Author Archives: Marta Requejo

About Marta Requejo

Marta Requejo is a senior researcher fellow of the Max Planck Institute Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. She obtained her law degree from the University of Santiago after spending a year at the University of Le Mans (France) as an Erasmus student; she holds a Doctorate (European Doctorate) from Santiago de Compostela University. Tenured lecturer since 2001, she qualified for access to senior professorship in September 2011. Her primary teaching and research interests are conflict of laws, international litigation, and international commercial law. She has been visitor for researching purposes at the Max Planck Institute on Foreign and Private International Law (Hamburg, Germany), the Institut Suisse de Droit Comparé (Lausanne, Switzerland), the Paris-Pantheon University and the BIICL; also visiting professor at the Paris-Panthéon University. So far she has published four monographs: "Ley local y forma de los actos en el Derecho internacional privado español", 418 pp; "Proceso en el extranjero y medidas antiproceso (antisuit injunctions)", 282 pp; "La cesión de créditos en el comercio internacional", 281 pp; "Violaciones graves de derechos humanos y responsabilidad civil", 369 pp. She is also author of several articles printed in collective works, and numerous papers in law journals, mainly Spanish ones, like the Revista Española de Derecho Internacional or Diario La Ley, but also in foreign magazins like The European Legal Forum or Era Forum. She belongs to the Group of research De Conflictu Legum.

Regulation (EU) No 1329/2014 – Forms in Matters of Successions

The Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council 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 has been published today.

Click here to access OJ L 359.

Council Decision of 4 December 2014, on the approval of the Hague Convention of 30 June 2005 (OJ)

The Council Decision of 4 December 2014, on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements, has been published today (see OJ L 353).

The President of the Council is authorised to designate the person(s) empowered to deposit the instrument of approval provided for in Article 27(4) of the Convention, which shall take place within one month of 5 June 2015. The  date of entry into force for the Union of the Convention will be published in the Official Journal of the European Union by the General Secretariat of the Council.

Ortolani’s View on the Wathelet Opinion

The AG opinion on Gazprom has triggered quite a lot of reactions within the arbitral world. I asked Dr. Pietro Ortolani, senior research fellow at the MPI Luxembourg, to allow me to have his published in CoL as well. Here they are.

The Advocate General’s Opinion on C-536/13 Gazprom raises several interesting points, but it is doubtful whether the same approach will be adopted by the CJEU. Interestingly enough, it relies heavily on the recast Regulation, although it is not applicable ratione temporis. The AG argues that the recital operates in the manner of a “retroactive interpretative law”; however, this seems quite far-fetched, as a recital is not a binding provision of the Regulation and, as such, it should not be interpreted as having drastic effects on the way the Brussels I system operates (especially as far as the pre-recast scenarios are concerned). Two points in the Opinion are likely to trigger further debate:

  • The main argument is that, since judgments on the existence and the validity of the arbitration agreement only do not circulate under the Recast Regulation, then an anti-suit injunction is not incompatible with the Brussels I system. This argument implies that anti-suit injunctions are only incompatible with Brussels I inasmuch as they prevent MS Courts from issuing a judgment which could circulate under the Regulation: hence, if the judgment does not circulate, there would be no incompatibility. However, Brussels I regulates not only the circulation of judgments, but also the allocation of jurisdiction: therefore, in order to determine whether a problem of compatibility arises, it is necessary to analyse the issue in this broader context. Inasmuch as the main subject matter falls within the scope of application of the Regulation, each Member State Court is put on an equal footing and cannot be deprived of the power to assess its own jurisdiction under the Regulation. Whenever one of the parties raises an exceptio compromissi, the court also has to decide on that point, in order to determine whether it has jurisdiction. An anti-suit injunction, therefore, affects not only the possibility for a Member State Court to determine whether the arbitration agreement exists and is valid or not, but also the possibility to subsequently assess the jurisdiction under the Regulation. These two aspects cannot be drastically divided, as they form part of the same assessment on jurisdiction. Therefore, consistently with the subject-matter criterion, it does not seem possible to simply rely on recital 12(2) (which by the way refers to the application of the recognition and enforcement part of the Regulation, rather than jurisdiction) in order to argue that under the Recast Regulation anti-suit injunctions, ordered either by a court or an arbitral tribunal, do not create any problem of compatibility.
  • In my opinion, the principle of mutual trust forms part of EU public policy. It is the backbone of the Brussels I system, and hence the foundation for a uniform system of jurisdiction and circulation of judgments in civil and commercial matters in the Union. Although according to the AG these provisions “do not compare with respect for fundamental rights”, they serve the fundamental purpose of setting forth a European mechanism of justice in civil and commercial matters, in accordance with the goal of enhancing access to justice. Furthermore, the public policy status of mutual trust is evinced by the Regulation itself, according to which the public policy test at the recognition and enforcement stage does not apply to jurisdiction. Hence, the requested Member State Court cannot re-assess the jurisdiction of the first Court, but it is bound to accept it. This entails that there can never be an assessment of jurisdiction by a Member State Court which runs contrary to public policy, because of mutual trust. The Regulation, in other terms, sets forth an absolute presumption of compatibility of the first Court’s assessment with public policy. But then, if that is the case, we must conclude that mutual trust must form part of public policy itself, in order to justify such absolute presumption and to impose a limit to the public policy ground for denial of recognition and enforcement under the Regulation. In this sense, the AG did not take into account several arguments arising out of the Recast, such as the fact that the abolition of exequatur clearly militates in favour of a reinforcement of the principle of mutual trust, rather than its marginalization.

