Author Archives: Xandra Kramer

EP Paper on future of European Private International Law

In a workshop of the European Parliament’s JURI Committee on Upcoming issues of EU Law, that took place on 24th September, papers were presented on five selected topics: the application of EU Law (Wolfgang Heusel), the implementation of EU law (Marta Ballesteros), European private international law (Xandra Kramer), intellectual property law (Lionel Bently and Alfred Radauer) and regulating robotics (Andrea Bertolini and Erica Palmerini).The workshop focused on work that has been accomplished in the past and challenges for the current legislature (2014-2019). The compilation of papers is available here.

For those readers only interested in private international law, the paper entitled European private international law: the way forward, is also available here.

For those readers that did not know yet, early this summer ‘Codifying Choice of Law Around the World’ (OUP, 2014) authored by Symeon Symeonides, was published. One can only agree with Lawrence Collins in the foreword to this book that it is ‘a truly monumental contribution to the study of codification in the conflict of laws’.

The blurb reads:

9780199360840_140Codifying Choice of Law Around the World chronicles, documents, and celebrates the extraordinary, massive country-by-country codification of Private International Law (PrIL) or Conflict of Laws that has taken place in the last 50 years from 1962-2012. During this period, the world has witnessed the adoption of nearly 200 PrIL codifications, EU Regulations, and international conventions—-more than in all preceding years since the inception of PrIL. This book provides a horizontal comparison and discussion of these codifications and conventions, firstly by comparing the way they resolve tort and contract conflicts, and then by comparing the answers of these codifications to the fundamental philosophical and methodological dilemmas of PrIL. In the process, this book re-examines and dispels certain widely held assumptions about choice of law, and the art and science of codification in general.

More information is available here.

Issue 2014.1 Nederlands Internationaal Privaatrecht

The first issue of 2014 of the Dutch journal on Private International Law Nederlands Internationaal Privaatrecht includes an analysis of the Brussels I Recast and the influence on Dutch legal practice, an article on Child abduction and the ECHR,  and two case notes; one on the Impacto Azul case and one on the Povse case.

  • Marek Zilinsky, ‘De herschikte EEX-Verordening: een overzicht en de gevolgen voor de Nederlandse rechtspraktijk’, p. 3-11. The English abstract reads:

From 10 January 2015 onwards the Brussels I Recast (Regulation No. 1215/2012) shall apply. Under the new regulation which replaces the Brussels I Regulation (Regulation No. 44/2001), the exequatur is abolished and some changes are also made to provisions on jurisdiction and lis pendens. This article gives an overview of the changes effected by the Brussels I Recast compared to the proposed changes in the Proposal for a new Brussels I Regulation (COM(2010) 748 final). The consequences of the new regulation for Dutch practice are also dealt with briefly.

  • Paul Vlaardingerbroek, ‘Internationale kinderontvoering en het EHRM’, p. 12-19. The English abstract reads:

With the Neulinger/Shuruk decision in 2009, the European Court of Human Rights caused a great deal of misunderstanding and confusion among judges and academics, because in this case the ECHR seemed to protect the abductors of children and to allow them to benefit from their misconduct. After the Neulinger case some further ECHR decisions followed that seemed to compete with the fundamental purposes of the Hague Convention on child abduction, but in this paper I will try to show that in more recent cases the European Court has mitigated the hard consequences of the Neulinger/Shuruk decision and has given a new direction in how to proceed and decide when the two conventions seem to compete.

  • Stephan Rammeloo, ‘Multinationaal concern – Aansprakelijkheid van moedervennootschap voor schulden van dochtervennootschap: nationaal IPR (‘scope rule’) getoetst aan Europees recht (artikel 49 VWEU)’, p. 20-26. Case notes European Court of Justice 20-06-2013, Case C-186/12 (Impacto Azul), The English abstract reads:

In June 2013 the CJEU delivered a preliminary ruling under Article 49 TfEU with regard to the exclusion, under national law, of an EU Member State from the joint and several liability of parent companies vis-à-vis the creditors of their subsidiaries in a crossborder context. Article 49 TfEU does not prohibit any such exclusion resulting from a self-restricting unilateral scope rule under the national Private International Law of an individual EU Member State. The interpretative ruling of the Court does not, however, affect cross-border parental liability for company group members under Private International Law having regard to contractual or non-contractual (cf. tort, insolvency) liability.

