The Faculty of Law of the University of Rome “La Sapienza” will host a German-Italian-Spanish conference on Thursday, 13th October 2016, on International Successions in Europe. The conference has been convened for the presentation of the volume “The EU Succession Regulation: a Commentary, edited by Alfonso-Luís Calvo Caravaca (University “Carlos III” of Madrid), Angelo Davì (University of Rome “La Sapienza”) and Heinz-Peter Mansel (University of Cologne), published by Cambridge University Press, 2016. The volume is the product of a research project on “The Europeanization of Private International Law of Successions” financed through the European Commission’s Civil Justice Programme.

Here is the programme (available as .pdf):

Welcome addresses: Prof. Enrico del Prato (Director, Department of Legal Sciences, University “La Sapienza”); Prof. Paolo Ridola (Dean, Faculty of Law, University “La Sapienza”); Prof. Angelo Davì (University “La Sapienza”).

First Session

Chair: Prof. Ugo Villani (University of Bari, President of SIDI-ISIL – Italian Society for International Law)

  • Prof. Javier Carrascosa González (University of Murcia): La residenza abituale e la clausola di eccezione (Habitual Residence and Exception Clause);
  • Prof. Cristina Campiglio (University of Pavia): La facoltà di scelta del diritto applicabile (Choice of the Applicable Law by the Testator);
  • Prof. Erik Jayme (University of Heidelberg): Metodi classici e nuove norme di conflitto: il regolamento relativo alle successioni (Traditional Methods and New Conflict Rules: the EU Regulation Concerning Succession);
  • Prof. Claudio Consolo (University “La Sapienza”): Il coordinamento tra le giurisdizioni (Coordination between Jurisdictions).

Second Session

Chair: Prof. Sergio Maria Carbone (University of Genova)

  • Prof. Peter Kindler (University of Munich): I patti successori (Agreements as to Succession);
  • Round Table: The European Certificate of Succession
    Introduction: Prof. Claudio Consolo (University “La Sapienza”);
    Participants: Dr. Ana Fernández Tresguerres (Notary in Madrid); Dr. Paolo Pasqualis (Notary in Portogruaro); Dr. Fabian Wall (Notary in Ludwigshafen).

Concluding remarks: Prof. Sergio Maria Carbone (University of Genova).

(Many thanks to Prof. Fabrizio Marongiu Buonaiuti, University of Macerata, for the tip-off)

{ 0 comments }
By Professor Zheng Sophia Tang (Newcastle University), Professor Yongping Xiao (Wuhan University, China) and Professor Zhengxin Huo (China University of Politics and Law)
The area of conflict of laws in China has undergone fundamental development in the past three decades and the most recent changes in the 2010s, regarding both jurisdiction and choice of law rules, mark the establishment of a modern Chinese conflicts system. Jointly written by three professors from both China and the UK, this book provides the most up-to-date and comprehensive analysis of Chinese conflict of laws in civil and commercial matters, covering jurisdiction, choice of law, procedure, judgment and awards recognition and enforcement, and interregional conflicts in China.

Providing comprehensive and sophisticated analysis of current Chinese conflict of laws, the authors assess the actual judicial practice and case decisions. The book takes into account the historic, political and economic background of the subject matter, as well as relevant empirical evidence and data, especially recognizing the contribution of Chinese scholars in the field. It examined over 300 cases and over 130 legislative and judicial interpretive materials. It concludes that the Chinese conflicts system has entered into the stage of modernization and proposes policy to improve efficiency, prevent local protectionism, balance internationalization and nationalization, democratize legislative process and improve judicial training and judicial practice.

This timely book is an invaluable resource for academics and practitioners in private international law, conflict of laws, international law, international litigation, Chinese law and international civil and commercial matters involving China.

