Rome II – All Change?

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There is a short note in the new issue of the New Law Journal by Stephen Turner (Beachcroft LLP) entitled "Rome II – all change?" The abstract reads:

Considers the UK law as it applies to torts committed overseas, with reference to the House of Lords ruling in Harding v Wealands, where a road traffic accident had occurred in Australia. Examines the provisions of the Private International Law (Miscellaneous Provisions) Act 1995 on how to deal with international disputes and how the provisions of the Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II) will change how the appropriate jurisdiction is determined, considering if any exception should be made for product liability claims.

Ref: New Law Journal N.L.J. (2006) Vol.156 No.7247 Pages 1666-1667. Available on Lawtel.

Conference: Private International Law in Family Matters

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The international conference titled “Family Relations Having an International Element in the Case Law of the States Successors to the Former SFRY and in the European Union” (Obiteljskopravni odnosi s me?unarodnim obilježjem u sudskoj praksi država bivše SFRJ i Europskoj uniji) was held on 26 and 27 October 2006 in Zagreb, Croatia. The conference was dedicated to various private international law issues in the field of family law, but had a particular purpose to enable comparison of the case law in this field which is generally subject to the same conflict rules in all the successor states of the former Yugoslavia, with some exceptions in Slovenian law as a result of the adoption of the new Private International Law Act in 1999, and of course membership in the EU. Therefore, the first part of the conference consisted of national reports: 

  • Croatian National Report: Prof. dr. sc. Hrvoje Sikiri? (Faculty of Law, University of Zagreb)
  • Serbian National Report: Prof. dr. sc. Bernadet Bordaš (Faculty of Law, University of Novi Sad)
  • Slovenian National Report: Doc. dr. sc. Suzana Kralji? (Faculty of Law, University of Maribor)
  • Interlocal Family Conflict of Laws in Bosnia and Herzegovina: Prof. dr. sc. Valerija Šaula (Faculty of Law, University Banja Luka)

 The next part of the conference was dedicated to the Hague Conventions in the area of family law, in particular the following were discussed: 

  • The 1993 Hague Convention on Adoption: Doc. dr. sc. Vjekoslav Puljko (Faculty of Law, University of Osijek)
  • The Hague Conventions on Maintenance: Prof. dr. sc. Vesna Tomljenovi? (Faculty of Law, University of Rijeka)
  • The Law Applicable to Maintenance of Children: Mr. sc. Mirela Župan (Faculty of Law, University of Osijek)

 The third set of presentations dealt with some property-related aspects of family relations: 

  • Law Applicable to Property Relations in Marriage and Non-Marital Cohabitation, Mr. sc. Ivana Kunda (Faculty of Law, University of Rijeka)
  • Law Applicable to Marital Agreement: Mr. sc. Irena Majstorovi? (Faculty of Law, University of Zagreb)
  • Engagements in Private International Law: Prof. dr. sc. Vilim Bou?ek (Faculty of Law, University of Zagreb)

 Although former presentations often made references to Community legislation de lege lata and de lege ferenda, the last section was particularly devoted to two recent developments: 

  • New Proposal on the Brussels II bis Regulation: Prof. dr. sc. Vesna Lazi? (Faculty of Law, University of Utrecht)
  • Law Applicable to Divorce: Iva Perin, dipl. iur. (Faculty of Law, University of Zagreb)

 The conference discussion yielded some general conclusions, among which the non-application by the courts of conflict rules seemed to have caught the attention of most participants. National reporters as well as other speakers identified the problem in the lack of reasons concerning the court’s jurisdiction and governing law in international cases. While the conference participants unanimously agreed that the non-application of conflict of law and conflict of jurisdiction rules is a chronic disease in the entire region, its cause was perceived differently. Prof. Gašo Kneževi? attributed this phenomenon to the complexity of the private international law, Prof. Željko Mati? believed that the reason laid in the lack of awareness and, as Prof. Batiffol noted long ago, was an instinctive rejection of the foreign law, Prof. Vesna Lazi? found further reason to exist in the lengthy and complex process of ascertaining the content of foreign law to what Prof. Vesna Tomljenovi? subscribed and added that the attorneys at law sometimes make the choice when commencing the proceedings not to raise the issues of international jurisdiction and applicable law in order to avoid over-complex proceedings. In the represented legal systems of the South-East European region the polarization is thus more than obvious: on the one hand, the scholarly interpretations ascribe to the conflict rules the strength of ius cogens, and on the other hand, the courts are practicing the facultative application of the conflict rules. The discussion recognised the need to resolve this situation. Proposed means to that effect might include intensified education for practitioners or, as Prof. Tibor Varady proposed, concentration of jurisdiction in certain matters. One interesting observation was made by Assist. Prof. Davor Babi? who envisioned the emergence of Matrimonium Europea similarly to the creation of Societas Europea. 

