduced if requesting courts were made more aware of the Regulation; takes the view that the assistance provided by the central bodies may be critical for small local courts faced with a problem relating to the taking of evidence in a cross-border context for the first time;

4.  Advocates the extensive use of information technology and video-conferencing, coupled with a secure system for sending and receiving e-mails, which should become in due course the ordinary means of transmitting requests for the taking of evidence; notes that, in their responses to a questionnaire sent out by the Hague Conference, some Member States mention problems in connection with the compatibility of video links, and considers that this should be taken up under the European e-Justice strategy;

5.  Considers that the fact that in many Member States facilities for video-conferencing are not yet available, together with the Commission’s finding that modern means of communication are “still used rather rarely”, confirms the wisdom of the plans for the European e-Justice strategy recently recommended by Parliament’s Legal Affairs Committee; urges Member States to put more resources into installing modern communications facilities in the courts and training judges to use them, and calls on the Commission to produce specific proposals aimed at improving the current state of affairs; takes the view that the appropriate degree of EU assistance and financial support should be provided as soon as possible;

6.  Takes the view that efforts should be made in the context of the e-Justice strategy to assist courts in meeting the translation and interpreting demands posed by the taking of evidence across borders in an enlarged European Union;

7.  Notes with considerable concern the Commission’s finding that the 90-day time-limit for complying with requests for the taking of evidence, as laid down in Article 10(1) of the Regulation, is exceeded in a “significant number of cases” and that “in some cases even more than 6 months are required”; calls on the Commission to submit specific proposals as quickly as possible on measures to remedy this problem, one option to consider being a complaints body or contact point within the European Judicial Network;

8.  Criticises the fact that, by concluding that the taking of evidence has been improved in every respect as a result of Regulation (EC) No 1206/2001, the Commission report presents an inaccurate picture of the situation; calls on the Commission, therefore, to provide practical support, inter alia in the context of the e-Justice strategy, and to make greater efforts to realise the true potential of the Regulation for improving the operation of civil justice for citizens, businesses, practitioners and judges;

9.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.

Many thanks to Prof. Burkhard Hess (University of Heidelberg) for the tip-off.

The current issue (Vol. 73, No. 1, January 2009) of the Rabels Zeitschrift contains inter alia two interesting articles on the Rome II Regulation and the Hague Convention on Choice of Court Agreements:

Thomas Kadner Graziano: “The Law Applicable to Non-Contractual Obligations (Rome II Regulation)” – the English abstract reads as follows:

As of 11 January 2009, Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) will be applicable in twenty-six European Union Member States. The Rome II Regulation applies to events giving rise to damage which occur after its entry into force on 19 August 2007 in proceedings commenced after 11 January 2009. This Regulation provides conflict of law rules for tort and delict, unjust enrichment and restitution, negotiorum gestio and culpa in contrahendo. It has a wide scope covering almost all issues raised in cases of extra-contractual liability.

The majority of the rules in the Rome II Regulation are inspired by existing rules from European countries. Others are pioneering, innovative new rules. Compared to many of the national systems of private international law of non-contractual obligations, Rome II will bring significant changes and several new solutions. The Rome II Regulation introduces precise, modern and well-targeted rules on the applicable law that are well adapted to the needs of European actors. It provides, in particular, specific rules governing a certain number of specific torts (e.g. product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial action). The provisions of the Regulation will considerably increase legal certainty on the European scale, while at the same time giving courts the freedom necessary to deal with new or exceptional situations. This contribution presents the rules designating the applicable law set out in the Rome II Regulation. The raisons d’êtres behind these rules are explored and ways in which to interpret the Regulation’s provisions are suggested. Particular attention is given to the interplay between Rome II and the two Hague Conventions relating to non-contractual obligations. Finally, gaps and deficiencies in the Regulation are exposed, in particular gaps relating to the law applicable to violations of privacy and personality rights and traffic accidents and product liability continuing to be governed by the Hague Conventions in a number of countries, and proposals are made for filling them.

Rolf Wagner: “The Hague Convention of 30 June 2005 on Choice of Court Agreements” – the English abstract reads as follows:

In 1992 the United States of America proposed that the Hague Conference for Private International Law should devise a worldwide Convention on Enforcement of Judgments in Civil and Commercial Matters. The member states of the European Community saw in the US proposal an opportunity to harmonize the bases of jurisdiction and also had in mind the far-reaching bases of jurisdiction in some countries outside of Europe as well as the dual approach of the Brussels Convention which combines recognition and enforcement of judgments with harmonization of bases of jurisdiction (double convention). Despite great efforts, the Hague Conference did not succeed in devising a convention that laid down common rules of jurisdiction in civil and commercial matters. After long negotiations the Conference was only able to agree on the lowest common denominator and accordingly concluded the Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention). This Convention aims to do for choice of court agreements what the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards has done for arbitration agreements.