Contents
 
Part I Conflict of Laws in China—History and Concept 
1. Conflict of Laws in China—A Historical Perspective 
2. Concepts and Preliminary Questions 
Part II Jurisdiction, Procedure, Foreign Judgments and Awards 
3. Jurisdiction in Chinese Courts 
4. Declining Jurisdiction in Chinese Courts 
5. Selected Procedural Issues in Foreign-Related Litigation in China 
6. Recognition and Enforcement of Foreign Judgments in Chinese Courts 
7. Recognition and Enforcement of Arbitral Awards in Chinese Courts 
Part III Choice of Law 
8. Choice of Law in Contracts 
9. Choice of Law in Tort 
10. Choice of Law in Unjust Enrichment and Negotiorum Gestio 
11. Choice of Law in Property 
12. Choice of Law in Intellectual Property 
Part IV Interregional Conflicts and Cooperation 
13 Interregional Conflicts and Cooperation between Mainland, Hong Kong, Macau and Taiwan 
Part V Final Remarks 
14. Chinese Conflict of Laws: Past, Present and Future
 
Critical Acclaim
‘This is an excellent and up-to-date book that enables the English-speaking world to get an accurate and comprehensive understanding of private international law in mainland China. The Chinese system can be said to be a mixed system, in that it is only partially governed by statute and much of the law still emerges from case law and interpretations of the law given by the Supreme People’s Court. The authors point out that only in very few cases do the Chinese courts actually apply foreign law. This tendency of the judges to avoid the application of foreign law is one of several features of the Chinese system of private international law that shows the importance of judicial decisions to understanding how the system actually works. The writers rightly point out areas where Chinese private international law could be improved, with recommendations that China should liberalise its approach to recognition and enforcement of foreign judgments by adopting a de jure approach to reciprocity and by entering into multilateral treaties like the Hague Choice of Court Agreements Convention 2005.’ 
– Paul Beaumont, University of Aberdeen, UK
{ 0 comments }

The Center for the Study of Dispute Resolution at the University of Missouri School of Law and the American Society of International Law (ASIL) Dispute Resolution and Midwest Interest Groups, in association with Young ICSID, are pleased to announce two upcoming events: (1) a works-in-progress conference and (2) student writing competition. Both events focus on international dispute resolution, broadly defined.

More information on both events shows below and on the event website. Please feel free to forward this email to those who might be interested in either event.

Works in Progress Conference

The works-in-progress conference will take place on February 2 and 3, 2017, at the University of Missouri School of Law. The purpose of the conference is to help authors develop draft articles for publication, so authors will be required to submit a working draft before the conference takes place. Papers will be circulated in advance of the session, and all participants will be expected to provide detailed feedback on a limited number of other papers.

The works-in-progress conference will also feature various networking opportunities as well as several substantive presentations on issues relating to international dispute resolution. Presentations will be live or by video and include: Lady Justice Joyce Aluoch, Judge and First Vice-President of the International Criminal Court in the Hague, who will be speaking on matters of public international law; Ryan Reetz and Pedro Martinez-Fraga of Bryan Cave, who will be speaking on their recent book, Public Purpose in International Law: Rethinking Regulatory Sovereignty in the Global Era (Cambridge University Press 2015); and Paul-Jean Le Cannu, Legal Counsel at ICSID, who will speak on the future of investor-state dispute settlement systems.

Papers presented at the works-in-progress conference will be eligible for expedited review by the University of Missouri’s highly regarded Journal of Dispute Resolution as well as for consideration by the ICSID Review-Foreign Investment Law Journal. While submissions will have to go through the normal publication process and an offer of publication is not guaranteed, the editors of both journals are very interested in reviewing submissions from works-in-progress participants.

This is expected to be a very international event, and submissions are sought from academics and practitioners around the world. Junior professionals, including aspiring and untenured academics, are encouraged to submit proposals. To be considered, potential participants must submit a one-page abstract of their work on or before October 15, 2016. Details on how to submit a proposal for the works-in-progress conference can be found here.

Student Writing Competition

The University of Missouri is also sponsoring a student writing competition in conjunction with this event. The competition is open to current students at any institution in the world granting a degree in law. The competition carries a prize of $450 for first place and $125 for second place, and the winning paper is eligible to be considered for publication in the University of Missouri’s Journal of Dispute Resolution. The prize amounts may increase (funding is still being finalized), so be sure to check back for additional details. Students of all levels (J.D., LL.B., LL.M., S.J.D., and Ph.D.) are eligible to submit papers. Advanced degree students (LL.M., S.J.D. or Ph.D.) may submit the same paper for both the works-in-progress conference and the student writing competition. The deadline for the student writing competition is January 15, 2017. More details on the student writing competition are available here.

{ 0 comments }

written by Veerle Van Den Eeckhout

On the blog section of the Dutch journal Nederlands Juristenblad, a new blog of Veerle Van Den Eeckhout on the Proposal for a revision of the Posting Directive has been published, see here.

Previous blogs on this theme can be found here and here.

