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.

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.

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.

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'.

Geert Van Calster, Professor at the University of Leuven, authored a new text book on European Private International Law that 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.

An issue of the theme-based peer-reviewed e-journal Erasmus Law Review (free access) dedicated to the topic ‘Law and Language; Implications for Harmonisation and Cross-Border Litigation’ has just been published. It includes five contributions, preceded by a short introduction. Simone Glanert, Europe Aporetically: A Common Law Without a Common Discourse. In response to the European Union's avowed ambition to elaborate a uniform European private law, some critics have maintained that uniformisation is illusory on account of the disparities between the governing legal languages within the different Member States. This objection has, in its turn, given rise to an argument according to which uniformisation could be ensured through the emergence of a common discourse. It has been said that such outcome is possible even in the absence of a common language. For the proponents of this claim, the theory of communicative action developed by Jürgen Habermas offers significant support. By way of reaction to the common-discourse thesis, this paper proposes to explain why it cannot be sustained and why one cannot usefully draw inspiration from Habermas's thinking in order to promote a uniform private law within the European Union. Astrid Stadler, Practical Obstacles in Cross-Border Litigation and Communication between (EU) Courts. In cross-border civil litigation the use of different official court languages causes severe problems when - at least one of the parties - is not familiar with the official language of the court, since the parties' constitutional right to a fair trial depends very much on the communication with the court. As a consequence, interpreters must often be used during the trials and hearings and legislatures have to decide to what extent legal documents should be translated. The article takes the position that the European legislature sometimes underestimates the language problem and does not always provide sufficient safeguards for the parties' right to be heard (in a language they can understand). In particular, the defendant's procedural rights often require a translation of documents in cross-border service of process and must take precedence over procedural economy. European regulations also tend to emphasise the cooperation between courts in different Member States without taking into consideration that there is often no common language and that many judges will not have the language skills to communicate with their colleagues. The use of standard forms available in the 23 official languages is no perfect solution for all situations. Elena Alina Ontanu & Ekaterina Pannebakker, Tackling Language Obstacles in Cross-Border Litigation: The European Order for Payment and the European Small Claims Procedure Approach. In cross-border litigation, language differences are one of the main obstacles preventing parties from taking action and defending their rights. The Regulations creating a European Order for Payment Procedure (EOP) and establishing a European Small Claims Procedure (ESCP) have introduced the first EU-wide procedures, the goals of which are to simplify, speed up, and reduce the costs of cross-border litigation; they also include an attempt to reduce language obstacles. However, the simplification they propose must not sacrifice parties' right of access to justice and fair trial. This paper addresses the question as to the way language obstacles in cross-border litigation are tackled by the EOP and the ESCP. It further seeks to determine the extent to which these instruments balance the aim to simplify the procedures by reducing language obstacles and the parties' right to a fair trial and access to justice. Christoph A. Kern, English a Court Language in Continental Courts. Most recently, several countries on the European continent have admitted, or are discussing to admit, English as an optional court language. This article provides some information about the background of these recent initiatives, projects and reforms, clarifies the idea on which they are based and explores the purposes they pursue. It then identifies in a theoretical way the various possible degrees of admitting English as a court language and the surrounding questions of practical implementation. These general issues are followed by a presentation of the initiatives, projects and reforms in France, Switzerland and Germany. Not surprisingly, the idea of admitting English as a court language has not only found support, but has also been criticised in legal academia and beyond. Therefore, the article then attempts to give a structured overview of the debate, followed by some own thoughts on the arguments which are being put forward. It concludes with an appeal not to restrict the arguments in favour of admitting English as a court language to merely economic aspects, but also to give due weight to the fact that admitting English may facilitate access to justice and may result in bringing back cases to the public justice system. Isabelle Bambust, Albert Kruger & Thalia Kruger, Constitutional and Judicial Language Protection in Multilingual States: A Brief Overview of South Africa and Belgium. The purpose of this contribution is to provide a very modest comparison of judicial language protection in South Africa and in Belgium. First of all, the authors sketch briefly the historical context and the constitutional status of languages in both countries. It is difficult to argue that one always has a right to use his or her own language. However, the use of language has clear links to constitutional rights such as the right to a fair trial. The authors then consider the rules on the use of languages in court generally and in criminal proceedings particularly. Belgium has strict rules on the use of language, and these rules are based on strong principles of territoriality and monolingualism. South Africa, on the other hand, has 11 official languages, not linked to territories, but in practice these languages do not all enjoy the same protection. The pragmatic approach by the South African courts is indicated with reference to the case law.

