- Carolina Marín Pedreño, Dawson Cornwell
- Mark Harper, Withersworldwide
- Richard Frimston, Russell Cooke
- Professor Paul Matthews, King's College London
- Strenghtening the EU's institutional framework in the civil justice field, notably by establishing a specialist chamber or court (with specialist judges) dealing only with private law matters. This step, above all, is essential if the EU's legislative activity is to be effective and to maintain the confidence of the Member States and the citizens.
- Ensuring better integration of the private international law instruments with other legislative instruments (particularly Directives) adopting substantive private law rules for the internal market, including for the protection of consumers and employees. The Commission should, as a matter of course, assess the inter-action of proposed, private law measures with the private international law instruments at an early stage.
- Monitoring the application and judicial development across the EU of the civil justice acquis as a whole over a longer period, allowing a period of reflection to assess its impact and encourage discussion of possible refinements and incremental developments to ensure better co-ordination of the instruments. The practice of routinely including "5-year review" clauses in civil justice instruments, resulting in a merry-go round of legislative reviews and proposals, should be abolished. It's time to take stock of what we have - after all, it doesn't look too bad.
The purpose of this regulation is to make the circulation of judgments in civil and commercial matters easier and faster within the Union, in line with the principle of mutual recognition and the Stockholm Programme guidelines. The recast regulation will substantially simplify the system put in place by "Brussels I" as it will abolish exequatur, i.e. the procedure for the declaration of enforceability of a judgment in another member state. According to the new provisions, a judgment given in a member state will be recognised in the other member states without any specific procedure and, if enforceable in the member state of origin, will be enforceable in the other member states without any declaration of enforceability. The recast regulation will provide that no national rules of jurisdiction may be applied any longer by member states in relation to consumers and employees domiciled outside the EU. Such uniform rules of jurisdiction will also apply in relation to parties domiciled outside the EU in situations where the courts of a member state have exclusive jurisdiction under the recast regulation or where such courts have had jurisdiction conferred on them by an agreement between the parties. Another important change will be a rule on international lis pendens which will allow the courts of a member state, on a discretionary basis, to stay the proceedings and eventually dismiss the proceedings in situations where a court of a third state has already been seized either of proceedings between the same parties or of a related action at the time the EU court is seized (sic)."Under Art. 81, the recast Regulation ("Brussels 1a"?) will apply from a date 24 months after its entry into force, being 20 days after its publication in the Official Journal. The new rules will not, therefore, apply until early 2015, by which time their potential impact will likely have been closely scrutinised on this site and elsewhere. The UK and Ireland are taking part in the adoption of the recast Regulation, which will also be applicable to Denmark under the terms of the 2005 Agreement between that country and the EC extending the Brussels I regime.
The Preamble 1. This instrument sets forth general principles concerning choice of law in international commercial contracts. They affirm the principle of party autonomy with limited exceptions. 2. They may be used as a model for national, regional, supranational or international instruments. 3. They may be used to interpret, supplement and develop rules of private international law. 4. They may be applied by courts and by arbitral tribunals. Article 1 – Scope of the Principles 1. These Principles apply to choice of law in international contracts where each party is acting in the exercise of its trade or profession. They do not apply to consumer or employment contracts. 2. For the purposes of these Principles, a contract is international unless the parties have their establishments in the same State and the relationship of the parties and all other relevant elements, regardless of the chosen law, are connected only with that State. 3. These Principles do not address the law governing – a) the capacity of natural persons; b) arbitration agreements and agreements on choice of court; c) companies or other collective bodies and trusts; d) insolvency; e) the proprietary effects of contracts; f) the issue of whether an agent is able to bind a principal to a third party. Article 2 – Freedom of choice 1. A contract is governed by the law chosen by the parties. 