In any case, the Opinion offers many extremely interesting insights on the complex interplay between arbitration and court litigation in the EU. It remains to be seen whether the Court will consider the questions admissible – in the case at hand, that is quite debatable. As a follow-up to this debate, I take the chance to refer you to the forthcoming EU Parliament Study on the legal instruments and practice of arbitration in the EU, to which I have contributed with Tony Cole from Brunel University.

Antisuit Injunctions by Arbitral Tribunal and Recognition: Opinion of AG Wathelet

The Opinion of AG Wathelet on C-536/13, Gazprom, referred by the Lietuvos Aukšciausiasis Teismas, was delivered yesterday  and reads as follows:

(1)      Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not requiring the court of a Member State to refuse to recognise and enforce an anti-suit injunction issued by an arbitral tribunal.

(2)      The fact that an arbitral award contains an anti-suit injunction, such as that at issue in the main proceedings, is not a sufficient ground for refusing to recognise and enforce it on the basis of Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958.

The whole document is accesible here.

(A personal bet: the ECJ will not take up the second point of the Opinion).

Dealing with Diversity in International Arbitration

We are pleased to announce a forthcoming TDM special issue on “Dealing with Diversity in International Arbitration.”  This Special Issue will analyse discrimination and diversity in international arbitration. It will examine new trends, developments, and challenges in the use of practitioners from different geographical, ethnic/racial, religious backgrounds as well as of different genders in international arbitration, whether as counsel or tribunal members.

International arbitration has experienced substantial growth in the past two decades.   The ascendance of international arbitration as a preferred method of resolving disputes between international parties is the product of the growth of world economies and the increased participation in global commerce of emerging markets.  The rise of many states as major investment destinations and the expansion of multinational corporations into new markets have increased business opportunities, and thus the numbers of business disputes worldwide.

The high demand for arbitration (and other forms of ADR) services, in turn, has driven many governments to cultivate a pro-arbitration environment through new arbitration legislation and other mechanisms, and has led to the proliferation of international arbitral centres throughout the world but particularly in Asia (including in Singapore, Hong Kong and elsewhere).  Likewise, many global law firms have also responded to this increased demand by aggressively entering new markets and deploying significant resources to those emerging regions.

The expansion of international arbitration into new regions as well as steady growth in more established markets has not, however, been reflected in the greater participation of a greater variety of practitioner whether female or non-European/American or from different ethnic and religious backgrounds. Women are not getting the same opportunities as men, regardless of background. Of equal concern is the fact that practitioners from non-European/American backgrounds or in regions such as Africa and Asia are not getting the same opportunities as their European and American counterparts. In that regard, Islamic Finance Arbitration is a growing field where regional and religious backgrounds may play a role. Only time will tell if that area will be over represented by a homogenous type of arbitrator and counsel.

 Statistics published by arbitral institutions indicate quite strongly that, more generally, there is a severe imbalance in the vast number of appointments whether by parties or by the institution concerned. The appointment of European and American arbitrators usually account for a large chunk of the pie chart with the thinnest, barely visible slivers representing arbitrators from other regions or ethnicity. Further analysis of the numbers indicates that things are not really improving.

 This TDM Special Issue will provide international practitioners and academics with an overview of the overall position of diversity in international arbitration.