The fourth issue of 2012 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht, includes seven articles dedicated to the topic 'Party autonomy in international family law.' Maarja Torga, Party autonomy of the spouses under the Rome III Regulation in Estonia – can private international law change substantive law?, p. 547-554. The abstract reads: At the moment Estonia is preparing to join Council Regulation (EU)No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (hereafter: Rome III Regulation). Article 5 of the Rome III Regulation gives limited party autonomy to the spouses in divorce matters. However, regardless of the applicable law chosen by the parties, under Article 13 of the Rome III Regulation the Estonian courts would not have to grant a divorce if Estonian substantive law does not deem the marriage in question to be valid for the purpose of divorce proceedings. The present article evaluates the discretion of the Estonian judges to rely on Article 13 of the Rome III Regulation and the alternative courses of action for the spouses in order to avoid the application of the said provision. By using the Rome III Regulation as an example, the author takes the position that the extension of party autonomy in one field of Estonian private international law should lead to a gradual expansion of party autonomy in other fields of Estonian law, which at the moment is rather conservative in its treatment of non-traditional forms of marriage.  Ilaria Viarengo, The role of party autonomy in cross-border divorces, p. 555-561. The abstract reads: The Rome III Regulation allows spouses to choose the law applicable to their divorce. This choice represents a relevant change for a field which is traditionally regulated by provisions from which the parties cannot derogate. First of all, the article analyses the reasons that justify optio juris in the case of international divorce. The article furthermore examines the optio juris functioning and, in particular, it focuses on ways of assuring the full awareness of the parties and limitations to the choice. Although the Netherlands does not take part in the adoption of the Rome III Regulation, there are scenarios in which Dutch citizens might be affected by it, given that the Regulation has a ‘universal’ character. Finally, the article examines the role of the parties’ will in determining the law which is applicable to the financial consequences of the divorce and in particular in the conclusion of prenuptial agreements. Janeen M. Carruthers, Party autonomy and children: a view from the UK, p. 562-568. The abstract reads: This article examines the extent to which children, in proceedings affecting their transnational legal affairs, are entitled to express their views, and in what manner, at what time, and to what effect. Attention is paid to international standards set out in the United Nations Convention on the Rights of the Child, and to particular rules contained in international instruments such as Brussels II bis and the 1980 Hague Abduction Convention, and in unharmonised areas such as international family relocation. The influence which children increasingly may exert through the expression of their will is distinguished from the device of party autonomy as that concept generally is understood in private international law. The article shows that implementation of the policy of respecting children’s views varies among legal systems, rendering important the matter of forum. Anna Wysocka, How can a valid profession iuris be made under the EU succession Regulation? p. 569-575. The abstract reads: In the near future, the Succession Regulation will unify international succession law in the EU. Containing rules which have a universal nature, starting from August 17, 2015 it will almost entirely replace international succession rules which are currently in force in the Member States. The Succession Regulation allows for a professio iuris, which may be made even now as long as it complies with certain requirements. Which laws may be designated as applicable? In what form should a professio iuris be made? Which law applies to the material validity of the professio iuris? Must the choice of law be clearly expressed or may it be tacit? May it be modified or revoked? What if the professio iuris turns out to be invalid? The above questions are answered by comparing the provisions of the Succession Regulation with the Hague Convention, as well as domestic laws of countries currently allowing for professio iuris. Csongor István Nagy, What functions may party autonomy have in international family and succession law? An EU perspective, p. 576-586. The abstract reads: The article examines, from an EU perspective, what functions and considerations may justify party autonomy in the fields of international family and succession law. The article argues that in family and succession law the main function of party autonomy should be to tackle the uncertainties related to the applicable law (predictability), to protect vested rights and to ensure the operation of the country-of-origin principle. It is also submitted that this function is less relevant regarding matters connected to legal systems that contain uniform choice-of-law rules, like the Member States of the EU. Furthermore, the article also argues that in the EU the mutual recognition of the choice-of-law rules of the Member States may also justify party autonomy, especially in family and succession law. Maria Hook, Party autonomy – yes or no? The ‘commodification’ of the law applicable to matrimonial property relations, p. 587-596. The abstract reads: The party autonomy principle has met with some success in matrimonial property law, having been embraced, albeit with restrictions, by most civil law countries, but eschewed by the relevant statutory regimes of common law countries such as England and Australia. This article argues that the rationale for extending party choice to matrimonial property disputes is in need of re-examination. In particular, it submits that insufficient attention has been paid to the mechanism behind the party autonomy rule – the choice of law contract – and proposes a contractual framework of evaluation, founded on the choice of law agreement as a self-sufficient contract. This framework is used to determine whether, in the area of matrimonial property law, objective choice of law rules are mandatory in nature – that is, whether they seek to give effect to public policies that ought not be the subject of party choice. By importing contractual theory into the choice of law process, this article hopes to offer a principled alternative to the traditional, often narrowly-focused approach that has been taken to party autonomy in this area. Sagi Peari, Choice-of-law in family law: Kant, Savigny and the parties’ autonomy principle, p. 597-604. The abstract reads: This article offers an explanation for the emerging popularity of the parties’ autonomy principle in the area of family law. It will be argued that Friedrich Carl von Savigny’s divergence from Kant in the area of family law is what underlies the reluctance of different jurisdictions to implement the parties’ autonomy principle in this area. Accordingly, the adoption of this principle in the area of family law reflects a complete reversion of Savigny’s choice-of-law theory to its Kantian roots.

