First Issue of 2010’s Journal du Droit International

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The first issue of French Journal du droit international (Clunet) for 2010 was just released.

It includes three articles, but one only on private international law.

It is authored by Isabelle Barrière Brousse, who lectures at Aix Marseille University, and discusses the Impact of the Lisbon Treaty on Private international law (Le traité de Lisbonne et le droit international privé). The English abstract reads:

Since the evolution of European Community law already threatens the private international law of the Member States, will these systems survive the Lisbon Treaty ?

Despite the weakness of the legal basis of their competence, European authorities have already affected the rules concerning choice of law and of jurisdiction in many ways, and intend to exclude the Member States from the international scene by removing their right to conclude agreements with third countries. Will the Lisbon Treaty change this ? Between the affirmation of Community competence and respect of the Member States’ legal systems and traditions, the treaty’s influence seems to be difficult to forecast. Nevertheless, the emphasis on the role of the States and their National Parliaments and the very objective of creating a European judicial area while respecting diversity establish implied but real limitations on the expansion of Community rules in this area.

The Journal also offers four casenotes on judgments of the Cour de cassation, including In Zone Brands (Professor Sandrine Clavel) and one of the recent judgments of the Court on Franco-American parallel divorce proceedings (Johanna Guillaumé), and a casenote of the Hadadi judgment of the ECJ (Professor Louis d’Avout).

French Case on Law Governing Ownership of Paintings

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On February 3rd, 2010, the French Cour de cassation delivered a judgment on choice of law in personal property matters. This is only the fourth time the Court has directly addressed the issue in the last hundred years.

In 2000, a French born painter living in New York city had provided the defendant with 7 of his paintings. The defendant put them on the walls of the restaurant he had just opened in New York. In 2005, the painter passed away. In 2006, the restaurant closed. The defendant then took the paintings to France to auction them.

In the summer 2007, the widow of the painter sought interim relief before a French court in order to attach the paintings before the sale. The attachment was first granted, but the auction house (Camard & associés) and the defendant applied to set aside the attachment. The French court ruled in their favour in December 2007. The widow appealed to the Paris court of appeal, which dismissed the appeal. She then appealed to the Cour de cassation.

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Swiss Institute of Comparative Law: Programme of the Conference on the EU’s Proposal on Succession

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As we anticipated in a previous post, on Friday, 19th March 2010, the Swiss Institute of Comparative Law (ISDC) will host the 22nd Journée de droit international privé, organised in collaboration with the University of Lausanne (Center of Comparative Law, European Law and International Law – CDCEI). The conference will analyse the Commission’s Proposal on Succession: “Successions internationales. Réflexions autour du futur règlement européen et de son impact pour la Suisse”.

Here’s the programme:

Première session (09h00) – La proposition de règlement européen

Ouverture de la journée: Christina Schmid (director a.i., ISDC); Andrea Bonomi (director, CDCEI, Univ. of Lausanne)

Chair: Lukas Heckendorn Urscheler (Head of Legal Division, ISDC)

  • Mari Aalto (national expert, European Commission, DG FSJ): Introduction au projet européen en matière de succession;
  • Paul Lagarde (Univ. of Paris I): Les grandes lignes de la future réglementation européenne: l’approche unitaire et le rattachement à la résidence habituelle;
  • Andrea Bonomi (Univ. of Lausanne): Le choix de la loi applicable à la succession;

Discussion.

Chair: Andrea Bonomi (Univ. of Lausanne)

  • Olivier Remien (Univ. of Würzburg): La validité et les effets des actes à cause de mort;
  • Richard Frimston (Partner, Russell-Cooke LLP): The scope of the law applicable to the succession, in particular the administration of the estate;
  • Eva Lein (British Institute of International and Comparative Law): Les compétences spéciales dans la proposition de Règlement;

Discussion.

– – – – –

Deuxième session (14h00) – Round Table: L’impact du futur règlement sur le droit suisse

Chair: Andreas Bucher (Univ. of Geneva)

  • Peter Breitschmid (Univ. of Zurich)
  • Florence Guillaume (Univ. of Neuchâtel) (invited)

– – – – –

Troisième session (15h30) – Round Table: La reconnaissance des certificats d’héritiers

Chair: Christina Schmid (ISDC)

  • Andreas Fötschl (Univ. of Bergen and ISDC)
  • Paolo Pasqualis (notary in Venice, Council of the Notariats of the European Union – CNUE) (invited)
  • Franco del Pero (notary in Morges)

The conference will be held in French, English and German (no translation is provided).

For further information (including fees) see the conference’s programme and the registration form, available on the ISDC’s website.

(Many thanks to Prof. Andrea Bonomi)

Conference on Party Autonomy in Property Law

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On 27 and 28 May 2010 a conference on Party Autonomy in Property Law, organized by Erasmus School of Law and Leiden University, will be held at the Erasmus University Rotterdam, the Netherlands.