This blog is entitled “Ipr en het verdergaande proces tot wijziging van de Detacheringsrichtlijn. Ipr in een politiek-juridisch krachtenveld (in English: “Private International Law and the ongoing process of revising the Posting Directive. PIL in a legal-political force field”). It is written in Dutch. An English version can be found here.

{ 0 comments }

Wilmer Cutler Pickering Hale and Dorr LLP are delighted to invite you to the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration.
Professor Dr. Maxi Scherer, General Editor of the Journal of International Arbitration and Dr. Johannes Koepp, Special Issue Editor, will host a discussion with the authors on the content of the Special Issue.

Topics and speakers will include:
How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit – Dr. Holger P. Hestermeyer
What Does Brexit Mean for the Brussels Regime? – Sara Masters QC & Belinda McRae
Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe – Michael McIlwrath
Impact of Brexit on UK Competition Litigation and Arbitration –Gilbert Paul
Brexit and the Future of Intellectual Property Litigation and Arbitration – Annet van Hooft
Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs – Markus Burgstaller

Date: Thursday, September 29, 2016 6–9 p.m.

Venue: 49 Park Lane, London, W1K 1PS

To register: here

(The Special Issue journal launch will be followed by a champagne reception)

{ 2 comments }

Roel Westrik, associate professor of private law at Erasmus School of Law, is the author of a noteworthy book that presents an original approach to the applicable European law in “Hidden Civil Law. How can you know what the applicable law is?’ (Paris, 2016). The abstract reads:

Lawyers are taught to work with applicable law and to be familiar with the applicable law, they should ‘keep up to date with their literature’. Here, in two sentences, the reality and ways of working of lawyers throughout the past century. Past because, in contemporary times, applicable law can no longer be easily ‘recognised’. There is a knowing problem related to applicable law of European origin. This problem consists in two main questions: How are lawyers to know what applicable law is? And, if there is a presumption of ‘other’ applicable law when practising ‘national law’, where is it to be found?

These questions must be posed in every case, every advice to be written as well as judgments and rulings that have to be pronounced. What, in a specific case, is the prevailing, applicable law irrespective of whether its origins are national or European?

The acknowledgement that these questions must be posed in advance, before ‘solving’ any case, will make great strides in the current ways of working and classification of legal areas. Also, it will pay scant attention to the existing approach where ‘European law’ is seen as corpus alienum, which influences national law from ‘outside’ and creates a ‘Hidden Civil Law’.

A message is sent to the legal world of civil law: Wake up! European law is part of national law and should be studied as applicable law. It should be recognised and implemented rather than being taken as a separate supplement under the flag of ‘IPL, European law or its impact’. It is applicable civil law!

More information is available here.

{ 2 comments }

TDM Journal, Special Issue

The Arbitration Institute of the Stockholm Chamber of Commerce will turn 100 years in 2017. As part of the celebrations in January, a book about the history of arbitration will be published, where lawyers and diplomats from all over the world each write about one particular dispute.

One of the contributions is written by the winner of a large competition initiated by the SCC and aimed at young lawyers. The competition inspired many highly qualified contributions and several were so well-written that they will now be published in a separate edition of Transnational Dispute Management Journal (TDM).

The four texts deal with four different arbitrations that affected international relations: from a border dispute between the United States and Great Britain in what is now Canada, via an early ISDS case from the year 1900 over a Portuguese railway project and a relatively recent arbitration between Singapore and Malaysia, which was concluded at the Permanent Court of Arbitration in 2014.

You can read more about the publication, including the foreword by SCC Secretary-General Annette Magnusson, clicking here.

{ 0 comments }

The University of Milan will host a very interesting seminar on 15 September 2016 (15h00) on “New Trends in EU Private International Law”. Here is the programme:

Welcome address: Prof. Laura Ammannati (Univ. of Milan);

Chair: Prof. Dr. h.c. mult. Fausto Pocar (Univ. of Milan);

  • Prof. Paul Lagarde (Univ. of Paris I Panthéon-Sorbonne): Les règlements en matière de régimes matrimoniaux et d’effets patrimoniaux des partenariats enregistrés;
  • Prof. Dr. Dr. h.c. mult. Jürgen Basedow (MPI, Hamburg): Damages claims for anticompetitive conduct and the competition of legal services;
  • Prof. Dr. Christian Kohler (Univ. des Saarlandes): Les dispositions de d.i.p. du règlement 2016/679 relatif à la protection des données à caractère personnel (et de la directive 2016/680);
  • Prof. Francisco Garcimartín Alférez (Univ. Autónoma de Madrid): The GEDIP proposal on the law applicable to companies;
  • Prof. Manlio Frigo (Univ. of Milan): Methods and techniques of dispute settlement in the international practice of restitution and return of cultural property;

Final remarks: Prof. Stefania Bariatti (Univ. of Milan).