The Brussels I Regulation Recast has been published in the Official Journal, OJ 20 December 2012, L 351/1. The Brussels I Regulation Recast will apply from 10 January 2015 (see Article 81). The full name of this new born is: Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). See also our previous post.

The third issue of 2012 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht includes three interesting articles based upon contributions to commemorate the 100^th anniversary of T.M.C. Asser’s receipt of the Nobel Peace Prize, as well as articles on Brussels I and internet; conflict of laws, the acquired rights directives and transfer of seagoing vessels; the Kiobel v Shell case. Hans van Loon, The Hague Conference on Private International Law: Asser’s vision and an evolving mission, p. 358-361. The abstract reads: Tobias Asser, a preeminent Dutch legal scholar comparable to the ranks of Hugo Grotius, received his Nobel Peace Prize 1911 for his ground laying work on the unification of private international law. He foresaw that in a world consisting of a variety of legal systems, international law would acquire a critically important new role: that of ordering the diversity of civil and commercial laws, not by making them all uniform, but by providing uniform rules on the conflicts of laws. Asser’s vision, the international forum he envisaged, his methodology and his programme of work continue to flourish through the Hague Conference on Private International Law, an entity for which Asser laid the groundwork and which continues to provide inspiration more than 100 years after Asser received the Nobel Peace Prize for his work. Aukje A.H. van Hoek, Managing legal diversity – new challenges for private international law, p. 362-370. The abstract reads: In this contribution the author describes how the structural presence of private international law cases in modern society poses new challenges to private international law as a legal discipline. The literature on legal pluralism and multilevel governance is used both to provide a better understanding of the challenges and to point to possible lines of investigation. The key issues are: the difficulty of integrating non-national standard-setting in the choice of law model, the changing content of legitimate expectations and their effect on the choice of law, the need for a systemic adaptation of national legal systems to the growing presence of foreign elements within the legal order and the role of transnational legal infrastructure in the management of legal diversity. Alex Mills, Rediscovering the public dimension of private international law, p. 371-373. The abstract reads: This article, which considers aspects of T.M.C. Asser’s legacy in private international law, was presented as part of the Commemorative Conference celebrating the 100th anniversary of his receipt of the Nobel Peace Prize, held on 9th December 2011 at the Peace Palace in The Hague, the Netherlands. The article begins by discussing the history of private international law, presenting and contextualising Asser’s public international perspective, highlighted by his foundational role in the Hague Conferences on Private International Law. It then turns to analyse the subsequent fragmentation of private international law into discrete national approaches, which have often emphasised private rights. The article then discusses recent changes in private international law in the European Union, Canada and Australia, and characterises them as a revival of a more public perspective, which presents fresh challenges for private international law. It argues that these modern developments should be understood and welcomed as at least a partial rediscovery of the ‘public’ dimension of private international law, and thus as signposts of a return to Asser’s globalist vision.  K.C. Henckel, Conflict of laws and the Acquired Rights Directive: the cross-border transfer of seagoing vessels, p. 376-389. The abstract reads: The exclusion of the maritime sector from six European social directives is currently under review. Among these is the Acquired Rights Directive, a directive which aims to protect employees upon a transfer of undertaking. With a primary focus on the conflict of laws, this article aims to discuss the impact of a possible repeal of a provision which excludes seagoing vessels from the Acquired Rights Directive. It is examined whether this repeal warrants a revision of the conflict of laws rules currently being employed for transfer of undertakings. The application of ‘the place from which the vessel is operated and controlled’ is advocated as a connecting factor for the transfer of seagoing vessels. In addition, the effects of the repeal on maritime practice are addressed. Jan-Jaap Kuipers, Het internet en de Brussel I Verordening: een kwestie van Luxemburgse wispelturigheid?, p. 390-395. The English abstract reads: In three different preliminary references the European Court of Justice (ECJ) was recently given the opportunity to shed more light on the interpretation of the Brussels I Regulation in the light of the emergence of the internet. The ECJ held first in Pammer & Hotel Alpenhof that Article 15 should be interpreted in a similar manner, regardless of whether a consumer contract was concluded online. In eDate Advertising & Martinez the ECJ departed from this principle of technical neutrality, however. Article 5(3) should be interpreted differently if the alleged infringement of a personality right occurred via an internet site. Six months later, in Wintersteiger, a case relating to the infringement of a trademark, the ECJ adhered to a technologically-neutral interpretation of Article 5(3). The present contribution aims to analyse to what extent the three decisions can be reconciled.  

