New Issue of Revue Hellénique de Droit International

The new issue of Revue Hellénique de Droit International 2/2013 [Vol. 66] was published earlier this month.

Table des matières

Première Partie - Articles

Dossier spécial

La Proposition de Règlement du Conseil du 16 mars 2011 relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions en matière de régimes matrimoniaux

Partie II

Chryssa Tsouca – Le droit applicable aux régimes matrimoniaux à défaut de choix des époux                         249

Nikolaos Davrados – Jurisdictional issues concerning matrimonial property regimes                        259

Deuxième Partie - Études

Evangelos Vassilakakis – International jurisdiction in insurance matters under Regulation Brussels I            …………………………………………………………………………. 273

Anthi Pelleni – Obligation to assess the creditworthiness of the consumer and the responsibility of banks       …………………………………………………………………………. 295

Nicholas M. Poulantzas – The European Union and the Exclusive Economic Zone of Mediterranean States: Does a duty to cooperate exist? ………………………………………………………   311

 

Troisième Partie - Jurisprudence

Georgios Panopoulos – La jurisprudence grecque de droit international privé en 2012                      319

Ioannis Prezas, Lisa Böhmer & Inès el Hayek – Centre International pour le Règlement des Différends relatifs aux investissements (CIRDI). Chronique du contentieux 2012 ………   335

 

Quatrième Partie - Législation et documents

International agreements ratified by the Hellenic Republic in 2012 …..   379

 

Cinquième Partie - Varia

Antoine Maniatis – Approche syncrétiste du droit para la sociologie du droit et l’anthropologie du droit        …………………………………………………………………………. 385

Fethullah Bayraktar – La question du drone en droit international ….   399

Jaques Bipele Kemfouedio – L’impact juridique du financement international des élections en Afrique : réflexions sur le cas de l’élection présidentielle ivoirienne de 2010 …………….   417

Pallavi Kishore – Le tribunal international de Tokyo pour les crimes de guerre commis sur des femmes : jugement de l’esclavage sexuel organisé par l’armée japonaise ………………..   447

Haroune Ould Ahmed – Les réserves à caractère religieux ……………..   461

Stefanos Vlachopoulos – The translation of legal texts: To what extent can functionality be creative?            …………………………………………………………………………. 471

 

Sixième Partie - Notes bibliographiques

Kalliopi Makridou & Georgios Diamantopoulos (eds), Issues of Estoppel and Res Judicata in Anglo-American and Greek Law (Tonia Korka) ……………………………………………..   487

Ingrid Rossi, Legal Status of Non-governmental Organizations in International Law (Tonia Korka)                489

Ouvrages reçus ……………………………………………………………………   493

RHDI 66 (2013)

Spanish Yearbook of International Law: Call for Papers

The Call for Papers for Vol. 18 (2013-2014) of the Spanish Yearbook of International Law (SYbIL), in now open. Manuscripts dealing with any topic of interest in the field of Public and Private International Law and International Relations should be submitted to the editors by 31 October 2014. The manuscripts shall conform to the Style Guide of the SYbIL (available here) and must be submitted to the Editor’s address at editor@sybil.es.

A few words on the journal

The Spanish Yearbook of International Law (SYbIL) was founded in 1991, and is edited by the Asociación Española de Profesores de Derecho Internacional y relaciones Internacionales (AEPDIRI). It provides an annual report on new developments in international law . From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy.

Since its first volume, the Yearbook has endeavored to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website (www.sybil.es) tries to offer the contents of this new epoch of the Yearbook as well as all the old printed volumes of the SYbIL (except last volume, by the moment). This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Yearbook publishes contributions in English from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice. The General Articles section gives authors an opportunity to submit original manuscripts (15,000-18,000 words) on a broad range of topics in international law and international relations.

Note: The SYbIL is a double blind peer-review publication

Forthcoming Title: Private International Law in the English Courts

Prof. Adrian Brigg’s new ouvrage on PIL, of more than 1.000 pages and which has been described as “a major restatement of the rules of Private International Law in the English Courts”, is about to appear at OUP.

