November 2009 – Page 2 – Conflict of Laws

Publication: Hess, Europäisches Zivilprozessrecht

November 12, 2009/in /by Veronika Gaertner

Prof. Dr. Burkhard Hess (Heidelberg) has published a comprehensive work on European Law of Civil Procedure:

Europäisches Zivilprozessrecht

(C.F. Müller 2010. XXXII, 752 pages, Hardcover 128 EUR; ISBN 978-3-8114-3304-5)

The publication provides an analysis of the European Community’s legislative competences including the new legal situation under the Treaty of Lisbon, the different instruments of European procedural law, their interpretation and the relationship between the different Community instruments. In addition, the book discusses the preliminary reference procedure provided by Art. 234 EC and gives an outlook on the future developments of European procedural law as well as the possibility of creating a uniform code of European civil procedure.

In particular, the book analyses all relevant Community instruments:

Brussels I Regulation
Brussels II bis Regulation
legal instruments on Judicial Assistance (Service of Documents, Taking of Evidence, Legal Aid)
Insolvency Regulation
European Order of Payment Procedure
European Enforcement Order for Uncontested Claims
Small Claim Procedure
Maintenance Regulation
Directive on Mediation

More information on this book can be found here.

Conference on the Role of Ethics in International Law

November 12, 2009/in /by Trey Childress

Some of our readers will be interested in the following conference this Friday in Washington, D.C.

The Role of Ethics in International Law

Event Information
Friday, November 13, 2009 / 8:30 AM
Tillar House/Cosmos Club
Washington, D.C.

Each year, the International Legal Theory Interest Group of the American Society of International Law convenes a special conference to consider an important theoretical issue in international law. This year, the conference will focus on the Role of Ethics in International Law. Special attention will be paid both to the role of ethics in public and private international law, as well as to normative and theoretical perspectives. The panels will feature the following distinguished scholars.

The Role of Ethics in Public International Law
Moderator: Brian Lepard, University of Nebraska School of Law
Roger P. Alford, Pepperdine University School of Law, Moral Reasoning in International Law
Oona A. Hathaway, Yale Law School, Why Do States Comply With International Law?
Edward T. Swaine, George Washington University Law School, Breaching

The Role of Ethics in Private International Law
Moderator: Trey Childress, Pepperdine University School of Law
Lea Brilmayer, Yale Law School, The Ethical Problem in Private International Law
Perry Dane, Rutgers School of Law, The Natural Law Challenge to Choice of Law
Dean Symeon C. Symeonides, Willamette University College of Law, The Quest for Multistate Justice

Normative and Theoretical Perspectives
Moderator: Tim Sellers, Baltimore University School of Law
Samantha Besson, University of Fribourg/Duke University School of Law, The Nature of Human Rights Theory
H. Patrick Glenn, McGill University, The Ethic of International Law
Mary Ellen O’Connell, Notre Dame Law School, FindingJus Cogens: Preemptory Norms and Natural Law Process

Lunch will be served as part of this free conference for ASIL members ($15.00 for non-ASIL members). For further information, see here.

And the Winner Is …

November 11, 2009/in /by Gilles Cuniberti

The awards of the most noticeable cases of the ECJ go to:

Centros: 5 votes

and

Gasser: 5 votes

But let’s congratulate also:

Owusu: 3 votes

Krombach: 2 votes

Most Noticeable Cases of the ECJ

November 10, 2009/10 Comments/in /by Gilles Cuniberti

On Monday November 23rd, 2009, the Master in European Litigation of the university of Luxembourg will celebrate its tenth anniversary.

One of various talks to be given throughout the afternoon will present and discuss the Ten Most Noticeable Cases of the European Court of Justice in the Last Decade. No doubt, the speaker will not focus specifically on private international law, but it is my intention to urge him to include at least one.

Now, the next question is of course, Which one?

I am therefore asking readers: which case (or couple of cases) of the ECJ has been the most noticeable one in the last decade for private international lawyers? and since we got started, what about the most noticeable one since the creation of the Court?

Netherlands Proposal on Private International Law (“Book 10”)

November 9, 2009/in /by Xandra Kramer

A Dutch Proposal on Private International Law, to be included as Book 10 of the Civil Code of the Netherlands, has been put before Parliament (Tweede Kamer, 2009-2010, 32137, Vastellings- en Invoeringswet Boek 10 Burgerlijk Wetboek; with Memory van Toelichting/Explanatory Memorandum). This long-awaited proposal is a Consolidating Act of 165 provisions, merging 16 existing Conflict of Laws Acts (such as those on Names, Marriage, Divorce and Corporations), with some minor amendments. New are the 17 general provisions, containing rules on, amongst others, the application of choice of law rules, public policy, special mandatory rules, party autonomy, and capacity, though these largely reflect the current rules formulated in case-law or laid down in the special acts. Where applicable, reference to the relevant Conventions and EU Regulations is made. As for Rome I and Rome II, the Proposal provides that these Regulations also apply where the case falls outside the (material) scope of these Regulations.