Prof. Dr. Xandra E. Kramer (Professor at Erasmus School of Law, Rotterdam) has posted an article on the interface between private international law and corruption on SSRN entitled 'Private International Law Responses to Corruption.Approaches to Jurisdiction and Foreign Judgments and the International Fight Against Corruption'. It is part of a publication containing three research reports on 'International Law and the Fight Against Corruption' (from a criminal law, a public international law and a private international law point of view). These reports are written for the annual meeting of the Royal Dutch Society of International Law (Dutch branch ILA), and will be discussed on 2 November 2012. The abstract reads: ‘This paper explores how private international law responds to corruption, with a focus on the assessment of international jurisdiction and the recognition and enforcement of foreign judgments. The question is what the possible private international law responses are in cases where a foreign court or a foreign judgment is tainted by corruption. The paper evaluates to what extent private international law provides adequate mechanisms to deal with corrupt conduct and how courts approach allegations of corruption in these cases. It considers rules and courts’ approaches in the Netherlands, England and The United States. It is concluded that only in little cases courts actually consider corruption in deciding private international law questions since the courts approach these questions in a rather formal way. Some of the court decisions, or at least the argumentation in these cases, are to be regretted. It is stated that the problem of corruption also raises the question as to the position of private international law in today’s world and in particular Von Savigny’s paradigm of value-neutralism. Its particular strength may be that private international law is utilised as a neutral mediator in international disputes where law, culture, and values differ. In a rather formal way it regulates and coordinates issues of the applicable law and jurisdiction while leaving diversity intact. But whatever one thinks of the Savignian idea that private law stems from the people’s mind (or Volksgeist), the reality today is that private law is an important instrument to effect policy objectives and to influence human behaviour. In an era of globalisation and in the face of the reality of corruption, not only criminal law and public international law can make a stand; private law and private international law can play a role as well. As the discussion in this paper shows, the private/public law divide is not always useful in the first place. This does not mean that the primary role of private international law should be that of a normative agent or a system of global governance. The point is that where necessary, such as in cases of serious corruption resulting in a real risk of injustice, private international law engagement is appropriate. Courts should not hide behind self-induced comity and formalism – instead, in these cases a guiding factor should be the international consensus on the repudiation of corruption. Only then can private international law contribute to the international fight against corruption.’