Possible topics for submission to the special issue might include:

  • Why an increase in work in the international arbitration area of practice has not lead to the commensurate growth in participation by a more diverse group of practitioners – this might include not only the male/female divide but also the African / Asian / European / American divide;
  • Does limiting the field of international arbitration players mean that the scope of the decisions made at all levels are also being limited?
  • Are legal sector reforms necessary to improve the diversity; are quotas a good thing?
  • How can the pro-arbitration culture be replicated in a pro-diversity argument;
  • Prospect of a fairer representation of participants covering gender, ethnicity, regions and religion in international arbitration;
  • Obstacles for the discriminated groups preventing them from getting on in the international arbitration area of practice and how they can be overcome;
  • Nature of and empirical study of geographical/regional, ethnic/racial and male/female diversity in international arbitration;
  • The impact of differing levels of participation in international arbitration on business dispute resolution and the effect of cultural norms on the practice of international arbitration; and
  • Influence of dispute resolution culture / traditions.

This special issue will be edited by Professor Rashda Rana SC (Barrister, Arbitrator at 39 Essex Street Chambers, President ArbitralWomen) and Louise Barrington (Independent Arbitrator and Director Aculex Transnational Inc) with the assistance of the Edition Committee including Karen Mills (Partner Karim Syah Indonesia) and Gabrielle Nater Bass (Partner Homburger Switzerland).

For further information click here.

Recent Case Law of the ECtHR in Family Law Matters

The ERA (Trier) proposes a conference on recent case law of the ECtHR in family law matters, in Strasbourg, 18-19 February 2015. 

Participants will have the opportunity to attend a hearing of the Grand Chamber.

The spotlight is centered on Article 8 (respect for family life) in conjunction with Article 14 (prohibition of discrimination) and Article 12 (right to marry).

Key topics

To be understood taking into account that case law of the ECtHR concentrates not only on the legal implications but also on social, emotional and biological factors.

  • International child abduction 
  • Balancing the children’s rights, parents’ rights and public order
  • Adoption
  • Surrogacy parenthood
  • Recognition of parent-child relations as a result of surrogacy
  • Child custody and access rights within parental authority
  • Recognition of marriage and civil unions in same-sex relationships

Who should attend?

Lawyers specialised in family law, human rights lawyers, judges dealing with family law matters, ministry officials, representatives of NGOs and child’s rights organisations.

 

For further information click here.

 

 

ADR & ODR in the EU- Joint Conference ERA&MPI Luxembourg

2015 will be a landmark year for the debate on ADR & ODR. The Directive on Alternative Dispute Resolution (ADR) will have to be transposed into national legislation by 9 July 2015; the Online Dispute Resolution (ODR) platform will become operational six months later.

The conference, jointly organized by the ERA and the MPI Luxembourg and taking place in Trier, will discuss at an early stage the existing proposals for transposing the requirements of the ADR Directive into national law.

Key topics

  • In-depth analysis of the legal and practical issues regarding the implementation of the Consumer Alternative Dispute Resolution Directive

  • Forthcoming changes after the entry into force of the Regulation on Consumer Online Dispute Resolution

Speakers: Karin Basenach, Director, European Consumer Centre Luxembourg; Juan Bueso, Legal Adviser, European Consumer Centre Ireland, Dublin; Alessandro Bruni, Attorney-at-Law, Professional Mediator and Arbitrator, Rome; Dr Pablo Cortés, Attorney-at-Law, Senior Lecturer, School of Law, University of Leicester; Christoph Decker, DG Justice and Consumers, European Commission, Brussels; Marie Luise Graf-Schlicker, Ministerial Director, Federal Ministry of Justice and Consumer Protection, Berlin; Professor Burkhard Hess, Director, Max Planck Institute for; International, European and Regulatory Procedural Law, Luxembourg; Professor Christopher Hodges, Professor of Justice Systems, University of Oxford;Ulrike Janzen, Head of Division, Federal Ministry of Justice and Consumer Protection, Berlin; Nathalie Jouant, Attachée, DG Economic Regulation – Consumers & Entreprises Unit, FPS Economy, Brussels; Augusta Maciuleviciute, Senior Legal Officer and Consumer Redress Leader, BEUC, Brussels; Dr Rafa? Morek, Adjunct Professor, University of Warsaw, Of Counsel, K&L Gates LLP, Warsaw; Nicole Nespoulous, DG Competition Policy, Consumer Affairs and Fraud Control, Ministry of Finance, Paris; Marie-Josée Ries, Director, DG Internal Market, Ministry of Economy, Luxembourg.