Further information and the (mandatory) registration form can be found here.

(Many thanks to Prof. Francesca Villata for the tip-off)

{ 0 comments }

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

B. Hess: The impacts of the Brexit on European private international and procedural law
This article explores the consequences of the Brexit on European private international and procedural law. Although Article 50 TEU provides for a two year transitional period, the (adverse) consequences will affect the London judicial market immediately. Following this transitional period, the Brussels Ibis Regulation and all EU instruments in their area of law will no longer apply to the United Kingdom. A substitution by the Lugano Convention will be difficult, but the United Kingdom might ratify the Hague Choice of Court Convention and the (future) Hague Judgments Convention. In the course of the two-year period, parties should carefully consider whether choice of courts agreements in favour of London will lose their validity after Brexit. In international company law, United Kingdom companies operating on the Continent should verify whether their legal status will be recognized after the Brexit. In family matters, the legal status of EU (secondary) legislation should be respected even after the Brexit. All in all, European private international law will be affected by the cultural loss of the English law. And the same will apply vice versa to English law.

R. Freitag: Explicit and Implicit Limitations of the Scope of Application of Regulations Rome I and Rome II
Almost ten years after the enactment of Regulation “Rome II” on the law applicable to non-contractual obligations and nine years after the publication in the Official Journal of Regulation “Rome I” on the law applicable to contractual obligations, the fundamental question of the material scope of application of the uniform private international law of the EU remains unanswered: Are the aforementioned regulations limited to contracts in the strict sense of voluntarily incurred obligations (governed by Regulation “Rome I”) and to torts, unjust enrichment, negotiorum gestio and culpa in contrahendo (as defined in Regulation “Rome II”) or are both regulations to be seen as an ensemble forming a comprehensive regime for the law of obligations (with the exception of the matters explicitly mentioned in art. 1 par. (2) of Regulation Rome I and Rome II respectively)? The answer is of practical importance for a significant number of institutions of national substantive law that are characterized by their hybrid nature positioning them between contracts and legal obligations which cannot be qualified as torts, unjust enrichment etc. The aim of the article is to show that despite the fact that an all-encompassing European regime of conflict of laws is highly desirable, the existing Regulations “Rome I” and “Rome II” remain eclectic. They do not allow for a uniform treatment of all relevant institutions of substantive law and namely their rules on mandatory provisions (art. 9 Regulation “Rome I”, art. 16 Regulation “Rome II”) cannot be activated to this end.

K. Thorn/C. Lasthaus: The „CAS-Ruling“ of the German Federal Court of Justice – Carte Blanche for Sports Arbitration?
In its judgement, the German Federal Court of Justice (BGH) ruled on the legal validity of an arbitration agreement in favour of the Court of Arbitration for Sport (CAS) between an athlete and an international sports federation. Even though sports federations constitute a monopoly and as a result, athletes are not free to choose between arbitration and courts of law without losing their status as a professional, the agreement is legally effective according to the BGH, thus precluding the parties from settling their dispute before courts of law. In this legal review, the authors argue that – due to the athletes’ lack of freedom – arbitration agreements in sport can only be considered effective if they lead to a court of arbitration constituting a minimum rule of law. With regards to the CAS and considering the influence of sports federations in the establishment of the CAS’ list of arbitrators, they take the view that the CAS does not fulfil such minimum legal requirements. Furthermore, they criticise the fact that an arbitrator is not required to disclose previous appointments by one of the parties involved in the current arbitration procedure. This way, the right to refuse an arbitrator suffers devaluation. Notwithstanding the fact that the international sporting system requires consistent interpretation and application of sporting rules by an international arbitration court in order to establish equal opportunities among the athletes, this must not be achieved at the expense of the athletes’ constitutional rights. Due to the aforementioned legal deficits, the BGH should have ruled the agreement void.

