Dickinson on Brussels I Bis

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Andrew Dickinson has posted The Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and  Enforcement of Judgments in Civil and Commercial Matters (Recast) (“Brussels I  bis” Regulation) on SSRN. The abstract reads:

This note considers several aspects of the reforms proposed by the Commission (COM (2010) 748 final, 14 December 2010) to the current EU legal framework regulating the jurisdiction of Member State courts, and the recognition and enforcement of judgments, in civil and commercial matters, as contained in Regulation (EC) No. 44/2001 (the “Brussels I” Regulation). It suggests possible amendments to the Commission’s Proposal, as set out in the Annex.

This paper was presented by the author at a hearing on the review of the Brussels I Regulation held at the European Parliament on 20 September 2011. It is a publication of the European Parliament.

Einhorn on the Enforcement of Judgements on Arbitral Awards

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Talia Einhorn, who is a professor of law at Ariel and Tel Aviv Universities, has posted The Recognition and Enforcement of Foreign Judgments on International Commercial Arbitral Awards  on SSRN. The abstract reads:

The question of the recognition and enforcement of foreign judgments on arbitral awards, as distinct from the recognition and enforcement of the arbitral awards themselves, finds diverging answers in different jurisdictions and in legal doctrine. With respect to judgments on judgments, the general rule is that a judgment rendered in State B, enforcing or recognizing in State B a judgment rendered in State A, cannot as such be enforced or recognized in State C. It is rather the original judgment rendered in State A that has to be relied upon in recognition and enforcement proceedings in all other states.

Judgments on arbitral awards may be treated differently. In the European Union, the recognition and enforcement of such judgments is regulated by the legal system of each Member State. Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“Brussels I”), and formerly the Brussels Convention (1968), as well as the Lugano Convention (1988), excluded “arbitration” from their scope. The Schlosser Report, as well as the decisions of the European Court of Justice in this matter, made it clear that the exclusion covers not only the recognition and enforcement of arbitral awards, covered already by the New York Convention, but extends also to all court proceedings related to arbitration, including proceedings to set aside an arbitral award and proceedings concerning the recognition and enforcement of a foreign arbitral award. The practice in different states (England, France, Germany, , Israel, the American Law Institute [ALI] first draft proposal of a Federal Statute on Recognition and Enforcement of Foreign Judgments) is diverse.

This paper submits that only the arbitral award should be the subject of recognition and enforcement proceedings. Foreign judgments on arbitral awards should not be recognized or enforced. For policy reasons, an exception should be made with respect to a court decision at the arbitral seat to set aside (or vacate) the award. With a view to coordinating results, weight may also be given, depending upon the circumstances, to issues decided by other foreign court judgments on arbitral judgments, as those may indicate that the award-debtor had waived a certain defense, or that he is precluded from raising one.

The paper is confined to judgments in proceedings undertaken under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (NYC). As of January 2011, 145 UN Member States have become NYC Contracting Parties. The numerous cases decided by national courts under the Convention and the vast literature devoted to its interpretation provide a rather comprehensive database.

Accordingly, this paper addresses the rules concerning recognition and enforcement of foreign arbitral awards under the NYC, noting the differences in practice among the NYC Contracting States (2.); an inquiry whether foreign judgments on arbitral awards should be recognized and enforced which first studies the analogous case of judgments on judgments (3.1), and then considers the differences between enforcing judgments on arbitral awards and enforcing the arbitral awards themselves (3.2); an analysis of the special case of judgments setting aside arbitral awards (4.); the possible coordination of results via waiver and preclusion (5.); and final conclusions (6.)

The paper was published in the last issue of the Yearbook of Private International Law.

DSK Asserts Immunity in American Civil Lawsuit

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See this post of Julian Ku over at Opinio Juris.

Galgano & Marrella, Diritto del Commercio Internazionale, III ed.

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The Italian publisher house CEDAM has recently published the third edition of the leading textbook on International Business Law in the Italian language, “Diritto del commercio internazionale“, authored by Prof. Francesco Galgano (emeritus at the University of Bologna) and Prof. Fabrizio Marrella (“Cà Foscari” University of Venice and Université de Paris I – Panthéon Sorbonne).

A presentation has been kindly provided by the authors (the complete TOC is available here):

The book aims at a comprehensive coverage of the legal issues global business managers face. Focusing on the trade, licensing and investment life-cycle that many domestic -new to international- and multinational organizations experience, it provides the necessary understanding of legal issues concerning import-export, market-entry strategies, protecting and licensing intellectual property to learning the special challenges of international investment operations. The third edition is updated to the most significant developments in the field such as: the Lisbon Treaty; Regulation Rome I on the law applicable to contractual obligations and Regulation Rome II on the law applicable to non contractual obligations. In addition, it offers updated information on, inter alia, the Unidroit Principles on International Commercial Contracts (2010); the new UCP 600 (the Uniform Customs and Practice for Documentary Credits, i.e. a set of rules on the issuance and use of letters of credit utilised by bankers and commercial parties in more than 175 countries in trade finance); INCOTERMS 2010;  payment modalities, contracts of carriage and new ICC rules for demand guarantees. A special emphasis is given to arbitration as the main tool for dispute resolution in the international business world.

Title: Diritto del Commercio Internazionale, III edition, by Francesco Galgano and Fabrizio Marrella, CEDAM, Padova, 2011, XXXII-986 pages.

ISBN: 978-88-13-29966-8. Price: EUR 65.

