New References on Brussels I Regulation

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Two new references for preliminary rulings on the Brussels I Regulation have been referred to the ECJ:

1. The Hof van Cassatie van België has referred the following question to the ECJ:

Is a creditor who pursues a claim in the name and for the account of his debtor a party within the meaning of Article 43(1) of Regulation No 44/2001, that is, a party who can lodge an appeal against a decision on the request for declaration of enforceability, even if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration?

(The case is pending as: Draka NK Cables Ltd, AB Sandvik International, VO Sembodja BV and Parc Healthcare International Limited v Omnipol Ltd (Case C-167/08)

2. The Hoge Raad der Nederlanden has referred the following questions:

a) Which harm is, in the case of unlawful conduct such as that which forms the basis for Zuid-Chemie’s claim, to be treated as the initial harm resulting from that conduct: the harm which arises by virtue of the delivery of the defective product or the harm which arises when normal use is made of the product for the purpose for which it was intended?

(b) If the latter is the case, can then the place where that harm arose be treated as ‘the place where the harmful event occurred’ within the meaning of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters only if that harm consists of physical harm to persons or goods, or is this also possible if (initially) only financial harm has been incurred?

(The case is pending as: Zuid-Chemie B.V. v Philippo’s Mineralenfabriek N.V./S.A., at present PMF Productions (Case C-189/08))

(Many thanks to Jens Karsten for the tip-off!)

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (4/2008)

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Recently, the July/August issue of the German legal journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was released.

It contains the following articles/case notes (including the reviewed decisions):

  • Burkhard Hess/David Bittmann: “Die Verordnungen zur Einführung eines Europäischen Mahnverfahrens und eines Europäischen Verfahrens für geringfügige Forderungen – ein substantieller Integrationsschritt im Europäischen Zivilprozessrecht” – the English abstract reads as follows:

Two new European instruments, Regulation (EC) No. 1896/2006 concerning the creation of a European Payment Order and Regulation (EC) No. 861/2007 establishing a European Procedure for Small Claims, will enter into force on the 9th of December 2008 and the 1st of January 2009, respectively. Both constitute a new step in the integration of European Civil Procedural Law, introducing a genuine European title and creating genuine European civil procedures in specific areas. The following article presents and analyses these new instruments. Furthermore, it scrutinizes the German implementation rules, which are currently still at a draft stage. Finally, the article assesses the interplay between the new parallel regulations and examines their implications for European as well as national procedural laws. In the long run, the vast number of different regulations on the cross-border recovery of debts may entail the fragmentation of European Civil Procedural Law.

  • Rolf Wagner: “Änderungsbedarf im autonomen deutschen internationalen Privatrecht aufgrund der Rom II-Verordnung? – Ein Überblick über den Regierungsentwurf eines Gesetzes zur Anpassung der Vorschriften des Internationalen Privatrechts an die Rom II Verordnung” – the English abstract reads as follows:

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) will enter into force in the EU member states (except for Denmark) as from 11 January 2009. The following observations examine whether national German law has to be changed as a consequence of the Rome II Regulation. In particular, the question arises as to whether the rules on non-contractual obligations in Articles 38 seqq. of the German Introductory Act to the Civil Code may be deleted, and whether further changes are necessary in order to give full effect to the Rome II Regulation.

  • Sven Rugullis on anticipated choice of law by the parties with regard to non-contractual obligations: “Die antizipierte Rechtswahl in außervertraglichen Schuldverhältnissen”
  • David Einhaus on the Regulation creating a European Order for Payment Procedure: “Qual der Wahl: Europäisches oder internationales deutsches Mahnverfahren?”
  • Sascha Reichardt on a judgment of the Federal Supreme Court of 28 June 2007 (I ZR 49/04) dealing with the question of international jurisdiction regarding intellectual property rights: “Internationale Zuständigkeit deutscher Gerichte bei immaterialgüterrechtlichen Klagen”
  • Peter Mankowski on a judgment of the Higher Regional Court Karlsruhe of 24 August 2007 (14 U 72/06) on Art. 15 (1) lit. c Brussels I Regulation: “Muss zwischen ausgerichteter Tätigkeit und konkretem Vertrag bei Art. 15 Abs. 1 lit. c EuGVVO ein Zusammenhang bestehen?”
  • Rolf Stürner/Therese Müller show developments of the German-American mutual judicial assistance by analysing two recent decisions of the Federal Supreme Court (28 March 2007 – IV AR (VZ) 2/07) and the Higher Regional Court Celle (6 July 2007 – 16 VA 5/07) dealing respectively with the question of service of American class actions in Germany and the granting of assistance by German courts to obtain evidence for US-American pre-trial discovery-proceedings: “Aktuelle Entwicklungstendenzen im deutsch-amerikanischen Rechtshilfeverkehr”
  • Fügen Sargin: “A Critical Analysis of the Requirements of Recognition and Enforcement of Foreign Judgments under Turkish Law”
  • Zeynep Derya Tarman on the acquisition of real estate by foreigners in Turkey and its restrictions: “Grundsätze und Beschränkungen beim Erweb von Grundstücken durch Ausländer in der Türkei”
  • Torstein Frantzen on the recognition of foreign divorces in Norway: “Anerkennung ausländischer Ehen in Norwegen”