  • Monique Hazelhorst, ‘The ECtHR’s decision in Povse: guidance for the future of the abolition of exequatur for civil judgments in the European Union’, p. 27-33. Case notes European Court of Human Rights 18 June 2013, decision on admissibility, Appl. no. 3890/11 (Povse v. Austria). The abstract reads:

The European Court of Human Rights’ decision on admissibility in Povse is worthy of analysis because it sheds light on the preconditions for the abolition of exequatur for judgments in civil matters within the European Union. The abolition of this control mechanism is intended to facilitate the free movement of judgments among Member States on the basis of the principle of mutual recognition. Concerns have however been expressed about the consequences this development may have for the protection of fundamental rights. The Human Rights Court’s Povse decision provides welcome guidance on the limits imposed by the European Convention on Human Rights on the abolition of exequatur. This case note analyses the preconditions that may be inferred from the decision. It concludes that the Human Rights Court’s approach leaves a gap in the protection of fundamental rights which the accession of the EU to the Convention intends to fill.

Nagy on the law of companies and freedom of establishment

Csongor István Nagy (Budapest University of Technology and Economics) has posted The Personal Law of Companies and the Freedom of Establishment Under EU Law. The Enthronement of the Country-of-Origin Principle and the Establishment of an Unregulated Right of Cross-Border Conversion, published in the Hungarian Yearbook of International Law and European Law 2013 on SSRN.

This paper presents, from a critical perspective, the development of the CJEU’s case-law on the collision between the personal law of companies and the freedom of establishment with special emphasis on the CJEU’s recent judgment in VALE.
It is argued that this ruling treats the incorporation theory as ‘the law of the land’, putting an end to the explanation that EU law does not establish a connecting factor, the determination of which is a Member State competence, but simply precludes some plights that frustrate the freedom of establishment. Furthermore, the case-law on the personal law of companies is put in the context of the country-of-origin concept as a general and fundamental principle of EU law. It is argued that although the incorporation theory fits better the system of the internal market characterised by free movement rights, as a general proposition, the categorical application of this principle to all fields of private law suppresses conflicts analysis and, as such, is a dubious development. Conflicts problems should receive a conflicts law answer. The oversimplified application of the country-of-origin principle, though certainly warranted in the field of public law, does away with private international law problems without carefully examining and adequately solving them.
Furthermore, it is also argued that in Cartesio and VALE the CJEU seems to have created an unregulated right of cross-border conversion. In Cartesio, the Court established a right of ‘departure’, i.e. companies have the right to move their seat to another Member State in order to convert into the legal person of the receiving country, while losing their original legal personality. In VALE, the CJEU seems to have established a right of ‘arrival’, derived from the principle of non-discrimination. However, EU law prescribes only the theoretical possibility of conversion (‘departure’ and ‘arrival’), and leaves the technicalities of this conversion to national law.

Issue 2013.4 Nederlands Internationaal Privaatrecht

The fourth issue of 2013 of the Dutch journal on Private International Law Nederlands Internationaal Privaatrecht includes two contributions on the Commission Recommendation on Collective Redress and an article on the obligations of parties with regard to pleading and contesting jurisdiction under the Brussels I Regulation in the Netherlands.

Astrid Stadler, ‘The Commission’s Recommendation on common principles of collective redress and private international law issues’, p. 483-488. The abstract reads:

For its new policy on collective redress the European Commission has chosen the form of a mere ‘Recommendation’ instead of a binding directive or regulation with respect to the violation of (consumer) rights granted under EU law. The Recommendation provides some basic principles on collective redress instruments which should be taken into account by the Member States when implementing injunctive or compensatory collective redress mechanisms. There is, however, no obligation for the Member States to implement such procedural tools. Despite the attempt at establishing common principles, the European legislature thus seems to accept a heterogeneous landscape of collective redress in Europe and has missed the opportunity to provide rules on international jurisdiction, recognition and the applicable law particularly designed for cross-border mass litigation. As a consequence forum shopping becomes even more important for plaintiffs in mass damage cases.

Mick Baart, ‘Implications of Commission Recommendation 2013/39 on common principles for collective redress. Can safeguards limit the potential for abuse without compromising the realization of policy goals?’, p. 489-498. The abstract reads:

The recent publication of Recommendation 2013/39 seeks to establish a common European approach to collective redress. In response to concerns that collective procedures may introduce opportunities for abuse, the European Commission included a number of procedural safeguards. However, can these safeguards limit the potential for abuse without hindering the achievement of policy goals? This article evaluates this question from the perspective of group formation since opt-out procedures have traditionally been perceived as an important factor in abusive practices. The Recommendation accordingly considers the use of opt-in procedures to be an essential safeguard against abuse. Nonetheless, the rejection of opt-out procedures appears to entail an inherent paradox as it reduces the potential for abuse but simultaneously presents significant obstacles to the effectiveness of collective procedures. Moreover, it could have unintended consequences for questions of private international law as Member States that actively use opt-out mechanisms are not obliged to comply with a non-binding Recommendation.