Once the Proposal is adopted, this Book 10 of the Civil Code will replace the existing special PIL acts. Since it is part of the Civil Code, it only includes choice of law rules. International jurisdiction, recognition and enforcement and other international procedural issues, as far as not governed by international and EU instruments, will still be regulated by the Code of Civil Procedure.

See for earlier developments on Dutch Private International Law, Kramer, IPRax 2007/1 (overview 2002-2006) and Kramer, IPRax 2002/6 (overview 1998-2002).

Publication: International Jurisdiction and Commercial Litigation.

November 9, 2009/in /by Xandra Kramer

International Jurisdiction and Commercial Litigation. Uniform Rules for Contract Disputes, by Hélène van Lith, T.M.C. Asser Press (distributed by Cambridge University Press), 2009.

This interesting book includes a comprehensive analysis of the basic approaches to international jurisdiction in commercial contracts, and compares the jurisdictional systems of major continental European countries, the UK, the US and the Brussels Regulation. The author explores whether any common grounds exist in international jurisdiction rules, and assesses the feasibility of a uniform global system for international contract disputes, also in relation to the previous work of the Hague Conference on a worldwide jurisdiction convention.

This book is the commercial edition of a Ph.D., defended at Erasmus University Rotterdam in 2009.

Annual Conference of the American Association of Private International Law (ASADIP)

November 9, 2009/in /by Andrew Dickinson

The American Association of Private International Law (Asociación americana de derecho internacional privado ASADIP) will hold its third annual conference “International Business Law in a time of change” on 12 and 13 November in Venezuela, Isla de Margarita). A special tribute will be given to Tatiana Maekelt, who was one of the most outstanding conflicts scholars of Latin America.

Among the topics that will be addressed and which might interest members of this list are:

Bernard Audit ( Paris II Panthéon-Assas University) on “Problemas actuales del convenio arbitral: efecto negativo, extensión a otros contratos y a otros miembros del grupo societario”
Georges Bermann (ColumbiaUniversityl) on “Recent Trends in Parallel Litigation”
Herbert Kronke (Heidelberg University) on “Transnational Certainty and the Convention on Intermediated Securities –Reflections on Key Issues”
David P. Stewart (Georgetown University) on “Companies and Human Rights: Litigation in the United States Under the “Alien Tort Statute”
Juan M. Velázquez Gardeta (Basque Country University) on “Challenges of E-Commerce: North American Case Law and the Future of Latin America”
Didier Opertti Badán (Catholic University of Uruguay) on “The Situation of Private International Law in a Context of Globalization”

For more information, please consult the website of the conference: http://www.negociosinternacionales.com.ve/

and here to ask for your membership to the associacion.

Time to Update the Rome I Regulation

November 6, 2009/5 Comments/in /by Andrew Dickinson

The Council has adopted a corrigendum to all versions of the Rome I Regulation to correct what appears to be an “obvious error”. Art. 28, which had previously provided that the Regulation would apply to contracts concluded “after” (French: “après”; German: “nach”) 17 December 2009, will now refer to contracts concluded “as from” (French: “à compter du”; German “ab”) 17 December 2009, bringing it in line with Art. 29 which requires that the Regulation be applied “from” 17 December 2009. The corrigendum was first published on 8 October and itself revised on 19 October. Under the procedures for corrigenda (set out in a Council Statement of 1975), the amendment will apply unless the European Parliament took objection within 8-days (and there is no reason to believe that this is the case). It is understood that the text of the corrigendum will appear in the Official Journal later this month.

The change would appear satisfactorily to put to bed the lacuna which had troubled the German delegation to the Council’s Civil Law Committee, with the result that lawyers concluding agreements on 17 December 2009 can now rest more easily. Any legal opinions relating to such contracts can now, with confidence, be based on the Rome I Regulation (as opposed to the Rome Convention).