The book offers a restatement of European and English Private International Law as it applies in the English courts. The author has set out to create a contemporary approach to private international law which is distinguished from the traditional approach of describing private international law through its common law foundations. The author places European Regulations, and related statutory material, at the front and centre of the book, reorganising private international law according to the principles that the law is increasingly European and decreasingly insular. As such the work constitutes an approach to the area which is essential for litigators dealing with questions of private international law influenced by forty years of European legislation. The in-depth discussion will also be valuable to academics specialising in private international law. Written by an academic who is also a practising barrister, this book seeks to highlight the techniques and principles which provide the hidden infrastructure and support mechanisms for the private international law rules of European law, as well as the remaining standing of the common law rules of private international law.

The book will be useful to practising lawyers tackling issues of private international law as it now is, after forty years of European legislation, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law. Written by an academic who is also a practising barrister, this book seeks to highlight the techniques and principles which provide the hidden infrastructure and support mechanism for the private international law rules of European law, as well as (albeit second) for the common law rules of private international law.

The release of the book is expected next month; the table of contents is already available here.

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (5/2014)

The latest issue (September/October) of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains the following articles:

  • Christian Schall/Johannes Weber: “The precautionary choice of the law applicable to divorce according to Rome III”

The Regulation (EU) No. 1259/2010 (Rome III) has put conflict of law rules in cross-border divorce cases on a new footing. By implementing a wide range of possibilities to designate the applicable law, Rome III establishes party autonomy as a key principle in international divorce law. This article focuses on contractual choices of law prior to divorce proceedings and analyses substantial and formal provisions of choice of law clauses in marriage contracts.

  • Deniz Halil Deren: “The effect of a Swiss insolvency on domestic proceedings”

Foreign insolvency proceedings can force a temporary stay of domestic court proceedings. In respect of insolvency proceedings in Member States of the EU, Article 15 EIR (Insolvency Regulation (EC) 1346/2000) provides for a temporary stay of domestic court proceedings; for insolvency proceedings in non-Member States, the governing provision is § 352 InsO (German Insolvency Act). This article discusses whether the requirements of § 352 InsO are met in the event of a Swiss insolvency (Konkurs) as per Article 197 et seq SchKG (Swiss Insolvency Act). This question is of current importance in light of the recent judgment by the Bundesgerichtshof (German Supreme Court) of December 2011 which rejects the view that domestic court proceedings should be stayed following a Swiss moratorium (Nachlassstundung) under Article 293 et seq SchKG (old version). The article takes into account the new Swiss provisions on moratoria, Article 293 et seq SchKG (new version, in force since 1 January 2014).

  • Robert Arts: “On the applicability of Regulation (EC) No. 1346/2000 – No unwritten requirement for a connection to more than one Member State to constitute international jurisdiction pursuant to Art. 3 (1) InsReg”

After confirming the applicability of the Insolvency Regulation on actions to set transactions aside in its landmark Seagon-decision, the ECJ now answers the remaining question of whether this applicability requires the defendant to be the resident of a Member State. After examining its wording and purpose as well as considering the practical implications, the Court concludes that the application of the Regulation does not necessitate such an unwritten connection to a second Member State.

Beyond the scope of application of Regulation (EC) No. 1346/2000 itself, the decision has bearing on the underlying issue of whether or not the EU law-maker does have the competence to regulate relationships between individual Member States and third states. The Court’s interpretation of Art. 85 TFEU does assume the possibility of such a competence in principle.

Continue reading

Towards a New Model of Judicial Cooperation in the European Union

The inaugural lecture of the first IAPL-MPI Summer School, which took place in Luxembourg last July, was delivered by the President of the  International Association of Procedural Law, Prof. Loïc Cadiet of the University Paris I-Sorbonne. He has kindly provided  me with the text: a recommended reading that can be downloaded  here, or at the website of the MPI.

Enjoy it.