Conference Announcement

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On October 21, 2011, internationally renowned arbitrator Gary Born (also GAR Advocate of the Year 2010 and author of the OGEMID Book of the Year in both 2009 and 2010) leads an international group of experts in a frank discussion of issues that can arise when parties combine litigation tactics with international commercial arbitration.  The symposium, entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration,” will  be held at the award-winning Center for the Study of Dispute Resolution at the University of Missouri School of Law.  Associated events include a  works-in-progress conference where authors discuss their current research with other specialists and a student writing competition sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch.  The registration fee for the symposium, including an “early bird” session concerning the new ICC Rules of Arbitration, is $50, and registration is available online.  The symposium is co-sponsored by the CIArb North American Branch with additional support from the American Society of International Law, the ABA Section of International Law and Transnational Dispute Management.  For more information on all events, see http://www.law.missouri.edu/csdr/symposium/2011/ or contact Professor S.I. Strong at strongsi@missouri.edu.

Article on Global Class Actions in Canada

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Associate Professor Tanya Monestier of the Roger Williams University School of Law has written an article on the willingness of Canadian courts to hear class actions involving a global plaintiff class. It is entitled “Is Canada the New ‘Shangri-La’ of Global Securities Class Actions?” and is forthcoming in 2012 in the Northwestern Journal of International Law and Business. The article is available here from SSRN.

The abstract reads:

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have “officially” arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role last year in Morrison v. National Australia Bank.

Whether Imax proves to be a meaningful precedent or simply an aberration will largely depend on whether the court dealt appropriately with the conflict of laws issues at the heart of the case. No author has yet addressed the conflict of laws complications posed by the certification of global class actions in Canada; this Article seeks to fill that void. In particular, I use the Imax case as a lens through which to canvass the conflict of laws issues raised by the certification of global classes. I look at the difficult questions of jurisdiction simpliciter, recognition of judgments, choice of law, parallel proceedings, and notice/procedural rights that need to be addressed now that global classes have come to Canada.

Cyprus Workshop on the Brussels I Reform and on Collective Redress

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On Friday 30 September, the University of Cyprus will host a workshop on International Developments in International Commercial Litigation. There will be two workshops respectively on “the Revision of the Brussels I Regulation” and “A European Regime for Collective Redress”. This event is sponsored by the European Commission under the Framework Programme on Judicial Cooperation in Civil Matters.

The chairs and speakers include Profs. Fichard Fentiman, Horatia Muir Watt, André Potocki, Miron Nikolatos, Nikitas Hatzimihail, Arnaud Nuyts, Louise Ellen Teitz, Michael Hellner, Maciej Szpunar, Michael Karayanni, Joaquim Forner, Anna Gardella, Garyfalia Athanassiou, Lukasz Gorywoda.

The programme can be found here.

Sciences Po PILAGG Workshop Series, Fall 2011 (updated)

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The workshop on « Private International Law as Global Governance » at the Law School of the Paris Institute of Political Science (Sciences Po) will normally take  place on Fridays at 12:30 pm, at the Law School.

The speakers for the fall 2011 will be:

  • 21st October: Launching PILAGG (Horatia Muir Watt & Diego Fernandez Arroyo: introduction to the PILAGG research project)
  • 28th October: Launching PILAGG Junior Stream (Ivana Isailovitch: “Recognition and legal pluralism”)
  • 17th November (exceptionally a Thursday): Robert WAI, “Private v. Private:  Models of Private Governance in Private International Law” (salle B404 au 56, rue des St Pères).
  • 18 November co-sponsoring with the Ecole Doctorale de Sciences po: Kerry Rittich, Robert Wai, Horatia Muir Watt: “Tools for distributional analysis in law”
  • 25th November: Veronica CORCODEL, “What room for comparative law in the governance debate?” (PILAGG Junior Stream)
  • 29th November (exceptionally a Tuesday, co-sponsoring with “Les Grands Récits de la Pensée Juridique”): Marty KOSKENNIEMI
  • 2nd December Harm SCHEPEL, “Rules of recognition: A legal constructivist approach to transnational private governance”.
  • 9th December: Ralf MICHAELS, “Post-critical Private International Law: From Politics to Technique”
  • 16th December: Tomaso FERRANDO: “Sovereignty abuse, homogeneization of legal orders and land grabbing” (PILAGG Junior Stream)

Where: unless otherwise announced, Law School, 13 rue de l’Université 75007, J210 2nd floor.

When: 12:30 to 14:30pm

Please register at the following address: diego.fernandezarroyo@sciences-po.org

Conference on Party Autonomy in the Conflict of Laws

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On 26 September 2011, the Center for Transnational Litigation and Commercial Law at New York University Law School will host a talk by Professor Jürgen Basedow, Director of the Max Planck Institute for Comparative and International Private Law and Professor of Law at the University of Hamburg, on “A Theory of Party Autonomy in the Conflict of Laws”.

A century ago, authors on both sides of the Atlantic would reject the parties’ ability to choose the law applicable to a contract. Such choice was considered to be a legislative act reserved to the state. The private persons were perceived as being governed by the law, not as determining the governing law. A hundred years later party autonomy is almost generally acknowledged as the primary method of finding the law applicable to a contract. And it is progressively recognized in further areas of the law, too: for torts, matrimonial property regimes, divorce, maintenance etc. Yet, the theoretical foundation for this fundamental change remains elusive. How is it then possible to convince the lawmakers of those countries that have not yet implemented party autonomy? A theory of party autonomy has to explain the consistency of our own law in order to convince others. Departing from a comparative survey over party autonomy in modern legislation, Professor Basedow will deal with the main objections against the freedom to elect the applicable law. He will then outline a theoretical approach that is essentially based on the origin of state and law as described by the political philosophy of the Enlightenment and that is reflected by the modern developments of human rights.

The event will take place at NYU Law School in Room 214, Furman Hall 900, 245 Sullivan Street, New York, NY 10012, 6.15-8.00 pm.

H/T: Déborah Lipszyc

Second Circuit Vacates…: Link to Decision

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Following Gilles’ post: see here.