TDM 4 (2013) – Ten years of Transnational Dispute Management

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tdm4(2013)TDM has published its special anniversary issue. According to the Editorial by Mark Kantor, and especially relevant to readers of this site, “the TDM community has not limited itself to investment treaty disputes. Instead, we have promoted discussion of international commercial arbitration, litigation over international issues in national courts, mediation of cross-border disputes, administrative law in national and international tribunals, labor and environmental disputes, the overlap between human rights law and tribunals and investments, the overlap between WTO dispute resolution and investments, administrative law and international matters, treaty making and treaty unmaking, and so many other methods for transnational dispute management.” With articles from leading authorities on timely topics of regional and substantive interest, the anniversary issue is no different.

Italian Book on the Succession Regulation

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 The Italian publisher Giuffrè has recently published Il diritto internazionale privato europeo delle successioni mortis causa [The EU Private International Law of Succession upon Death], edited by Pietro Franzina and Antonio Leandro, with a preface by Karen Vandekerckhove.

The book is a collection of essays, in Italian, covering a variety of issues in connection with Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

In an introductory paper, Pietro Franzina (University of Ferrara) examines the reasons for unifying private international law rules in succession matters in Europe and the main policy options underlying the new instrument. Giacomo Biagioni (University of Cagliari) deals in his contribution with the scope of application of Regulation No 650/2012 and with the relationship entertained by the latter with other texts – international conventions and EU legislative acts – that may come into play in respect of cross-border successions.

Antonio Leandro (University of Bari) explores the rules laid down by the Regulation as regards jurisdiction in matters of succession. The provisions determining the law applicable to succession are examined from a general perspective by Domenico Damascelli (University of Salento), while Bruno Barel (University of Padova) focuses on the conflict-of-laws issues raised by agreements as to succession.

Elena D’Alessandro (University of Torino) analyses in her paper the rules relating to the recognition, the enforceability and the enforcement of judgments and court settlements, whereas the contribution of Paolo Pasqualis (Italian Council of Notaries) is concerned with the movement of authentic instruments relating to succession matters across Europe. The newly instituted European Certificate of Succession is the object of a paper by Fabio Padovini (University of Trieste). Finally, Emanuele Calò (Italian Council of Notaries) provides an overview of the main features of the substantive regulation of succession upon death from a comparative perspective.

The table of contents of the book may be downloaded here.

Conference Announcement: What Law Governs International Commercial Contracts?

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On October 18, 2013, Brooklyn Law School is hosting an important symposium on the question of what law governs international commercial contracts.  A link to the event is here.  Below is a short description of the symposium.  This should be of great interest to private international lawyers and the international arbitration community.

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What Law Governs International Commercial Contracts? Divergent Doctrines and the New Hague Principles

Friday, October 18 9:15 am-3:15 pm

Brooklyn Law School Subotnick Center 250 Joralemon Street Brooklyn, New York

Co-Sponsors Dennis J. Block Center for the Study of International Business Law Brooklyn Journal of International Law

About the Symposium With the continued dramatic growth of international commerce, a critical question has become even more important: What law governs the contracts behind the commerce? Key issues include:

  • In much of the world, courts accept the choice of the parties to a contract as to what law will govern it – but this principle is not accepted everywhere. Even in nations where it is accepted, differences abound.
  • Should the ability of parties to select the law governing their contract be approached differently in the increasingly prevalent world of international commercial arbitration?
  • In many arbitral systems, parties may select not only the law of a sovereign state, but also “rules of law” emanating from non-state sources, such as “principles” promulgated by international organizations. Should courts show the same deference to the parties’ choice of non-state law?

The Hague Principles on Choice of Law in International Contracts, prepared by the Hague Conference on Private International Law and now nearing completion, are expected to be quite influential, both in establishing the principle of party autonomy to select the law governing commercial contracts and in developing the principle and its limits.

This symposium addresses the important issues described above – from the perspectives of both current law and the “best practices” represented by the draft Hague Principles.

Nagy on the Draft Regulation on Matrimonial Property

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Csongor István Nagy (University of Szeged, Faculty of Law) has posted The European Commission’s Draft Regulation on the Conflict of Laws of Matrimonial Property – Some Conceptual Questions on SSRN.

The paper analyses, in the context of the European Commission’s Draft Regulation on the conflict of laws of matrimonial property and from a choice-of-law perspective, the property issues connected to the dissolution of the marriage, with special emphasis on matrimonial property. It examines the problems emerging from the differences between Member State laws in terms of thinking and conceptualization and analyses how these impact the application of the Draft Regulation.