Jacques de Heer, ‘De stelplicht van eiser en gedaagde in geschillen voor de Nederlandse rechter over internationale bevoegdheid op grond van de EEX-Verordening’, p. 499-507. The English abstract reads:

In cross-border contentious proceedings, the plaintiff only has a conditional obligation to show that the court in which proceedings are brought has jurisdiction. This condition follows from Article 24 of the Brussels I Regulation, which deals with jurisdiction through submission to the forum. When the defendant wishes to contest the jurisdiction of the court, he is under no immediate obligation to argue why this is so. However, if the factual arguments put forward by the plaintiff to found the jurisdiction of (for example) the Dutch court remain uncontested, this court has to consider these facts when deciding on its jurisdiction. In so deciding, the court is not bound by the jurisdictional rules of the Brussels I Regulation as mentioned by the defendant. When the defendant only raises a defence of concurrent proceedings in another Member State, he is obliged to immediately state the relevant facts.

Publication book Resolving Mass Disputes

An interesting book entitled Resolving Mass Disputes. ADR and Settlement of Mass Claims, edited by Christopher Hodges (Centre for Social-Legal Studies, Oxford/Erasmus University Rotterdam) and Astrid Stadler (University of Konstanz/Erasmus University Rotterdam) has just been published (Edward Elgar, 2013).

The blurb reads:

The landscape of mass litigation in Europe has changed impressively in recent years, and collective redress litigation has proved a popular topic. Although much of the literature focuses on the political context, contentious litigation, or how to handle cross-border multi-party cases, this book has a different focus and a fresh approach.

Taking as a starting-point the observation that mass litigation claims are a ‘nuisance’ for both parties and courts, the book considers new ways of settling mass disputes. Contributors from across the globe, Australia, Canada, China, Europe and the US, point towards an international convergence of the importance of settlements, mediation and alternative dispute resolution (ADR). They question whether the spread of a culture of settlement signifies a trend or philosophical desire for less confrontation in some societies, and explore the reasons for such a trend.

Raising a series of questions on resolving mass disputes, and fuelling future debate, this book will provide a challenging and thought-provoking read for law academics, practitioners and policy-makers.

Contributors include: I. Benöhr, N. Creutzfeldt-Banda, M. Faure, D.R. Hensler, C. Hodges, J. Hörnle, J. Kaladjzic, X. Kramer, M. Legg, R. Marcus, A. Stadler, I. Tzankova, S. Voet, Z. Wusheng.

More information is available here.

Latest issue Nederlands Internationaal Privaatrecht (2013/3)

The third issue of 2013 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht, includes the usual overview of important Dutch and European case law, as well as three articles on the following topics: The functioning of the European Small Claims Procedure in the Netherlands; the EU Regulation on Succession and Wills; and Child Protection Measures against the background of Article 8 ECHR.

X.E. Kramer & E.A. Ontanu, The functioning of the European Small Claims Procedure in the Netherlands: normative and empirical reflections, p. 319-328. The abstract reads:

The European small claims procedure was the first uniform adversarial procedure in the EU, introduced to increase the efficiency and to reduce the costs of cross-border small claims litigation in the Member States. The European Commission regards this procedure as an important potential contribution to access to justice in order to resolve small claims disputes. However, there are clear signs that this procedure is seldom used and the Commission seeks to improve its attractiveness. This paper focuses on the implementation and application of this European procedure in the Netherlands. Normative and empirical research has been conducted to assess how this procedure is embedded in the Dutch legal order and how it actually functions in practice and is perceived by the judiciary. The question is whether, from the Dutch perspective, this procedure meets the objectives of providing a simple, fast and low-cost alternative to existing national procedures, while respecting the right to a fair trial. The paper concludes with several recommendations for improvement.

 P. Lokin, De Erfrechtverordening, p. 329-337. The English abstract reads:

This article focuses on (EU) Regulation No. 650/2012 dealing with the jurisdiction, applicable law, recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession. Is this Regulation, which shall be applicable to the succession of persons dying on or after 17 August 2015, a step forward for the Netherlands? In light of its application in the near future, the article gives a first introduction into the new rules and concentrates on some aspects of the Regulation which require more attention, such as the determination of one’s last habitual residence and the transitional provisions when the deceased has made a choice for the applicable law prior to 17 August 2015.

