On Friday, 20 January 2012, the German Notary Institute, the University of Würzburg and the Notary Institute at the University of Würzburg will host an academic Symposium on the Proposed Common European Sales Law.  More information is available on the German Notary Institute’s website.  Registration is online. The programme reads as follows:

09.00 Uhr Kaffee und Gebäck (Coffee and Pastries)

09.20 Uhr Begrüßung (Welcome Address), Prof. Dr. Oliver Remien, University of Würzburg, Tagungsleiter

Vormittagsblock (Morning Session)

09.30 Uhr Einführung (Introduction), Prof. Dr. Dirk Staudenmayer, European Commission, General Directorate Justice

09.40Uhr An assessment of the proposed Regulation on a Common European Sales Law, Prof. Dr. Dr. h.c. mult. Ole Lando, Copenhagen Business School

10.10Uhr Der räumlich-persönliche Anwendungsbereich des Gemeinsamen Europäischen Kaufrechts (The personal and territorial scope of application of the Common European Sales Law), Prof. Dr. Stefan Leible, University of Bayreuth

10.30 Uhr Anwendungsbereich: Vertragsparteien und Vertragsgegenstand (Scope of application: parties to the contract and object of the contract), Prof. Dr. Thomas Pfeiffer, LL.M., University of Heidelberg

10.50 Uhr Diskussion (Discussion)

11.20 Uhr Kaffeepause (Coffee break)

11.45 Uhr Das Gemeinsame Europäische Kaufrecht – eine sinnvolle Option für B2B-Geschäfte? (The Common European Sales Law – a rational choice for B2B-transactions?), Prof. Dr. Thomas Ackermann, LL.M., University of Munich

12.05 Uhr EU-Kompetenz, Funktionsbedingungen und Perspektiven (EU-Competence, conditions for performance and perspectives), Prof. Dr. Hans Christoph Grigoleit, LL.M., University of Munich

12.25 Uhr Diskussion (Discussion)

13.00 Uhr Mittagessen (Lunch)

Nachmittagsblock (Afternoon Session)

14.30 Uhr Vertragsbegriff und Vertragsabschluss , einschließlich AGB-Problemen (Concept of contract and contract formation, including problems of general business terms), Prof. Dr. Wolfgang Ernst, LL.M., University of Zurich

14.50 Uhr Informationspflichten des Unternehmers und Widerrufsrechte des Verbrauchers (The professional’s duties of information and the consumer’s right of revocation), Prof. Dr. Dirk Looschelders, University of Düsseldorf

15.10 Uhr Diskussion (Discussion)

15.40 Uhr Kaffeepause (Coffee break)

16.10 Uhr Der Verordnungsentwurf und die Problematik seiner Lücken (The proposal for a regulation and the problems of its gaps), Prof. Dr. Beate Gsell, maître en droit (Aix-en-Provence), University of Munich

16.30 Uhr Leistungsstörungsrecht (Law of  non-performance), Prof. Dr. Florian Faust, LL.M., Bucerius Law School, Hamburg

16.50 Uhr Schadensersatz und Rückabwicklung (Damages and restitution),  Prof. Dr. Christiane Wendehorst, LL.M., University of Vienna

17.10 Uhr Diskussion (Discussion)

17.45 Uhr Schlusswort (Closing Remarks)

 

The previous volume of the collection of the addresses to the French Private International Law Committee (Comité français de droit international privé) covers academic years 2006-2007 and 2007-2008.

The addresses discussed the following topics:

– Réflexions sur le rattachement des immeubles en droit international privé (Thierry Vignal)
– De quelques difficultés posées en droit français par la mise en oeuvre de la compétence répressive universelle (Renée Koering-Joulin)
– Le renouveau de la théorie des droits acquis (Etienne Pataut)
– La loi applicable à défaut de choix par les parties selon l’article 4 de la proposition de règlement Rome I (Franco Ferrari)
– L’ordre public de rattachement (Petra Hammje)
– La liberté de choix dans les instruments communautaires récents : Rome I et Rome II – L’autonomie de la volonté entre intérêt privé et intérêt général (Claudia Hahn)
– L’ordre public international à l’épreuve du relativisme des valeurs (Léna Gannagé)
– Le droit international privé espagnol aujourd’hui ou le dépassement des paradigmes (José Carlos Fernandez Rozas)

The first few pages pages of each paper can be freely downloaded here.

Olivier Cachard, who is a professor of law at Nancy University, has published the second edition of his manual on international commercial law.

In the French tradition, the book includes developments on international commercial contracts, the law governing corporations, international insolvency, international bank undertakings, and international commercial arbitration. The table of contents is available here.

More details can be found here.