2. The parties may choose (i) the law applicable to the whole contract or to only part of it and (ii) different laws for different parts of the contract. 3. The choice may be made or modified at any time. A choice or modification made after the contract has been concluded shall not prejudice its formal validity or the rights of third parties. 4. No connection is required between the law chosen and the parties or their transaction. Article 3 – Rules of law In these Principles, a reference to law includes rules of law that are generally accepted on an international, supranational or regional level as a neutral and balanced set of rules, unless the law of the forum provides otherwise. Article 4 – Express and tacit choice A choice of law, or any modification of a choice of law, must be made expressly or appear clearly from the provisions of the contract or the circumstances. An agreement between the parties to confer jurisdiction on a court or an arbitral tribunal to determine disputes under the contract is not in itself equivalent to a choice of law. Article 5 – Formal validity of the choice of law A choice of law is not subject to any requirement as to form unless otherwise agreed by the parties. Article 6 – Agreement on the choice of law 1. Subject to paragraph 2, a) whether the parties have agreed to a choice of law is determined by the law that was purportedly agreed to; b) if the parties have used standard terms designating different laws and under both of these laws the same standard terms prevail, the law designated in those terms applies; if under these laws different standard terms prevail, or if no standard terms prevail, there is no choice of law. 2. The law of the State in which a party has its establishment determines whether that party has consented to the choice of law if, under the circumstances, it would not be reasonable to make that determination under the law specified in paragraph 1. Article 7 – Severability A choice of law cannot be contested solely on the ground that the contract to which it applies is not valid. Article 8 – Exclusion of renvoi A choice of law does not refer to rules of private international law of the law chosen by the parties unless the parties expressly provide otherwise. Article 9 – Scope of the chosen law 1. The law chosen by the parties shall govern all aspects of the contract between the parties, including but not limited to – a) interpretation; b) rights and obligations arising from the contract; c) performance and the consequences of non-performance, including the assessment of damages; d) the various ways of extinguishing obligations, and prescription and limitation periods; e) validity and the consequences of invalidity of the contract; f) burden of proof and legal presumptions; g) pre-contractual obligations. 2. Paragraph 1 e) does not preclude the application of any other governing law supporting the formal validity of the contract. Article 10 – Assignment In the case of contractual assignment of a creditor’s rights against a debtor arising from a contract between the debtor and creditor – a) if the parties to the contract of assignment have chosen the law governing that contract, the law chosen governs the mutual rights and obligations of the creditor and the assignee arising from their contract; b) if the parties to the contract between the debtor and creditor have chosen the law governing that contract, the law chosen governs (i) whether the assignment can be invoked against the debtor, (ii) the rights of the assignee against the debtor, and (iii) whether the obligations of the debtor have been discharged. Article 11 – Overriding mandatory rules and public policy (ordre public) 1. These Principles shall not prevent a court from applying overriding mandatory provisions of the law of the forum which apply irrespective of the law chosen by the parties. 2. The law of the forum determines when a court may or must apply or take into account overriding mandatory provisions of another law. 3. A court may only exclude application of a provision of the law chosen by the parties if and to the extent that the result of such application would be manifestly incompatible with fundamental notions of public policy (ordre public) of the forum. 4. The law of the forum determines when a court may or must apply or take into account the public policy (ordre public) of a State the law of which would be applicable in the absence of a choice of law. 5. These Principles shall not prevent an arbitral tribunal from applying or taking into account public policy (ordre public), or from applying or taking into account overriding mandatory provisions of a law other than the law chosen by the parties, if the arbitral tribunal is required or entitled to do so. Article 12 – Establishment If a party has more than one establishment, the relevant establishment for the purpose of these Principles is the one which has the closest relationship to the contract at the time of its conclusion of the contract.