Recent Developments in European Private and Business Law

Under the general heading of “Recent developments in European Private & Business Law”, an upcoming conference of the Academy of European Law (ERA) will take place in Trier next November, 20-21,  with the following key topics:

  • Recast of Brussels I, to be applied from 10 January 2015 – including its interaction with the new Choice of Court Convention which will enter into force in the first half of 2015
  • Freezing of bank accounts and the forthcoming changes after the entry into force of Regulation (EU) No 655/2014 establishing a European Account Preservation Order procedure
  • Free movement of companies and the law applicable to companies
  • Scheme of arrangements, restructuring and insolvency in the EU

The presentations will be in English or German with simultaneous interpretation. They are addressed, in particular, to lawyers in private practice dealing with civil litigation and dispute resolution; in-house counsel; business, companies and banking lawyers; representatives of business organizations; notaries; and academics.

For the program detailing contents, speakers, as well as practical infos click here (German version here)

 

The Draft UNCITRAL Model Law on Secured Transactions: Why and How?

19 September 2014. 9:00 – 17:30 Hôtel Métropole, Geneva

 A Model Law on secured transactions over movables is currently being drafted under the auspices of UNCITRAL. The aim is to prepare a simple, short and concise text, proposed for adoption (or as a source of inspiration) to countries wishing to adapt their legislation to the current developments.

The conference will start with the presentation and analysis of the Model Law by several of its drafters. It will then give experts from various legal systems the opportunity to comment on the project. The last part will be devoted to other recent developments in the field of secured transactions and their relationship with the Model Law.

Ample time will be reserved for discussions and questions. The sessions will be chaired by Monique Jametti Greiner, of the Swiss Federal Office for Justice; Georges Affaki, Chair of the Legal Committee of the ICC Banking Commission, Bénédict Foëx and Luc Thévenoz, both of University of Geneva.

9:00       Introduction

Prof. Christine Chappuis, Dean of the University of Geneva Faculty of Law

Spyridon V. Bazinas, Senior Legal Officer, UNCITRAL Secretariat; Lecturer, University of Vienna Law School

9:45       Why do we need a Model Law?

Michel Deschamps, Partner, McCarthy Tétrault (Montreal); Professor, Faculty of Law, University of Montreal

10:30     Coffee break

10:50     What issues should the Model Law address?

Jean-François Riffard, Professor, Université de Clermont-Ferrand

11:35     Reactions to the current draft of the Model Law

From a Swiss law point of view:  Dr. Hans Kuhn, Counsel, Schellenberg Wittmer (Zurich); Lecturer, University of Lucerne

12.20     Standing lunch

13:00     Reactions to the current draft of the Model Law (continued)

US law: Neil B. Cohen, Professor, Brooklyn Law School

German law: Leif Boettcher, Notary

Islamic finance: Michael McMillen, Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP (New York); Lecturer, University of Pennsylvania Law School

15:45   Coffee break

16:10   Lessons to be taken from other recent developments

The International Finance Corporation’s secured transactions program: Alejandro Alvarez de la Campa, Global Product Leader, Secured Transactions and Collateral Registries, IFC Advisory Services, World Bank Group

The recent reform of secured transactions in Belgium: Michèle Grégoire, Professor, Université libre de Bruxelles ; Partner, Willkie Farr & Gallagher LLP (Brussels)

17:20 Concluding remarks

Bénédict Foëx, Professor, University of Geneva; Counsel, Schellenberg Wittmer (Geneva)

17:30 Cocktail party hosted by the Swiss Federal Office for Justice.

Registration fee: CHF 150.

Number of participants is limited; early registration is advised. Registration on www.cdbf.ch/events/model-law/, or with Gervais Muja: gervais.muja@unige.ch, +41 22 379 86 52

 

TDM Call for Papers on Dispute Resolution from a Corporate Perspective

While corporations are one of the key stakeholders in international dispute resolution, they do not often participate in the debate, and if they do, they often speak a language completely different from that of the other stakeholders. There are numerous topics that play a key role in the daily life of corporate dispute resolution lawyers but are rarely discussed outside the corporate world or from a corporate perspective irrespective of having a significant impact on how disputes are managed and resolved, or how corporations expect this to be done.

A TDM special on dispute resolution from a corporate perspective will be edited by Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group), Michael Wheeler (Harvard Business School) and Heba Hazzaa (Cairo University), seeking to widen and deepen the debate on issues that are central to the efficient management of disputes from a corporate perspective. There is still time to submit proposals and papers for the TDM as deadline has been extended to December 15th.