The third issue of 2011 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht includes the following contributions on the Brussels I Recast (lis pendens and choice of court), Voluntary Assignment, and case notes on TNT Express v. Axa and Pammer/Hotel Alpenhof:

Marielle Koppenol-Laforce, Herschikking Brussel I: litispendentie en forumkeuze, een positieve stap voorwaarts!?, p. 452-460. The English abstract reads:

This article deals with the proposed changes to the Brussels I Regulation in the field of the choice-of-forum clause and the related lis abili pendens provisions. The aim was to make choice-of-forum clauses more effective. The proposal of the Commission is that the chosen court be given priority over the other courts to deal with the questions of the validity and scope irrespective whether it is the first or the second court seized. The proposed articles, however, do not make clear to what extent the non-chosen court may deal with questions of validity and scope. The proposal also introduces a conflict of law rule for the applicable law to the substantive validity of the choice-of court clause, which is somewhat controversial. The conclusion of this article is nonetheless that the proposals are definitely an improvement. The priority given to the chosen court can certainly help to increase effectiveness of such clauses. However, for the proposed measures to be really effective in practise, the text could be made more precise and some inconsistencies should be resolved. This would also prevent courts from having to follow different approaches when dealing with a choice-of-court clause under the Brussels I Regulation and under the Hague Choice-of-Forum Convention.

Cornelis A. de Visser, The law governing the voluntary assignment of claims under the Rome I Regulation, p. 461-467. The conclusion reads:

 Although the assignee and assignor can agree to whatever they wish and that shall be the law as between them, such an agreement cannot affect the rights of third parties, whether such third party is the debtor of the assigned claim or another third party. The position of the debtor of the assigned claim under the assignment is exclusively governed by the law governing the claim. Based on the private international version of the nemo plus principle, it is a straightforward, simple and consistent conclusion that the law governing the claim should also determine the validity and the effect of the assignment against third parties other than the debtor. Any proposal for a different EU conflict of laws rule on the third-party effect of the assignment of a claim does not provide a solution to the conflict of laws, will lead to situations of deadlock, will provide meaningless flexibility, will increase legal uncertainty and would thus only complicate the already rather complex litigation and practice in the cross-border voluntary assignments of claims.

M.A.I.H. Hoeks, CMR of EEX? Van samenloop, litispendentie en het vrij verkeer van beslissingen in Europa, p.468-472. The English abstract reads:

The seed from which the problem sprouted in the TNT-AXA case is the fact that the CMR, an international road carriage convention, refers to national law in Article 29 CMR. This Article determines that if the CMR carrier has caused damage to the cargo ‘by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct’, he is no longer entitled to exclude or limit his liability under the CMR. As a result, it is more likely for a German court of law to consider that a CMR carrier has caused damage by such default than for a Dutch court. Since this type of default denies the carrier the option to limit his liability to approximately Euro 11½ per kilogram as per Article 23 CMR, it is in the carrier’s best interest to avoid the German legal system. Initially carriers thereto sped to Dutch courts in order to gain declaratory judgments of non-liability, or at least limited liability when damage occurred. As soon as the case became pending, it was thought that the lis pendens rule of Article 31(2) CMR would bar the cargo interest’s access to any other forum, including the German one. However, when the German Bundesgerichtshof (the BGH) determined that such an action for a negative declaration did not concern the same subject as an action for a substantive claim, parallel proceedings before a German court became an option. At that point it was no longer sufficient for the carrier to be the first to address a court. It became necessary to be the first to gain a final decision in order to bar the recognition and enforcement of any German decisions on the subject in the Netherlands. Unfortunately for TNT, the Dutch court of first instance that was addressed in the web of the TNT-AXA proceedings failed to decide in a manner that was favourable to the carrier. TNT was therefore forced to appeal, with the result that there was no final decision on the matter when the cargo interest’s insurer, AXA, attempted to have the judgment it had sought in Germany recognised and enforced in the Netherlands. To prevent this, TNT asserted that, according to Article 71 Brussels I Regulation, it is not the Brussels I Regulation but the CMR that determines whether this is possible, because it was of the opinion that the CMR would prevent the recognition and enforcement of the German judgment on the grounds that the German court had no jurisdiction, due to the CMR’s lis pendens rule. Conversely, the Brussels I Regulation only offers the option to refuse recognition because the court whose decision is to be recognised lacked jurisdiction in a very limited set of situations. None of which occurred in the TNT-AXA case. All in all, it took six legal procedures and seven years for the parties to reach the ECJ, the European Court of Justice. When asked whether the recognition and enforcement was in this case governed by the CMR or by the Brussels I Regulation, and whether some light could be shed on the meaning of Article 31 CMR, the ECJ determined that it was indeed the CMR that regulated the matter as it, in principle, is granted precedence by Article 71 Brussels I Regulation, and that it did not have the authority to interpret the meaning of the provisions of the CMR as this is not an EU instrument. However, since Article 71 Brussels I Regulation cannot be interpreted as leading to a result that is irreconcilable with one of the basic principles of the Brussels I Regulation, the favor executionis principle in this case, the rules of the CMR can only apply in the EU Member States insofar as they lead to a result that is in accordance with this principle. The precedence of the CMR can therefore not result in the recognition and enforcement of the German decision being rejected. Thus, it is only in theory that the rules of the CMR govern the matter, not in actual practice.