This was the fourth time in a row that private international law scholars gathered to talk about contemporary developments in the region and the EU, making this international conference almost a traditional one. The first one, held in 2003, was hosted by the University of Niš (Serbia), the second by the University of Maribor (Slovenia) and the third by the University of Belgrade (Serbia). It is noteworthy that the 2006 conference was organized by the Faculty of Law of the University of Zagreb in the year when this Faculty is celebrating its 230th anniversary. 

Torts and Choice of Law: Searching for Principles

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Keith N. Hylton (Boston University School of Law) has just published an article entitled "Torts and Choice of Law: Searching for Principles" on SSRN. The abstract reads:

If a tortious act (e.g., negligently firing a rifle) occurs in state X and the harm (e.g., killing a bystander) occurs in state Y, which state's law should apply? This is a simple example of the “choice of law” problem in torts. The problem arises between states or provinces with different laws within one nation and between different nations. In this comment, prepared for the 2006 American Association of Law Schools Annual Meeting, I examine this problem largely in terms of incentive effects, and briefly consider how the analysis could be incorporated into the standard introductory course on tort law. I conclude that a zone of foreseeable impact rule provides the best underlying principle in conflict of law situations. This rule supports the traditional legal approach (lex loci) to conflicts of laws and helps to explain modern approaches as well.

You can download the full article here.

October 2006 Round-Up: Private International Law Decisions in United States Courts

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Three recent decisions from the U.S. federal courts present some interesting issues for this site’s readership. The first case of interest comes from the Second Circuit Court of Appeals, often a bellwether for private international law matters. In Royal Sun Alliance Ins. Co. of Canada v. Century Int’l Arms, Inc., a unanimous panel led by Judge Lynch reversed a dismissal entered by the district court because of a parallel proceeding underway in Canada. Tightening the court’s abstention doctrine, the panel held that “[T]he existence of a parallel action in an adequate foreign jurisdiction must be the beginning, not the end, of a district court's determination of whether abstention is appropriate. . . . [Beyond] the mere existence of an adequate parallel action, . . . additional circumstances must be present — such as a foreign nation's interest in uniform . . . proceedings — that outweigh the district court's general obligation to exercise its jurisdiction.” On remand, the court ordered the district court to consider granting “a measured temporary stay [that] need not result in a complete forfeiture of jurisdiction, . . .[a]s a lesser intrusion on the principle of obligatory jurisdiction.” Such an action, in the court of appeals' eyes, “might permit the district court a window to determine whether the foreign action will in fact offer an efficient vehicle for fairly resolving all the rights of the parties, [which should] normally should be considered before a comity-based dismissal is entertained.”

Second, a deepening split of authority was presaged in an unpublished decision of the District of New Jersey.  In Rogers v. Kasahara, plaintiff utilized the Article 10(a) of the Hague Service Convention to serve process on Japanese defendants via “postal channels.” The Eighth and Fifth Circuits adhere to a “strict constructionist” view of the convention, and hold that the meaning of the word "send" in Article 10(a) does not include "serve"; that is, they permit the sending of judicial documents by mail, but only after service of process was accomplished by some other means. The Second and Ninth Circuits, however, hold in accordance with the bulk of international consensus that the meaning of “send’ in Article 10(a) includes “serve,” allowing postal channels to be utilized absent a specific objection by the signatory state. The District of New Jersey, recognizing further discordance within its home circuit (i.e. the Third), followed the latter approach and denied a motion to dismiss for the failure to properly serve the foreign defendants. A copy of this decision will be posted when one becomes available.

Lastly, notwithstanding the lively academic debate and his own protestations to the contrary, Seventh Circuit Judge Richard A. Posner decided that U.S. courts must sometimes accord precedential effect to foreign law. In Carris v. Marriott Int'l, Inc., a plaintiff filed suit in Illinois as a result of breaking his leg while jet skiing in the Bahamas. A unanimous panel applied the "most significant relationship" analysis, and concluded that Bahamian law applied to the dispute, despite Plaintiff's argument — disputed in its correctness by Judge Posner — that his primary recourse under the "apparent authority" doctrine of English common law, was not available in Bahamian courts.