Contributions should be related to any of the areas set out; however, other relevant contributions are welcome as well.

Dispute Management. While companies do not enter into contracts with the expectation of becoming embroiled in litigation, disputes do occur and are part of doing business. The assumption is that disputes should be managed systemically rather than as ad-hoc events.

Commercial Dispute Resolution – The field of negotiation. In order to successfully resolve commercial disputes, lawyers must possess, in addition to their legal, technical, and industry expertise, the skills to understand, predict and manage conflict through negotiation. While discussion of legal concepts and theory among the community of international dispute resolution lawyers is highly sophisticated, there is less of a debate on negotiation and limited exchange with other disciplines researching the field of negotiation

Managing the cost of dispute resolution. Managing the cost of dispute resolution is key, and discussions between law firms and corporations often center on the subject of how much and how to bill, including for dispute related work. While there is an ongoing debate about whether traditional hourly rate billing creates the wrong incentives, alternative fee arrangements for dispute resolution still appear to be exceptional.

The future of commercial dispute resolution – breaking new ground. The arrival of “big data”, i.e., the increasing volume, velocity, and variety of data, is likely to catapult us into a world where analytics of very large data sets may allow predictions of outcomes and behavior that currently does not exist.

For more information see here.

 

Investor-to State Dispute Settlement Mechanism (EU Regulation)

 

On 28 August, the European Union took an important step towards creating a comprehensive EU investment policy, with the publication of a Regulation setting out a new set of rules to manage disputes under the EU’s investment agreements with its trading partners. The rules – set out in the Regulation on financial responsibility under future investor-to-state disputes – are a necessary component of a common EU investment policy.

This Regulation,‘ said EU Trade Commissioner Karel De Gucht ‘represents another building block in our efforts to develop a transparent, accountable and balanced investor-to state dispute settlement mechanism as part of EU trade and investment policy.

The rules set up the EU’s internal framework for managing future investor-state disputes. They define who is best placed to defend the EU’s and Member States’ interests in the event of any challenge under investor-to-state dispute (ISDS) in EU trade agreements and the Energy Charter Treaty. The rules also establish the principles for allocating any eventual costs or compensation. Member States will defend any challenges to their own measures and the EU will defend measures taken at EU level. In all cases, there will be close cooperation and transparency within the EU and the EU institutions.

EU investment policy

Under the Treaty of Lisbon, investment became part of the EU Common Commercial Policy – an exclusive competence of the EU. As a consequence, the European Commission now also negotiates the investment component of trade agreements on behalf of the European Union.

The possibility of dispute settlement between an investor and a state is the enforcement mechanism typically used in agreements containing investment protection. There are currently 3000 bilateral investment treaties in force globally, more than 1400 of which are concluded by EU Member States. The vast majority of them include ISDS, as a necessary enforcement mechanism for those investing in third countries. EU investors are the most frequent users of ISDS worldwide.

The EU is negotiating investment protection and ISDS in a number of agreements, and is already party to the Energy Charter Treaty which provides for investment protection and ISDS. As part of its investment policy, the EU aims to implement extensive improvements to the already existing investor-to-state dispute settlement mechanisms by requiring increased transparency, accountability and predictability. In its agreements, the EU is including firm transparency obligations, so that all documents and hearings are public, provisions against the abuse of the system and provisions ensuring the independence and impartiality of arbitrators. The Regulation published today will help to ensure transparency in investor-to-state disputes that arise under future EU agreements, by foreseeing close consultations and information-sharing between the Commission, Member States and the European Parliament.

Where EU-level agreements including investment protection are concluded, they will replace the Member States’ Bilateral Investment Treaties with the same non-EU countries.

When will the new rules be used?

Although the Regulation will enter into force on 17th September, the rules will only be applied once actual investor-state disputes under EU agreements with an ISDS mechanism arise.

Source: European Commission Press release.

Note: for a further reading on the topic, based on the draft of the Regulation, Jan Kleinheisterkamp, ‘Financial Responsibility in the European International Investment Policy’, (2014) 63-2 International and Comparative Law Quarterly 449-476 (summary here).