Further, this issue contains the following materials:

  • Draft statute of the Federal Government for the adaptation of the German PIL rules (EGBGB) to the Rome II Regulation: Gesetzentwurf der Bundesregierung (2008) für ein Gesetz zur Anpassung der Vorschriften des Internationalen Privatrechts an die Verordnung (EG) Nr. 864/2007
  • Peter Kindler/Karla Klemann: Synopsis of the German PIL rules, Rome I and Rome II: “Synopse zum Inkrafttreten der Verordnungen Rom I und Rom II”

As well as the following information:

  • Michael Stürner/Moritz Brinkmann on the conference of the Academy of European Law in Trier on the Draft Common Frame of Reference which has taken place in March 2008: “The Draft Common Frame of Reference – Tagung der Europäischen Rechtsakademie am 6. und 7.3.2008 in Trier”
  • Erik Jayme/Carl Friedrich Nordmeier on seminars having taken place in Thrace (Greece) in April 2008 on private international law of family and succession law and in particular on legal questions of Muslim Greek nationals: “Griechische Muslime in Thrazien: Internationales Familien- und Erbrecht in europäischer Perspektive”

 

Rome I Regulation Published in the Official Journal

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The Rome I Regulation (see the dedicated section of our site, and the programme of the forthcoming conference organized by the Journal of Private International Law) has been published in the Official Journal of the European Union n. L 177 of 4 July 2008. The official reference is the following:

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ no. L 177, p. 6 ff.). Pursuant to its Articles 28 and 29, the regulation will apply from 17 December 2009, to contracts concluded after the same date. As it is widely known, Denmark and the United Kingdom did not take part in the adoption of the regulation and are not bound by it (see Recitals no. 45 and 46): however, the position of the latter State is currently being evaluated in the frame of the public consultation launched by the British Ministry of Justice. The responses to the consultation paper and the final decision of the UK government will be posted as soon as they are available.

Which Law Governed at Abu Ghraib?

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Which rights?Four Iraqis who were detained in Abu Ghraib have sued U.S. military contractors before American courts. The cases were filed on June 30, 2008, in federal courts of Maryland, Ohio, Michigan and Washington state, where individual contractors reside. The plaintiffs are represented by law firms in Philadelphia and Detroit and by the Centre for Constitutional Rights.

Details on the parties can be found here.

The cases raise an interesting issue of choice of law. Which law will U.S. courts apply? The four complaints (which can also be found here) address the issue superficially, by stating that the laws of the United States have been violated, which seems to imply that they govern. Here is an excerpt of one of the complaints, but they are all drafted similarly:

DEFENDANTS KNEW THAT THEIR TORTURE OF PRISONERS VIOLATED THE LAWS OF THE UNITED STATES

48 [Contractors] knew that military officials were prohibited from torturing prisoners by the Army Field Manual and other controlling law, and that any military official who were doing so were violating the law.

49 [Contractors] knew that the US government has denounced the use of torture and other cruel, inhuman or degrading treatment at all times. [Contractors] knew that it was illegal for them to participate in, instigate, direct or aid and abet the torture of X and other prisoners.

50 For example, in its Initial Report to the UN Committee Against Torture, the US Department of State note that “[t]orture is prohibited by law throughout the US. It is categorically denounced as a matter of policy and as a tool of state authority …. No official of the government, federal, state or local, civilian or military is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form” (…) The State Department’s Report on Human Rights Practices characterized the following as prohibited forms of torture: mock executions, sensory deprivation, repeated slapping, exposure to cold, stripping and blindfolding, food and sleep deprivation, threats to detainees or family members, dripping water on the head, squeezing of the testicles, rape and sexual humiliation.

51 [Contractors] knew that the ban on torture is absolute and no exigent circumstances permit the use of torture.

52 [Contractors] knew that the US intended and required that any person acting under the contract to the US would conduct themselves in accord with the relevant domestic and international laws.

53 [Contractors] knew and understood that the US does not condone torture of prisoners.

54 Defendants cannot credibly claim that the wrongful and criminal conduct of certain military and government personnel misled them into thinking that the torture of prisoners was lawful and permissible.

Given that American federal courts apply state choice of law rules, the issue will likely be addressed differently by each of the four district courts. Most readers will of course be aware that while a few American states still follow the traditional approach, most have moved on to the so called “modern approach”, such as interest analysis. Although the complaints refer to the Army Field Manual and to the contract concluded by the contractors, this looks to me like a tort action. The complaints also rely on the Alien Tort Claims Act (though solely for jurisdictional purposes), so the plaintiffs may argue that public international law applies.