C. Mayer: Judicial determination of paternity with regard to embryos: characterization, private international law, substantive law
The Higher Regional Court of Düsseldorf had to decide on a motion to determine the legal paternity of a sperm donor with regard to nine embryos, who are currently deep frozen and stored in a fertility clinic in California. The hasty recourse to the German law of decent by the court overlooks the preceding issue whether assessing, as of when the judicial determination of paternity is possible, is to be qualified as a question of procedure or substantive law and is, thus, to be solved according to the lex fori or lex causae. Furthermore, the court’s considerations concerning the conflict-of-laws provisions, denying the analogous application of Art. 19 par. 1 s. 1 EGBGB (Introductory Act to the German Civil Code), are not convincing, the more so as it left the question unanswered which conflict-of-laws provision decides on the applicable law instead.

K. Siehr: Criminal Responsibility of the Father for Abduction of his own Daughter
A man of Syrian nationality and a woman married in Germany and had a daughter. The couple finally divorced and parental responsibility was given exclusively to the mother. In December 2006 the couple decided to visit the father’s relatives in Syria in order to spend Christmas vacation with them, to detract the daughter from bad influences in Germany and to change the daughter’s name. The daughter felt very uncomfortable in Syria, because she was not allowed to go to school and could not leave her relatives’ home without being accompanied by some elderly person of her relatives. She wanted to go back to Germany, but was not allowed to do so by her father. Her mother tried to enable her to leave Syria with the help of the German embassy, but this could not be realized. The daughter was beaten by her father and the mother was prohibited to have contact with her daughter. After having reached majority age, the daughter managed to go back to Germany, where the mother indicted the father for depriving a minor from the person having exclusive parental responsibility (§ 235 German Criminal Code). The County Court of Koblenz convicted the father of being guilty of dangerous bodily harm (§ 223a German Criminal Code) and of depriving a minor from her mother (§ 235 German Criminal Code). The Federal Court for Civil and Criminal Cases (Bundesgerichtshof = BGH) confirmed this decision and rejected the attorney general’s and the accused’s appeal against it. The Federal Court correctly decided that German criminal law applies, because the person, having exclusive parental responsibility, had her habitual residence in Germany, hence the result of deprivation was also felt in Germany. The Federal Court also correctly held that the private law question of parental responsibility has to be answered by German law, including German private international law.

C.F. Nordmeier: Acceptance and waiver of the succession and their avoidance according to the Introductory Act to the German Civil Code and to Regulation (EU) No. 650/2012
In matters of succession, a renvoi that results in the scission of the estate causes particular problems. The present contribution discusses acceptance and waiver of the succession and their avoidance in a case involving German and Thai law. The law applicable to the formal validity of such declarations is determined by art. 11 of the Introductory Act to the German Civil Code. It covers the question whether the declaration must be made before an authority or a court if this is provided for by the lex successionis without prescribing a review as to its content. In case of the avoidance of the acceptance of the succession based on a mistake about its over-indebtedness, the ignorance of the scission of the estate may serve as a base for voidability. The second part of the present contribution deals with Regulation (EU) No. 650/2012. Art. 13 of the Regulation applies in the case of the scission of the estate even if only a part of the estate is located in a Member State and the declaration at hand does not concern this part. Avoidance and revocation of the declarations mentioned in art. 13 and art. 28 of the Regulation are covered by these norms.

W. Wurmnest: The applicability of the German-Iranian Friendship and Settlement Treaty to inheritance disputes and the role of German public policy
Based on a judgment of the District Court Hamburg-St. Georg, the article discusses the conditions under which the applicable law in succession matters has to be determined in accordance with the German-Iranian Friendship and Settlement Treaty of 1929, which takes precedence over the German conflict rules and those of Regulation (EU) No. 650/2012. The article further elaborates on the scope of the German public policy threshold with regard to the application of Iranian succession law. It is argued that the disinheritance of an heir as a matter of law would be incompatible with German public policy if based on the heir either having a different religion than the testator or having the status of illegitimate child. However, these grounds will be upheld if the discrimination has been specifically approved by the testator.

C. Thole: Discharge under foreign law and German transaction avoidance
The judgment of the Federal Court of Justice deals with the question whether recognition of an automatic discharge obtained by the debtor in an English insolvency proceeding excludes a subsequent non-insolvency action based on German law on fraudulent transfers. The Court rightly negates this question, however, the court’s reasoning is not completely convincing. In particular, the judgment entails a bunch of follow-up questions with respect to the interdependency between a foreign insolvency or restructuring proceeding and German fraudulent transfer law (outside of insolvency proceedings).