Click here to see the program , here for practical further information.


 Language: English
 Organisers: Dr Angelika Fuchs, ERA with the support of Professor Burkhard Hess, Max Planck Institute Luxembourg
Event number: 115D31

To steward or not to steward, that is the question

Some thoughts on the ATS by James Armstrong. James has been working internationally as a business process coordinator responsible for a major Oil and Gas company since 2000 in countries such as Korea, Angola, Malaysia and more recently Papua New Guinea. He is currently working as an advisor, and completing an LLM on international law with a focus on Conflicts of law and the application and use of the ATS.

The Alien Tort Claims Act (ATS) was passed in 1789 and did in effect sit on the statute shelves for nearly two centuries, until the Filartiga case. The main impact of this Act has been to grant US Federal Courts the ability to hear cases dealing with private claims for a reasonable number of international law violations, provided they are in breach of the Law of Nations or a treaty of the United States. The synergy between ATS and conflicts of law issues, I would suggest, have now come to forefront; forum shopping has been seen as a defining factor with the applications of ATS and the US courts have recently, in the Kiobel case, provided us rules, namely the “touch and concern”, that would seem, prima facie, to bring ATS in line with the British rules on conflicts of law. After all jurisdictional questions are about selecting the correct forum.

A recent case which has some significance here is Al Shimari v  CACI[1], where Iraq national brought a case against CACI and L-3 services for torts, namely torture, war crimes, crimes against humanity, sexual assault and cruel, inhuman treatment[2]. The plaintiffs were former prisoners at the Abu Ghraib prison in Iraq; this prison was run and managed by US military personnel and or their contractors from 2003 until 2006; it has now been closed[3]. The plaintiffs claim that they suffered mistreatment at the hands of the servicer personnel and contractors responsible for the management of the prison and the prisoners. This case is significant as Justice Breyer[4] made the statement that the “claim” must “touch and concern”, therefore extended, correctly so, the rationale behind the application of the “touch and concern” rule developed by Kiobel. He went further to look at the parties and indicated that that US Congress had taken a strong position against the offense of torture and had created a statute dealing specifically with Torture, the Torture Victims Protection Act 1991. The key distinction between Kiobel and CACI is that CACI is an American corporation; the senior management are located within America; the employees for the prison where recruited in America; the senior management were made aware of the actions and events that had taken place in the prison. Adding all these elements up Justice Breyer concluded that congress has taken a strong position against torture and wanted to ensure that any American participating in such act would be brought to justice[5]. America should steward Americans: citizenship is a key factor.

Recently the American courts have applied the rules initially defined within Kiobel and subsequently applied and developed in CACI[6] to the Chevron[7] case. On reading this case the failings of the court to apply their own rules became apparent: they have failed to take into consideration not only the application of forum selection, as per their own rulings, but they have also failed to demonstrate a desire to steward their own, Americans, when their actions have, or may have, breached internationally accepted standards and laws. Stewardship of a countries individual, both natural and legal, should, I would suggest, be paramount when looking at the conflicts and trying to assess jurisdictional applications.

In my view, the US Courts are now demonstrating a desire -or at least are heading down a route- to remove the rational and possibility of giving jurisdiction for actions under ATS as opposed to looking to steward and control the actions of their own citizens, be these natural or legal. I was appalled to read the views of the Second Circuit Court of Appeals in Mastafa v. Chevron Corp[8]. This, as I am assure your are aware, was a joint case with Chevron and BNP claiming that they had aided and abetted human rights abuses by the Government of Iraq during the Saddam Hussein’s regime. This case was brought under the ATS; the court looked to apply the decision from Kiobel[9] and stated that the citizenship, element as identified in CACI[10], was not relevant. They reiterate that for a case to be given jurisdiction by ATS it must a) touch and concern the United States with sufficient force to displace the presumption against extraterritoriality and: b) demonstrate that the conduct, prima facie, breaches a law of nations or treaty of the United States.

The main issue, I would suggest, for the application of ATS is now the disagreement between the second and fourth circuit on the application of citizenship -the second circuit court clearly stating that the citizenship should have no bearing on the application of “touch and concerns”.