Unfortunately, those grappling with the Rome II Regulation do not have the same comfort. As has been highlighted on these pages, there remains a controversy as to whether the Regulation applies to events giving rise to damage “which occur after” 20 August 2007 (the Regulation’s apparent entry into force date under Art. 254 EC) or those occurring “from”/”after” 11 January 2009 (the Regulation’s application date) (see Arts. 31-32). The problem here is not so much the use of the word “after” in Art. 31 in contrast to the word “from” in Art. 32 (a mere trifle by comparison), but the fact that the Regulation uses different terminology (“entry into force”; “application”) in these two provisions dealing with its temporal effect and does not (explicitly, at least) stipulate an entry into force date in either of them. Commentators disagree as to the correct solution, and a division of opinion has emerged (for example) in England (where the majority favour 20 August 2007 as the relevant date) and Germany (where opinion is divided, but is understood numerically to favour 11 January 2009). Member State courts will, no doubt, need to grapple with this soon. The question is: who will get there first, and which solution will they prefer?

Bonanza at the British Institute

November 5, 2009/3 Comments/in /by Andrew Dickinson

There’s plenty for private international law aficionados to devour in programme of forthcoming events at the British Institute of International and Comparative Law.

First, on Friday 6 November, Jonathan Faull, Director General of the Commission Justice, Freedom and Security (JLS) Directorate is giving the Chalfen Memorial Lecture on “Law-making in Brussels”, giving perhaps an insight as to the likely future direction on civil justice policy in light of the forthcoming Stockholm Programme.

Secondly, on Tuesday 10 November, the Institute offers a first reaction to the Commission Proposal on Cross-Border Succession and Wills. Chaired by Professor Jonathan Harris (University of Birmingham), the speakers include Professor Paul Matthews (King’s College, London), Richard Frimston (solicitor, London) and Oliver Parker (Ministry of Justice).

Thirdly, on 18 November 2009, in what promises to be a lively event, Professor Christian von Bar (Universität Osnabrück) will be entering the lion’s den to speak on the controversial topic of “A Model Civil Code for Europe?”. Believers, agnostics and conflicts lawyers are equally welcome to register. Lord Justice Rix chairs.

Last (but by no means least), the Herbert Smith Private International Law Seminar Series continues on 9 December 2009 with a session entitled “Jurisdiction Agreements on Trial: Current Problems – Future Solutions“. Chaired by Filip De Ly (Erasmus University, Rotterdam), the speakers include Barbara Dohmann QC, Professor Harris and Professor Trevor Hartley (joint reporter for the Convention on Choice of Court Agreements).

The author is a Visiting Fellow in Private International Law at the British Institute of International and Comparative Law

Unfair arbitration clause before the ECJ

November 1, 2009/2 Comments/in /by Andrew Dickinson

In a recent decision of October 6, 2009 (C 40/08 – Asturcom Telecomunicaciones SL v. Maria Cristina Rodríguez Nogueira) the European Court of Justice held that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair.

As in the Elisa María Mostaza Claro v. Centro Móvil Milenium SL (C-168-05) case, the dispute arose from a subscription contract for a mobile telephone concluded between Asturcom and Mrs Rodríguez Nogueira. The contract contained an arbitration clause under which any dispute concerning the performance of the contract was to be referred for arbitration to the Asociación Europea de Arbitraje de Derecho y Equidad (European Association of Arbitration in Law and Equity) (‘AEADE’). The seat of that arbitration tribunal, which was not indicated in the contact, was located in Bilbao.

An arbitral award condemned Mrs Rodríguez Nogueira to pay EUR 669,60 to Asturcom. The consumer neither participated into the arbitral proceedings nor did she intend to get the annulment of the award, as permitted by the Spanish Arbitration Law.

Asturcom brought an action before the Juzgado de Primera Instancia No 4 de Bilbao for enforcement of the award.

First, the Spanish Court of First Instance rules that the arbitration clause contained in the subscription contract is unfair. However, the Spanish Law on Arbitration does not allow the arbitrators to examine of their own motion whether unfair arbitration clauses are void and secondly, the Spanish Code of Civil Procedure (Ley 1/2000 de Enjuiciamiento Civil) does not contain any provision dealing with the assessment to be carried by the court or tribunal having jurisdiction as to whether arbitration clauses are unfair when adjudicating on an action for enforcement of an arbitration award that has become final.

In those circumstances, the Juzgado de Primera Instancia decided to stay the proceedings and to refer to the Court the following question for a preliminary ruling:

“In order that the protection given to consumers by [Directive 93/13] should be guaranteed, is it necessary for the court hearing an action for enforcement of a final arbitration award, made in the absence of the consumer, to determine of its own motion whether the arbitration agreement is void and, accordingly, to annul the award if it finds that the arbitration agreement contains an unfair arbitration clause that is to the detriment of the consumer?”

The ECJ held that national courts having jurisdiction for the enforcement of arbitral awards made in the absence of the consumer are “required to assess of their own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, they can carry out such an assessment in similar actions of a domestic nature.

If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause”.