F. Ferrari/F. Rosenfeld: Yukos revisited – A case comment on the set-aside decision in Yukos Universal Limited (Isle of Man) et al. v. Russia
In a decision of 20/4/2016, the District Court of The Hague set aside six arbitral awards that had been rendered in the proceedings Yukos Universal Limited (Isle of Man) et. al. against Russia. The arbitral tribunal had ordered Russia to pay compensation for its breach of the Energy Charta Treaty. According to the District Court of The Hague, the arbitral tribunal had erroneously found that the Energy Charta Treaty was provisionally applicable. For this reason, the arbitral tribunal could not base its jurisdiction on the arbitration clause set forth in Art. 26 Energy Charta Treaty. The present case note examines the set-aside decision of the District Court of The Hague as well as its implications for ongoing enforcement proceedings. Various approaches towards the enforceability of annulled arbitral awards will be presented.

P. Mankowski: Embargoes, Foreign Policy in PIL, Respecting Facts: Art. 9 (3) Rome I Regulation in Practice
Internationally mandatory rules of third states are a much discussed topic. But only rarely they produce court cases. Amongst the cases, foreign embargoes provide for the highlights. The USA has graced the world with their shades. Yet the Cour d’appel de Paris makes short shrift with the (then) US embargo against the Iran and simply invokes Art. 9 (3) of the Rome I Regulation – or rather the conclusio a contrario to be drawn from this rule – to such avail. It does not embark upon the intricacies of conflicting foreign policies but sticks with a technical and topical line of argument. Blocking statutes forming part of the law of the forum state explicitly adds the political dimension.

C. Thomale: On the recognition of Ukranian surrogacy-based Certificates of Paternity in Italy
The Italian Supreme Court denied recognition of a Ukrainian birth certificate stipulating intended parents of an alleged surrogacy arrangement as the legal parents of a newborn. The reasoning given by the Court covers fundamental questions regarding the notions of the public policy exception, the superior interest of the child as well as the relationship between surrogacy and adoption. The comment elaborates on those considerations and argues for adoption reform.

M. Zilinsky: The new conflict of laws in the Netherlands: The introduction of Boek 10 BW
On 1/1/2012, the 10th book of the Dutch Civil Code (Boek 10 (Internationaal Privaatrecht) Burgerlijk Wetboek) entered into force in the Netherlands. Herewith the Dutch Civil Code is supplemented by a new part by which the different Dutch Conflict of Laws Acts are replaced and are combined to form one legal instrument. The first aim of this legislative process was the consolidation of the Dutch Conflict of Laws. The second aim was the codification of certain developed in legal practice. This article is not a complete treatise on the Dutch Conflict of Laws. The article intends to give only a short explanation of the new part of the Civil Code.

{ 0 comments }

Our co-editor Matthias Weller has written an article on jurisdiction clauses under the Brussels Ibis Regulation and the Hague Choice of Court Convention (Choice of Forum Agreements under the Brussels I Recast and under the Hague Convention: Coherences and Clashes). The full version is available here. The abstract reads as follows:

Choice of forum agreements are widely used. International uniform law has entered into force recently, namely the Hague Convention of 30 June 2005 on Choice of Court Agreements on 1 October 2015, the Brussels Ibis Regulation on 10 January 2015. Both instruments are formally independent but in the legislative process the drafters of the Convention took notice of the Brussels I Regulation, and the European legislator took notice of the Convention while working on the Recast of the Brussels I Regulation in order to “strengthen” choice of forum agreements and to bring about “coherence” of the Brussels regime with the Hague Convention. Against this background, the two instruments now in place are compared in respect to its most important policy decisions: the definition of the internationality of the case as a prerequisite of the applicability of the respective instrument, the understanding of the choice of law rule on the nullity of the agreement, the scope and mode of a public policy control of the agreement and, most extensively, the respective mechanisms for coordinating parallel proceedings, in particular the new mechanism under the Brussels Ibis Regulation granting priority for the designated court. This new mechanisms turns out to be too complex, leaving important points open. Therefore, de lege ferenda an alternative mechanism is suggested along the lines of the Hague Convention by making use of the recent judgment of the ECJ in Gothaer Versicherung. This alternative would not only be much easier and thus more predictable, it would also be able to coordinate each and every parallel proceedings, not only those involving a choice of court agreement.

 

{ 0 comments }