W. van den Aardweg, De gerichte activiteit van artikel 15 lid 1, onderdeel c, Brussel I: meer duidelijkheid door Luxemburgse gezichtspunten, p. 473-477. The English abstract reads:

This article reviews the recent ECJ decision in the joined cases of Alpenhof and Pammer on the notion of ‘directed activity’ as contained in Article 15, paragraph 1, under c, of the Brussels I Regulation in the context of e-commerce. This rule assigns jurisdiction to the courts of the country where the consumer resides whenever a trader directs commercial or professional activities to that Member State and the contract falls within the scope of such activities. In this case, the Grand Chamber clarified that in order to have ‘directed activity’ an intention on the part of the trader to target his activity towards a certain Member State is required. The mere use of a website with information which enables a consumer to contact the trader is insufficient to conclude that such an intention exists on the part of the trader. The Court considered several factors which could provide evidence of an intention on the part of the trader to target his professional and commercial activities towards a Member State. In his note the author comments on the decision and reviews several factors considered to be relevant by the Court, in particular the role of information required by statute and how the factors considered by the Court should be considered and duly weighed.

If you are interested in contributing to this journal, please contact Ms. Wilma van Sas at W.van.Sas-Wildeman@asser.nl

 

George A. Bermann is the Gellhorn Professor of Law & Jean Monnet Professor of European Union Law at Columbia University School of Law, and the Chief Reporter for the ALI Restatement (Third) of the US Law of International Commercial Arbitration.

The recent decision of the Second Circuit panel in Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru is sadly misguided.

It is regrettable, but understandable, that the panel felt bound by the Second Circuit’s 2002 decision in In re Arbitration between Monegasque de reassurances S.A.M. v. NAK Naftogaz of Ukraine, making forum non conveniens stays or dismissal available to defeat actions to enforce New York Convention awards. I say regrettable because, as is clear from the position taken by the ALI Restatement of the US Law of International Commercial Arbitration, exercising a purely discretionary ground like forum non conveniens to deny enforcement of a Convention award is essentially inconsistent with U.S. treaty obligations. The common argument, embraced by the panel majority, that doctrines like forum non conveniens are “saved” by Article III of the New York Convention, which provide that enforcement under the Convention shall be in accordance with the rules of the forum where enforcement is sought, is bogus.  When the Convention drafters “saved” forum procedure, they undoubtedly contemplated purely procedural rules such as those governing pleadings, time limitations, evidentiary rules and the like. The drafters were not about to supplant all those rules by a Convention that is silent on the procedures applicable to actions to enforce Convention awards. That would result in a bizarre procedural vacuum. But forum non conveniens is not, in any event, a rule of that sort.  It doesn’t determine “how” an adjudication shall be conducted.  It determines “whether” an adjudication shall be conducted.”  And it was precisely the purpose — indeed the core purpose — of the Convention to ensure that timely applications for the enforcement of Convention awards would be entertained as a matter of international treaty obligation, subject only to the defenses limitatively set out in the Convention.

The Monegasque decision of the Second Circuit may indeed have left the panel in Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru no choice but to entertain the forum non conveniens claim.

But there is still more to regret in this decision, and it is nothing that adherence to Monagesque required.  In effect, the court used the forum non conveniens doctrine to give effect to a Peruvian ceiling on damages that the court had no business vindicating. The statute purported to limit to three percent of an agency’s annual budget the amount of money that an agency of the Peruvian government could pay out annually to satisfy a judgment against it. The majority gave Peru’s interest, as reflected in the statute, dispositive weight in the interest balancing that forum non conveniens entails, and it did so without the parties even having designated Peruvian law as the law governing their relationship.

To the extent that an arbitral award grants relief in excess of that allowed by Peruvian law means that the award was, at worst, legally erroneous if judged under Peruvian law.  But legal error — even egregious legal error — is decidedly not a ground for denying enforcement of an award under the Convention.  Quite frankly, what the decision does, without of course so saying, is to give effect to the public policy of Peru as a basis for denying enforcement of the award, despite the fact that the Convention by its own clear terms entitles a court to deny enforcement of an award on public policy ground only to the extent that enforcement would be “contrary to the public policy of the country where enforcement is sought,” viz. the United States, not the public policy of some other jurisdiction.

In so deciding, the majority also disrespected the clear holding of the U.S. Supreme Court in the foundational Piper Aircraft Co. v. Reyno decision to the effect that little if any weight should be given, in a forum non conveniens analysis, to whether resort to the doctrine would result in application of a different body of law, and even lead to a different substantive result, than the body of law that would have been applied and the result that would have obtained had the U.S. court retained jurisdiction.

But the decision is not to be entirely regretted, for the simple reason that it elicited a dissenting opinion by Judge Gerard Lynch that is nothing less than brilliant in its demonstration, not only that forum non conveniens is an unwelcome presence under the Conventions, but also that it was in any event folly to apply that doctrine in the circumstances of this case.  As Judge Lynch observed in dissent, the net effect of the judgment is perversely to send the parties for enforcement back to a Peruvian court when it is all but certain that they had selected arbitration as their dispute resolution mechanism precisely to avoid the Peruvian court’s jurisdiction and when they had reason to believe that the resulting award would win enforcement in a U.S. court, unless one of the stated grounds for denying enforcement could be established.