In international trade practice, the question often arises as to whether party autonomy or, more specifically, a choice of law possibility in matters of Property Law should be recommended or required. For example, can a French seller and a German buyer in a purchase agreement concerning movable or immovable assets agree that Dutch Law will be applicable in matters of ownership regarding these assets? Is party autonomy allowed or should it be allowed in other areas of Property Law, such as assignment of claims (receivables)?

This important question is not only answered differently in disparate legal systems but underneath it lie several and often conflicting legal interests. An example is the principle that legal acts in Property Law have not only an effect between the contracting parties but also against a third party.

During the Conference, these diverse aspects of ‘Party Autonomy in Property Law’ will be discussed by leading specialists in International Property Law. There are four central themes:

1. General aspects of party autonomy, as seen from the perspective of Continental Law as well as of Common Law;

2. Private International (Property) Law;

3. Developments and prospects in Europe and in European Law Projects (e.g. European conflict rules for property law?);

4. Assignment in Private International Law, Financial Instruments/the Collateral Directive; Insolvency Law.

For more information on the program, speakers and to register, please click here.

RELEASE OF LAST ISSUE OF DeCITA (vol. 11)

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DeCITA 11 (2009)
on international insolvency (Insolvencia internacional)

Release of the last issue of DeCITA (derecho del comercio internacional – temas y actualidades), the leading law journal on international commercial law and private international law in Latin America. The topic of this issue is international insolvency. In addition to the articles dedicated to this topic, and as usual, DeCITA offers a nourished panorama of the state of the law in different international organisations active in international commercial law.

Laura Carballo Piñeiro, Procedimientos concursales y competencia judicial internacional : anáéisi de dos conceptos clave

Louis d’Avout, Sentido y alcance de la lex fori concursus

David Morán Bovio, Secuencia de los trabajos sobre insolvencia en UNCITRAL

Beatriz Campuzano Díaz, La posición del TJCE con respecto a los problemas interpretativos que planteal el reglamento 1346/2000 en materia de insolvencia

Gioberto Boutin I, La insolvencia transfronteriza en el derecho internacional privado uniforme y en el Código Bustamente

Paula M. All/jorge R. Albornoz, La insolvencia transfronteriza en el derecho internacional privado argentino de fuente interna. Supuestos contemplados. Necessidad de reforma

Cecilia Fresnedo de Aguirre, La nueva ley uruguaya de concursos y reorganización empresarial : un importante avance en sintonía con los principios internacionales en la materia

Adriana V. Villa, El régimen de DIPr de la ley uruguaya de concursos de 2008 : sus avances con relacíon al sistema argentino actual

Luciane Klein Vieira/Carolina Gomes Chiappini, La problemática de la quiebra internacional en Brasil : ¿existen herramientas para la solucíon de conflictos internacionales ?

Among other articles on jurisprudence and development of international trade law, one should particularly noted :

Makane Moïse Mbengue, The Rise of Private Voluntary Standards in international Trade : A Brief Survey of Current Developments

The table of contents can be read here.

Dallah, Renvoi and Transnational Law

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In December, three members of the UK Supreme Court granted leave to appeal in Dallah v. Pakistan.  

The case concerns the enforcement of an ICC arbitral award in the UK. In a nutshell, the Ministry of Religious Affairs of Pakistan had negotiated with Saudi company Dallah a contract whereby Dallah would provide services (building accomodation in particular) for Pakistani pilgrims visiting Mecca for the Hajj. But the contract was eventually signed by a Pakistani Trust which was to later on lose legal personality under Pakistani law. When the dispute arose, Dallah initiated arbitration proceedings against the Government of Pakistan. 

The central issue was therefore whether the arbitral tribunal had jurisdiction over the Government of Pakistan, which was not a signatory of the contract including the arbitration clause. A distinguished arbitral tribunal sitting in Paris held that it had. Both the English High Court and the English Court of appeal disagreed and thus denied enforcement.  

The debate before the English courts was and I guess will be about a variety of issues of English and international arbitration law that I will barely touch upon here, including discretion  to refuse enforcement under the 1958 New York Convention or the standard of review of arbitral decisions on jurisdiction. But the case also raised a very interesting and arguably novel issue of choice of law. And it involved not only the English but also the French conflict of laws.

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Annual Survey of French PIL of E-Commerce

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For several years, Professor Marie-Elodie Ancel (Paris Est Creteil Val de Marne University, formerly Paris 12) has published an annual survey on French private international law of E-commerce in the French monthly law review Communication, Commerce Electronique.

The survey for 2009  has just been published in the first issue of the review for 2010. It discusses a variety of issues, including jurisdiction, choice of law and foreign judgments. It reports on both cases and legislation, French and European.

Communication, Commerce Electronique is available online for lexisnexis suscribers.

BIICL event: Private International Law – Challenges for Today’s Markets

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The British Institute of International and Comparative Law (BIICL) hosts an event titled “Private International Law – Challenges for Today’s Markets“ as part of the Herbert Smith Private International Law Seminar Series at the BIICL.