Australia has often been described as the "lucky country". Blessed with spectacular coastlines and landscapes as well as bountiful natural resources, Australia's international prominence has grown throughout the past century as her products and people have become increasingly mobile. During this period, the development of private international law rules has been left, principally, to the Courts and to the legislatures of the States and Territories that make up the Commonwealth of Australia and the focus, until very recently, has been on the regulation of internal situations involving two or more States/Territories. As a result, private international law in Australia is an interesting, but erratic, patchwork of common law rules (e.g. law applicable to contract and tort), local legislation (e.g. jurisdiction over non-local defendants) and unified Commonwealth-level regimes (e.g. enforcement of some foreign judgments). In 2011, the Standing Committee of Law and Justice (comprising the Attorneys-General of the Commonwealth Government and of each of the States and Territories, as well as the Minister of Justice of New Zealand) recognised the need to assess the suitability of Australia's private international law rules in modern conditions. In April 2012, the SCLJ agreed to the establishment of a working group to commence consultations with key stakeholders to determine whether further reform in this area would deliver worthwhile micro-economic benefits for the community. Having established its working group, the Commonwealth Attorney-General has now launched a public consultation on its newly created Private International Law website, and in parallel on Twitter (@agd_pil), Linked In (AGD - Private International Law) and on Facebook (Private International Law). Online discussions have been launched on jurisdiction, applicable law and other private international law issues and all contributions are welcomed. In particular, and without wishing to exclude the contributions of experts in the field, the organisers of the consultation would like to solicit the views of businesses and individuals with practical experience of the operation of the Australian rules which currently apply to cross-border transactions and events. There is no need to hop on a plane - follow the link now.
If, therefore, the relevant elements in the action for a negative declaration can either show a connection with the State in which the damage occurred or may occur or show a connection with the State in which the causal event giving rise to that damage took place, ..., then the court in one of those two places, as the case may be, can claim jurisdiction to hear such an action, pursuant to point (3) of Article 5 of Regulation No 44/2001, irrespective of whether the action in question has been brought by a party whom a tort or delict may have adversely affected or by a party against whom a claim based on that tort or delict might be made.The judgment is available here, and the Advocate General’s opposing opinion here . A short summary of the facts and decision appears on the Incorporated Council for Law Reporting website here.
Part I: Collective Redress Mechanisms in a Comparative Perspective
1: Diego Corapi: Class Actions and Collective Actions 2: Duncan Fairgrieve and Geraint Howells: Collective Redress Procedures: European Debates 3: John Sorabji: Collective Action Reform in England and Wales 4: Ianika Tzankova and Hélène van Lith: Class Actions and Class Settlements Going Global: An Update from the Netherlands 5: Alexander Layton QC: Collective Redress: Policy Objectives and Practical Problems
Part II: Private International Law and Collective Redress
6: Burkhard Hess: A Coherent Approach to European Collective Redress: 7: Horatia Muir-Watt: The Trouble with Cross-Border Collective Redress: Issues and Difficulties 8: Eva Lein: Cross-Border Collective Redress and Jurisdiction under Brussels I: A Mismatch 9: Justine N Stefanelli: Parallel Litigation and Cross-Border Collective Actions under the Brussels I Framework: Lessons from Abroad 10: Duncan Fairgrieve: The Impact of the Brussels I Enforcement and Recognition Rules on Collective Actions 11: Astrid Stadler: Conflicts of Laws in Multinational Collective Actions: a Judicial Nightmare? 12: Andrea Pinna : Extra-territoriality of Evidence Gathering in US Class Action Proceedings 13: Catherine Kessedjian: The ILA Rio Resolution on Transnational Group Actions 14: Rachael Mulheron: The Requirement for Foreign Class Members to Opt-in to an English Class Action
Part III: Reception of Foreign Collective Redress and Punitive Damages Decisions in National Jurisdictions
15: Francesco Quarta: Foreign Punitive Damages Decisions and Class Actions in Italy 16: John P Brown: Certifying International Class Actions in Canada 17: Marta Requejo Isidro and Marta Otero Crespo: Collective Redress in Spain: Recognition and Enforcement of Class Action Judgments and Class Settlements
Part IV: Extraterritoriality and US Law
18: Thomas A Dubbs: Morrison v. National Australia Bank: The US Supreme Court Limits Collective Redress for Securities Fraud 19: Linda Silberman: Morrison v. National Australia Bank : Implications for Global Securities Class Actions 20: Adam Johnson: Morrison v. National Australia Bank: Foreign Securities and the Jurisdiction to Prescribe 21: Vincent Smith: 'Bridging the Gap': Contrasting Effects of US Supreme Court Territorial Restraint on European Collective Claims 22: Wolf-Georg Ringe and Alexander Hellgardt: Transnational Issuer Liability after the Financial Crisis: Seeking a Coherent Choice of Law StandardCongratulations to Eva, Duncan and the other contributors.