New Edition of Collier’s Conflict of Laws

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Pippa Rogerson (University of Cambridge) has published the fourth edition of her former colleague John Collier’s manual on the Conflict of Laws.

This reworked version of Conflict of Laws introduces a new generation of students to the classic. It has been completely rewritten to reflect all the recent developments including the increased legislation and case law in the field. The author’s teaching experience is reflected in her ability to provide students with a clear statement of rules which sets out a framework to the subject, before adding detail and critical analysis. Recognising that the procedural aspect of the subject challenges most students, the book explores conflict of laws in its practical context to ensure understanding. Teachers will appreciate the logical structure, which has been reworked to reflect teaching in the field today. Retaining the authority that was the hallmark of the previous edition, this contemporary and comprehensive textbook is essential reading.

  • Clear and accessible updated version of the classic text on the subject
  • Focuses on commercial law
  • Substantially rewritten to reflect all case law and legislative developments
  • Restructured to map contemporary courses

UK Supreme Court Rules on Return of British Children

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On 9 September 2013, the UK Supreme Court delivered its judgment In the matter of A (Children) (AP).

The Court issued the following press summary.

BACKGROUND TO THE APPEAL

The issue in this appeal is whether the High Court of England and Wales has jurisdiction to order the ‘return’ to this country of a small child who has never been present here on the basis that he is habitually resident here or that he has British nationality.

The child, called Haroon in the judgment, was born on 20 October 2010 in Pakistan. His father was born in England and his mother in Pakistan. They married in Pakistan in 1999 and lived in England from 2000. They have four children: two daughters, born in 2001 and 2002, and two sons, one born in 2005 and Haroon. The father and the first three children, who were born in England, have dual British and Pakistani nationality and the mother has indefinite leave to remain in the United Kingdom.

From 2006 the father began to spend a lot of time in Pakistan. The marriage was unhappy and in 2008 the mother moved into a refuge with her three children complaining of abuse. The mother arranged a three week trip to Pakistan in October 2009, in order to visit her father with the children. When she was there she was put under pressure by her father, her husband and his family to reconcile with her husband and was forced to give up the children’s passports. She strongly wished to return to England and telephoned the refuge asking for their help to return from February 2010, when she became pregnant with Haroon. Eventually in May 2011 her family helped her to return to England without the children and she began proceedings for their return in the High Court. On 20 June 2011 all four children were made wards of court and the father was ordered to return them forthwith.

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French Supreme Court follows ECJ judgment on jurisdiction clauses in Refcomp

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Vincent Richard is a Research Fellow at the Max Planck Institute Luxembourg.

On September 11th, 2013, the French Supreme Court for private and criminal matters (Cour de Cassation) rendered its final decision in Refcomp SPA v. Axa Corporate solutions assurances (in French).

This case on the possible transmission of a jurisdiction clause in a succession of contracts transferring ownership gave rise to a preliminary ruling of the ECJ which was reported on this blog.

In its decision the ECJ ruled that a jurisdiction clause could not be relied against a sub-buyer unless it is established that he has actually consented to the clause under the conditions of article 23 Brussels I. According to the ECJ, the application of the French rule whereby a sub-buyer can bring a contractual action against the manufacturer and thus be bound by a jurisdiction clause, would have infringed the uniform application of the Brussels I regulation.

Unsurprisingly, the French Supreme Court acknowledged and complied with this decision by confirming the French courts’ jurisdiction against Refcomp SPA. The court expressly mentions the ECJ ruling and then applies it in the present situation thus denying any effect to the jurisdiction clause against a sub-buyer (Doumer SNC insured by Axa) who has not agreed to it.

Refcomp will thus have to defend himself before French courts despite having concluded a jurisdiction clause in favour of an Italian court when he sold his product to his Italian client (Climaveneta).

Call for Papers: Boundaries of European Private International Law

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Boundaries of European Private International Law

Lyon – Barcelone – Louvain-la-Neuve 

Jean Monnet Life Long Learning Programme

The European Union is undertaking a vast, complex process to standardise the rules of private international law among the Member States (rules on conflict of law, jurisdiction, recognition and enforcement of foreign court orders). For legal experts in this discipline, who have historically been trained in private international law primarily on a national basis, and secondarily on an international basis, the changes will be considerable. The adoption of a large number of European regulations and the overhaul of the existing regulations also represent challenges to the training and education of legal experts.

Against this highly changeable backdrop, the Research Centre of Private International Law (CREDIP), at the University Jean Moulin – Lyon 3, has commenced a European research program on the theme of the boundaries of European private international law. Where does European private international law begin and end?