What is this event about? This conference shall offer a platform to exchange views of different industry sectors on current Private International Law problems they encounter. The speakers will deal with various issues such as the difficult new rules in the Rome I regulation on financial market contracts, current Private International law problems arising in the field of Swaps and Derivatives and in the Energy sector and will look in a more general way at the pitfalls of Private International Law for business contracts between important market players.

Date: Tuesday 9 February 2010, 17:00 to 19:00

Location: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square,London, WC1B 5JP

Chair: Lord Justice Rix, Royal Courts of Justice

Speakers: 1) Joanna Perkins, Secretary to the Financial Markets Law Committee, 2) Edward Murray, Partner, Allen & Overy London; Chair of the ISDA Financial Law Reform Committee, 3) Murray Rosen QC, Partner, Herbert Smith LLP, 4) Matthew Evans, Chief Counsel, BG Group plc

Books and Articles on Private International Law

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Our readers will be interested to see that Dean Symeon Symeonides has compiled a list of books and articles published on the topic of private international law in the past year.  See here for the list.

Maher v Groupama Grand Est: Law Applicable to Direct Action Against Insurer

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This post was written by Mrs Jenny Papettas, a PhD Candidate and Postgraduate Teaching Assistant at the University of Birmingham.

The Court of Appeal delivered its judgment in the case of Maher v. Groupama Grand Est. on 12 November 2009, upholding both the decision and reasoning of Blair J. in the Queen’s Bench Division. The case, concerning issues of applicable law in a direct action against an insurer, is noteworthy because it is illustrative of the type of case that will fall to be decided under Article 18 Rome II and serves as a reminder that individual Member State reasoning on these issues is obsolete under that Regulation.

The Claimants, an English couple, Mr. and Mrs. Maher, were involved in a collision in France with a van being driven negligently by French resident M Marc Krass.  M Krass was sadly killed in the collision. The claim was brought directly against M Krass’ third party liability insurer. Liability and the application of French law to the substantive issues in the case were not at issue. The outstanding issues to be determined by the court were; (1) Whether damages should be assessed in accordance with French law or English law, (2) Whether pre-judgment interest on damages should be determined in accordance with French law or English law.

The Assessment of Damages

Under English law the assessment of damages in tort claims falls to be decided as a procedural issue (Harding v. Wealands [2007] 2 AC 1). The issue in Maher was whether in a direct action against the tortfeasor’s insurer the issue was to be characterised as tortious, with damages being dealt with as a procedural issue under the lex fori or as a claim founded in contract, where assessment of damages is dealt with as a substantive issue by the applicable (French) law as stipulated in both the Rome Convention (implemented in English law by Contracts (Applicable Law) Act 1990, s.2 and Sch.1, Art.10(1)(c)) and the Rome I Regulation. Despite the Defendant’s arguments that the claim only arose because it was contractually obliged to indemnify the insured and that therefore the claim was contractual in nature, the Court, citing Macmillan Inc v. Bishopgate Investment Trust plc (No. 3) [1996]1 WLR 387, held that it was not the claim that fell to be characterised but each individual issue. Further citing Law Com Report No. 193 (Private international Law: Choice of Law in Tort and Delict (1990)) where it was stated that direct actions against liability insurers are better seen as an extension of a tortious action (para 3.51) the Court held that since liability was admitted and the insurer therefore had to meet the tortfeasor’s liability the claim was tortious with the consequence that assessment of damages was procedural and a matter for the lex fori.

Pre-judgment Interest

With regard to pre-judgment interest the Court found that the issue was split. The existence of a right to such interest was held to be a substantive issue whilst the calculation of any interest, being partially discretionary in nature under s 35A Supreme Court Act 1981, was procedural. However, although the quantification of interest would as a result be determined with reference to English law, s35A is flexible enough to allow the Court to apply French rates if it is necessary to achieve justice in the circumstances.

Anticipating  Rome II

Article 15 of Rome II provides a lengthy list of issues which will be determined by the applicable law, largely disposing of any possibility of subjecting different issues to different laws. This extends to the assessment of damages thereby expanding the scope of Rome II into areas previously classified as procedural under the traditional English substance /procedure dichotomy.  Indeed, it was acknowledged during Maher that the application of Rome II would have produced a different result in this regard.

However an intriguing question remains as to whether Article 18, which provides for direct actions against insurers, will be interpreted so that the injured party’s choice of either the applicable law or the law of the insurance contract will govern the whole claim or simply the question of whether a direct action can be permitted. Furthermore it will be interesting to see how the issue of characterisation plays out. For example, will the insurer be able to rely on the contractual limits of the policy where the applicable law to a direct action is determined by the law applicable under the Regulation. The only certainty is that such questions will have to be answered with reference to the autonomous definitions which are yet to develop and the methods currently employed by Member State courts will be obsolete for dealing with issues which fall within the remit of Rome II.