I would suggest this is wholly wrong: a given country should take responsibility for stewarding the actions of their own citizens, especially when the other country has a less than acceptable legal system. I believe this view is in alignment with the UK courts and the views expressed by Justice Breyer in the CACI case; I would further suggest that this should be of paramount importance, and therefore this is a fundamental failing by the court that will adversely affect the ability of the courts to hear cases under ATS.

In the recent case of Abdul-Hakim Belhaj[11] the [UK] Court of Appeal has clearly indicated that there if no remedy is left open the home country should be able to hear the case; they were actually considering action against UK officials and agencies, here we are looking for the American courts to steward their own citizens, both legal and natural. I would go further and state that the American courts could well learn from the view taken by the [UK] Court of Appeal, who considered the implications of not accepting jurisdiction, and stated that this would have an adverse effect on the international view on British justice[12].

I therefore put it forward that the courts have not applied the findings in Kiobel correctly, as discussed and applied by CACI. Kiobel states that a “mere corporate presents”[13] should not be an indication of jurisdictionally liability; Shell only has a minor office in the USA and is in fact a Dutch company, not a wholly owned American corporation. This view is correct: a mere presence should not give arise to jurisdiction; however, Chevron has more than a mere presence and therefore the Court is in error regarding this element. Chevron can be identified as being an American corporation all the way back to 1876[14], unlike Shell which shows that its history and heritage is outside the USA[15].

At the end of the day, it seems that major corporations and the dollar are openly controlling the US courts: CACI is a small company with lots of media attention; Chevron is a major international oil company that brings in billions of dollars into the American market.

These are my views on what I can only describe as a vibrant and interesting time, although things are not moving in the right direction here. This reminds me of a favorite phrase of mine

“The only thing necessary for the triumph of evil is for good men to do nothing.” ? Edmund Burke

[1] Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al-Ejaili; Asa’ad Hamza Hanfoosh Al Zuba’e v CACI Premier Technology, Inc. CACI International, Inc. 13-1937

[2] www.business-humanrights.org/en/abu-ghraib-lawsuits-against-caci-titan-now-I-3-0#c17777

[3] http://www.nytimes.com/2014/04/16/world/middleeast/iraq-says-abu-ghraib-prison-is-closed.html?_r=0

[4] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) Justice Breyer Opinion, Chapter 2 , B

[5]Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al-Ejaili; Asa’ad Hamza Hanfoosh Al Zuba’e v CACI Premier Technology, Inc. CACI International, Inc. 13-1937 page 31

[6] Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al-Ejaili; Asa’ad Hamza Hanfoosh Al Zuba’e v CACI Premier Technology, Inc. CACI International, Inc. 13-1937

[7] Mastafa v. Chevron Corp., No. 10-5258-cv, 2014 WL 5368853 (2d Cir. Oct.23, 2014)

[8] Mastafa v. Chevron Corp., No. 10-5258-cv, 2014 WL 5368853 (2d Cir. Oct.23, 2014)

[9] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013)

[10] Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al-Ejaili; Asa’ad Hamza Hanfoosh Al Zuba’e v CACI Premier Technology, Inc. CACI International, Inc. 13-1937

[11]Belhaj & Boudchar -v- The Rt. Hon Jack Straw, Sir Mark Allen (CMG) and others [2014] EWCA Civ 1394

[12] Belhaj & Boudchar -v- The Rt. Hon Jack Straw, Sir Mark Allen (CMG) and others [2014] EWCA Civ 1394, para 120

[13] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) Para 14 IV

[14] http://www.chevron.com/about/history/1876/

[15]http://www.shell.com/global/aboutshell/who-we-are/our-history/the-beginnings.html

International Seminar on Private International Law, Madrid 2015

The 9th International Seminar on Private International Law promoted by Professor Fernández Rozas and Professor De Miguel Asensio (University Complutense, Madrid), has been scheduled for May 22 next year.

This edition’s speakers will be, among others, Prof. Burkhard Hess (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Bertrand Ancel (Université Paris II), Franco Ferrari (New York University) and Louis D’Avout (Université Paris II). Short contributions from academics and law professionals are welcome provided they are timely submitted. In this regard the organizers kindly request those intending to participate to send an email to Professor Patricia Orejudo (patricia.orejudo@der.ucm.es) as soon as possible, in any event not later than December 15, 2014, including the title of the proposal and a brief summary of its contents. Accepted papers will be eligible for publication in the Anuario Español de Derecho Internacional Privado, subject to prior scientific peer evaluation.

The definitive program, schedule of presentation, venue and further details on organization will be announced here as soon as they become available.