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Andrew Dickinson

Conflict of Laws Across the Ditch

The Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008, enters into force today. The provisions of the Agreement have been implemented by legislation in both jurisdictions (Trans-Tasman Proceedings Act 2010 (Cth), (NZ)), which also has effect from today.

Among other matters, this legislation lays down newly harmonised rules governing service of process as a basis of jurisdiction, stays of proceedings on appropriate forum grounds, a partial ban on anti-suit injunctions, proof of laws and the recognition and enforcement of judgments, ensuring that the civil justice systems in the two countries will, henceforth, be more closely integrated and aligned.

Weighing European Private International Law in the Balance

The United Kingdom Government is currently undertaking a review of the competences of the European Union, asking what the European Union does, and how it affects government and the general public in the United Kingdom.Brass_scales_with_cupped_trays

As part of that review, the Ministry of Justice has published a Call for Evidence on the impact of European civil justice instruments and has organised two consultation events, in collaboration with Eva Lein, Research Fellow in Private International Law at the British Institute of International and Comparative Law. The first, on the instruments dealing with civil and commercial matters, was held on Monday 3 June. The second, examining the  instruments in the area of family and succession law, is due to be held on Thursday 20 June. Chaired by John Hall of the Ministry, the list of speakers is as follows:

Comparing Rome II

The Rome II Regulation returns to the spotlight in a seminar to be held at the British Institute of International and Comparative Law’s London fortress on Thursday 31 January 2012 (5:30-7:30pm).

The seminar, entitled “Comparative Torts before the Courts: The Impact of Rome II”, is part of the Herbert Smith Freehils Private International Law Seminar Series and comes at a time when the Regulation is under review by the European Commission.  It will focus, in particular, on aspects relating to the application of foreign law rules under the Regulation.

The panel, chaired by Lady Justice Arden, will include Avvocato Marco Bona (Turin), Marie Louise Kinsler and Robert Weir QC (London) and Maître Carole Sportes (Paris) (as well as the author of this post).

Brussels I Recast Set in Stone

At its 3207th meeting held in Brussels, the Council of the European Union has approved the recast of the Brussels I Regulation in the form settled with the European Parliament in a first reading agreement. The accompanying press release announces as follows:

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.

A Principled Approach to Choice of Law in Contract?

On 16 November, a Special Commission of the Hague Conference on Private International Law approved the text of the Hague Principles on the Choice of Law in International Contracts.

The Principles, an amended version of the draft text produced by the Conference’s working group, are intended to be used (among other functions) as a model for national, regional, supranational or international instruments. They deal with the effectiveness and effect of a choice of law in cross-border trade/business contracts, but not consumer or employment contracts (Art. 1). They allow not only a choice of national law (Art. 2) but also (albeit subject to conditions that are riddled with uncertainty, obfuscation and self-serving terminology) a choice of non-national rules of law (Art. 3).

European Parliament Votes to Recast the Brussels I Regulation

Yesterday (20 November 2012) the European Parliament voted, in plenary session, to adopt the report of the Legal Affairs (JURI) Committee (rapporteur: Tadeusz Zwiefka) on the Commission’s Proposal (COM (2010) 748) to recast the Brussels I Regulation. A substantial majority (567-28, 6 absentions) expressed support for the Proposal, subject to the JURI Committee’s amendments. As followers of the process will be aware, the result is a mixed one for the Commission. Although its primary objective of abolishing (procedural) exequatur is supported by the Parliament, other features of the Proposal (most notably, the recommendations to restrict the substantive grounds for opposing enforcement and to harmonise rules of jurisdiction for defendants not domiciled in a Member State) have been ejected.

Canberra Calling – update

Following my earlier post about the Commonwealth Attorney-General’s review of Australian private international law rule (text reproduced below, for ease of reference), two consultation papers have now been released on the project website. The first contains a general overview of the issues covered by the project, and the second considers the possible harmonisation of the tests for staying proceedings which apply in intra-Australian and Trans-Tasman Proceedings. All those with an interest in the subject are invited to submit comments via the website or by e-mail to pil@ag.gov.au.

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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.

Negative declarations, tort and the Brussels I Regulation

An important, if slightly unexpected, ruling from the CJEU in Case C-133/11, Folien Fischer AG and another v Ritrama SpA (25 October 2012). Disagreeing with the Advocate General, the Court has held that an action for a negative declaration seeking to establish the absence of liability in tort may fall within Art. 5(3) of the Brussels I Regulation.

The Court concludes that:

Members of the British Royal Family and aristocracy have long contributed to the development of the law in England governing matters of personal privacy. As long ago as 1849, Prince Albert, the prince consort of Queen Victoria, resorted to the courts to prevent the publication of etchings and drawings by the Royal couple, including of their children (Prince Albert v Strange (1849) 2 De G & Sm 652). In a 1964 case, the Duchess of Argyll sued her formal husband, the 11th Duke, to prevent disclosure of the secrets of their marriage to national newspapers (Argyll v Argyll [1967] Ch. 302). In recent years, both Her Majesty the Queen and Prince Charles, Prince of Wales, have taken legal action in the English courts following the disclosure, or threatened disclosure, of personal information.

Collective Efforts

A new book focussing on legislation promoting cr0ss-border collective redress has been published by Oxford University Press. Edited by Duncan Fairgrieve and Eva Lein, both of the British Institute for International and Comparative Law, Extraterritorality and Collective Redress brings together analysis of the subject by contributors on both sides of the Atlantic. The long, and impressive, list of authors and topics under discussion is as follows:

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