A demonstration of the existence of European private international law is no longer necessary. However, the question of the place of European private international law in a more globalised legal order, i.e. the difficult but crucial theme of reconciling European private international law to the legal frameworks that preceded it at national, international and European level, has been largely neglected to date.

The aim of this research program is to remedy this situation by holding discussions in different locations in Europe (Lyon – Barcelona – Louvain), bringing together European specialists in private international law or European law and doctoral or post-doctoral students.

Four main themes will be tackled:

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5th Journal of Private International Law Conference

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This piece of news has been provided by Céline Camara and Polina Pavlova, research fellows at the Max Planck Institute Luxembourg.

The 5th Journal of Private International Law conference was hosted by the Universidad Autónoma de Madrid and the Universidad Complutense de Madrid on 12th-13th September 2013. The programme is available here.

The Editors of the Journal (Professors Jonathan Harris of King’s College, London and Paul Beaumont of Aberdeen) and the conference organisers (Professors Pedro de Miguel Asensio and Carmen Otero of UCM and Francisco Garcimartin and Elena Rodriguez of UAM) were successful in providing a comprehensive forum for the private international law community.

Around 80 speakers from all around the world – including young researchers and renowned scholars alike – presented their work. 15 different thematic panel sessions covered all relevant areas of private international law. In addition, a series of plenary sessions gave impetus to lively discussions.

As was to be expected, one of the hot topics of the conference was the Brussels I Recast. The abolition of exequatur, jurisdiction over Third State defendants, consumer protection and collective redress were, inter alia, extensively addressed. 

Another significant part of the conference dealt with legal issues resulting from the increased mobility and new trends of modern society as well as new technology developments. For instance, several discussions tackled the PIL aspects of same sex marriage and online contracts.

The interplay between Private and Public International Law was a question underlying several research projects presented at the event.

The interaction between regional and global approaches offered an impetus to rethink principles of PIL as well as regulatory concepts.

The conference was closed by a presentation held by the Advocate General Pedro Cruz Villalón.

Aside from the legal insights provided in the sessions, the venue of the event together with the well-conceived social programme ensured that all participants greatly enjoyed their stay in Madrid.

We are looking forward to the next JPIL Conference which will take place in Cambridge in 2015.

Conference: “La governance di Internet: diritti, regole e territorio” (Rome, 4 October 2013)

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Unitelma-SapienzaAn interesting conference on the legal regime of the Internet, dealing with a number of issues related to international law, EU law and private international law has been organized by Mario Carta (University “Unitelma Sapienza”) and will be hosted on Friday, 4 October 2013 by the Faculty of Law of the University of Rome “La Sapienza”: “La governance di Internet: diritti, regole, territorio”. Here’s the programme (available as a .pdf file here):

Welcome address

  • F. Avallone (Rector, University “Unitelma Sapienza”);
  • G. Spangher (Dean of the Faculty of Law, University of Rome “La Sapienza”)

I session (h 09:30)

Chair: M. Caravale (University “Unitelma Sapienza”)

  • K. Benyekhlef (University of Montreal, CRDP CERIUM): État de droit et virtualité: souveraineté et surveillance;
  • V. Zeno-Zencovich (UNINT – University of Roma Tre): Internet e sovranità;
  • S. Marchisio (University of Rome “La Sapienza”): Il ruolo delle organizzazioni internazionali nella governance di Internet;
  • T. E. Frosini (University “Suor Orsola Benincasa”, Naples): Il diritto di accesso a Internet come diritto fondamentale;
  • C. Curti Gialdino (University of Rome “La Sapienza”): La diplomazia alla prova di Internet;
  • M. Carta (University “Unitelma Sapienza”): Internet e diritti umani nel diritto europeo ed internazionale.

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II session (h 14:30)

Chair: A. Davì (University of Rome “La Sapienza”)

  • D.A. Limone (University “Unitelma Sapienza”): La governance dei dati digitali delle Pubbliche Amministrazioni;
  • A. Zanobetti (University of Bologna): Il diritto dei contratti e le nuove tecnologie digitali;
  • F. Marongiu Buonaiuti (University of Macerata): Giurisdizione e legge applicabile in relazione alle violazioni della privacy e dei diritti della personalità commesse per via telematica;
  • E. Baroncini (University of Bologna): La rivoluzione digitale e il rapporto tra commercio, diritti umani e morale pubblica nel sistema dell’OMC.

(Many thanks to Prof. Fabrizio Marongiu Buonaiuti for the tip-off)