The article provides an overview of the negotiations and explains in detail the content of the Choice of Court Convention. In principle the Convention applies only to exclusive choice of court agreements. However an opt-in provision allows contracting states to extend the rules on recognition and enforcement to non-exclusive choice of court agreements as well. The Convention is based on three principles. According to the first principle the chosen court in a contracting state must hear the case when proceedings are brought before it and may not stay or dismiss the case on the basis of forum non conveniens. Secondly, any court in another contracting state before which proceedings are brought must refuse to hear the case. Thirdly, a judgment given by the chosen court must be recognized and enforced in principle in all contracting states. The European instruments like the Brussels I Regulation and the Lugano Convention will continue to apply in appropriate cases albeit with a somewhat reduced scope. The article further elaborates on the advantages and disadvantages of the Choice of Court Convention and comes to the conclusion that the advantages outweigh the disadvantages. The European Community has exclusive competence to sign and ratify the Convention. The author welcomes the proposal by the European Commission that the EC should sign the Convention. Last but not least the article raises the question what has to be done in Germany to implement the Convention if the EC decides to ratify the Convention.

On March 16, 2009 the first issue of a new legal journal dedicated to Private International Law has seen the light. “Cuadernos de Derecho Transnacional”(CDT) (“TransnationalLaw Review”) is published by the Private International Law Section of the University Carlos III of Madrid, Spain. CDT is directed by Professors Alfonso-Luis Calvo and Javier Carrascosa.

The new legal journal offers high quality articles, papers and notes on the most interesting current trends of private International Law.

“Cuadernos de Derecho Transnacional” appears in a completely free on line format. No password is required. It is possible to have access to all the contents of this new legal journal from any country in the world.

All the contributions offered by CDT are presented in PDF (complete text). They all are preceded by an abstract and a set of key-words in two languages.

Articles, papers, essays and other contributions to “Cuadernos de Derecho Transnacional” can be written in any of the principal European languages. “Cuadernos de Derecho Transnacional” has a previous rigorous quality control of any contribution before it is published.

This first issue of CDT (vol. 1, 2009, number 1), contains the following contributions:
Tito Ballarino, Il Regolamento Roma I: forza di legge, effetti, contenuto, pp. 5-18.
Hilda Aguilar Grieder, Los contratos internacionales de distribución comercial en el Reglamento Roma I, pp. 19-35.
Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, La Ley aplicable al divorcio en Europa: el futuro reglamento Roma III, pp. 36-71.
María del Pilar Diago Diago, El comercio internacional de diamantes: sistema de certificación del Proceso Kimberley, pp. 72-91.
Pietro Franzina, Las relaciones entre el Reglamento Roma I y los convenios internacionales sobre conflictos de leyes en materia contractual, pp. 92-101
Antonio Leandro, La legge applicabile alla revocatoria fallimentare nel Regolamento (CE) nº 1346/2000, pp. 102-111
Andrés Rodríguez Benot, La exclusión de las obligaciones derivadas del Derecho de familia y sucesiones del ámbito material de aplicación del Reglamento Roma I, pp. 112-130.
Francisco Martínez Rivas, Traslado internacional de sede social en la Unión Europea: del caso “Daily Mail” al caso “Cartesio”. Veinte años no son nada, pp. 132-142.
MaríaDolores Ortiz Vidal, El caso Grunkin-Paul: notas a la STJUE de 14 de octubre de 2008, pp. 143-151.

Many thanks to Professor Carrascosa González for providing this brief presentation of the new magazine

Law.com just posted a good article on the follow-on litigation after the Supreme Court’s decision in Intel Corp. v. Advanced Micro Systems, Inc., 542 U.S. 241 (2004). That decision, in short, held that 28 U.S.C. 1782–which empowers federal district courts to compel discovery “for use in a proceeding in a foreign or international tribunal”–could be utilized in aid of the EC Directorate-General for competition. That body was a “foreign or international tribunal” in the eyes of the Court. The next logicial question, though, is “what about private arbitral tribunals?” Is that a “foreign or international tribunal” within the meaning of Section 1782?

Despite the broad guidance given by the Court in Intel, the lower courts remain split: two district courts in three seperate districts have held that private arbitral tribunals are not included in the statute, while three others have held that they are. The authors of this article provide a good summary of the post-Intel case law, up to and including the most recent decision denying discovery in aid of private arbitration by the Southern District of Texas.