R. Blauwhoff, Kinderbeschermingsmaatregelen in de Nederlandse IPR-rechtspraak in het licht van artikel 8 EVRM, p. 338-345. The English abstract reads:

Both private international law and human rights instruments may affect parental and children’s rights in cross-border situations, yet reference to both types of instrument is seldom made in Dutch legal decisions regarding parental responsibilities. Accordingly, the aim of this article is foremost to explore the relationship between both types of instruments in cases other than child abduction cases on the basis of an analysis of (Dutch) case-law, since the entry into force of the 1996 Convention on the International Protection of Children (1st of May 2011) and under reference to developments in case-law of the European Court of Human Rights (ECtHR) with regard to Article 8 ECHR. It is ventured that courts should have greater regard for the human rights dimension underpinning private international law decisions, especially in cases where tension arises between the law of the state of the child’s present and former habitual residence. At the same time, the classic focus of the ECtHR on the accountability of national states sometimes falls short of taking into account the progress made in the field of cross-border co-operation in the ambit of the 1996 Hague Convention, especially in the area of cross-border contact arrangements.

Issue Dutch Commercial Law journal on international financing

For our readers who are able to read Dutch: The second issue of 2013 of the Dutch journal on Commercial Law, Nederlands Tijdschrift voor Handelsrecht (NTHR), is an interesting issue dedicated to developments in international financing. It includes the following five contributions:

  • J. Diamant, ‘Macht’, ‘bezit’ en ‘controle’: gedachten over het controlevereiste in de Collateral Richtlijn, p. 60-67.
  • R.M. Wibier, Financiering op basis van vorderingen: de positie van het vorderingsrecht in het Burgerlijk Wetboek, p. 68-74.
  • T.H.D. Struycken, Zekerheidsrechten in het internationale handelsverkeer, p. 75-87.
  • P.M. Veder, Zekerheidsrechten en de Insolventieverordening: op zoek naar balans, p. 88-93.
  • R.D. Vriesendorp & R. van den Sigtenhorst, Herstructureringen in de moderne financieringspraktijk: Nederland vs. de V.S., p. 94-101.

Commission Recommendations collective redress

After years of intensive debates on either sectoral instruments or a horizontal instrument, the European Commission released its long-awaited communication on collective redress on 11 June 2013. To those that have followed the discussions, it will not come as a surprise that the Commission is not proposing a harmonised horizonal EU collective procedure. Instead, it recommends a  series of common, non-binding principles for collective redress mechanisms in the Member States that – in the words of Justice Commissioner Viviane Reding – respects the very different traditions in the Member States. The press release, text of the communication and recommendations are available  here. The news item reads as follows:

The European Commission has today set out a series of common, non-binding principles for collective redress mechanisms in the Member States so that citizens and companies can enforce the rights granted to them under EU law where these have been infringed. The Recommendation aims to ensure a coherent horizontal approach to collective redress in the European Union without harmonising Member States’ systems. National redress mechanisms should be available in different areas where EU law grants rights to citizens and companies, notably in consumer protection, competition, environment protection and financial services. By recommending to Member States to put in place national collective redress mechanisms the Commission wants to improve access to justice, while ensuring appropriate procedural guarantees to avoid abusive litigation. The Recommendation complements the proposal for a Directive on antitrust damage actions (see IP/13/XXXX) harmonising procedural law issues relating to private enforcement other than collective redress.

Let the (academic) debate continue!

Thanks to Steefan Voet, University of Ghent for the ‘tip-off’.

Van Calster on European Private International Law

Geert Van Calster, Professor at the University of Leuven, authored a new text book on European Private International Law t has just been published:  Geert Van Calster, European Private International Law, Hart Publishing 2013 (382 pages). This book is a valuable addition to the existing text books on European Private International Law. It focuses on those instruments and developments that are most important in the commercial area.

The blurb reads:

Usable both as a student textbook and as a general introduction for legal professionals, European Private International Law is designed to reflect the reality of legal practice throughout the EU. The private international law of the Member States is increasingly regulated by the EU, making private international law ever less ‘national’ and ever more EU based. Consequently, EU law in this area has penetrated national law to a very high degree, making it an essential area of study and an area of increasing importance to practising lawyers throughout the EU. This book provides a thorough overview of core European PIL, including the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort), while additional chapters deal with PIL and insolvency, freedom of establishment and corporate social responsibility.

More information is available here.