A new law of arbitration was adopted yesterday in France. The Décret n° 2011-48 of 13 January 2011 portant réforme de l’arbitrage amends the French Code of Civil Procedure accordingly. The old provisions of the Code on arbitration dated back to 1980 and 1981. The reform is concerned with both domestic and international arbitration.

The new provisions are available here. An explanatory report can be found here.

Recently, the January/February issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

Here is the contents:

•  Heinz-Peter Mansel/ Karsten Thorn/Rolf Wagner: “Europäisches Kollisionsrecht 2010: Verstärkte Zusammenarbeit als Motor der Vereinheitlichung?” – The English abstract reads as follows:

The article gives an overview on the developments in Brussels in the judicial cooperation in civil and commercial matters, covering a period from November 2009 until November 2010. It summarises current projects and new instruments that are currently making their way through the EU legislative process. It also refers to the laws enacted on a national level in Germany which were a consequence of the new European instruments. Furthermore, the article shows areas of law where the EU has made use of its external competence. The article discusses both important decisions and pending cases before the ECJ as well as important decisions from German courts touching the subject matter of the article. In particular, it critically analyses two decisions from the Court of Appeal of Munich and the Court of Appeal of Berlin. These two courts used the Grunkin Paul case as a starting point to develop their own kind of recognition principle based on art. 21 Treaty on the Functioning of the European Union, thereby, in the author’s view, deciding legal questions that would have been better left to the ECJ to decide. In addition, the present article turns to the current projects of the Hague Conference as well.

•  Theodor Schilling: “Das Exequatur und die EMRK”- the English abstract reads as follows:

The article raises the question of the requirements the ECHR may pose for the enforcement of foreign judgments. It starts with discussing the human rights protection of creditor and debtor in enforcement proceedings within a single country. It goes on to consider that protection in foreign enforcement proceedings with special emphasis on the role of the exequatur and of possible alternatives to it. The next item is the level of protection granted by human rights law in foreign enforcement proceedings, exemplified by the Stolzenberg-Gambazzi story and a judgment of the German Federal Court. Finally the discussion turns to the abolition of the exequatur by certain EU regulations. The overall result is that the demands of the ECHR concerning the protection of the debtor in foreign enforcement proceedings are not very high but that human rights law is rather accommodating to the more muscular approaches to enforcement.

• Matthias Lehmann/André Duczek: “Zuständigkeit nach Art. 5 Nr. 1 lit. b EuGVVO – besondere Herausforderungen bei Dienstleistungsverträgen” – the English abstract reads as follows:

The subject of this article is the application of Article 5 (1) (b) of the Brussels I Regulation on service contracts. The authors criticise the recent ECJ judgment in Wood Floor Solutions Andreas Domberger GmbH v. Silva Trade SA, case No. C-19/09. They argue that the decision conflicts with the primary goals of the Brussels I Regulation, because (1) the competent court cannot be determined with certainty since the determination would depend on factual circumstances that may occur after the conclusion of the contract; (2) the court at the place where the main service is rendered is not necessarily close to the dispute between the parties; (3) the determination of the competent court would require a lot of futile time and effort; and (4) if no main service can be found, the service provider would be able to bring the claim at its domicile, contrary to the principle of actor sequitur forum rei. In light of these problems, the authors suggest a different approach: In their view, the court at the place of performance of the service that is the subject of litigation should have jurisdiction. Such interpretation would be in line with the goals of legal certainty and proximity and solve most of the problems that the ECJ judgment has produced. But it would create another difficulty since it allows the provider of services in multiple locations to bring its claim, e. g. for payment, virtually anywhere. This problem, the authors suggest, can be avoided through a contractual stipulation on the place of performance, which is explicitly allowed by Article 5 (1) (b) Brussels I Regulation.

•  Jörg Pirrung: “Gewöhnlicher Aufenthalt des Kindes bei internationalem Wanderleben und Voraussetzungen für die Zulässigkeit einstweiliger Maßnahmen in Sorgerechtssachen nach der EuEheVO” – the English abstract reads as follows:

Judgment and Opinion in case A give rise to the hope that the ECJ will interpret the Brussels IIa regulation 2201/2003 in a way leading to success fthe Brussels I regulation 44/2001, the former Brussels Convention of 1968. In view of the entry into force of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children for all EU States, envisaged for 2010 (or 2011), the application of regulation 2201/2003 by courts in the EU should be open-minded. In order to avoid, as far as possible, differences in the development of the law concerning international jurisdiction and recognition of decisions in custody cases in the EU on the one hand and in the relations to the contracting states of the Hague Convention on the other hand, the courts in the EU should try to apply the regulation in conformity with the understanding of the international treaty.

•   David-Christoph Bittmann: “Das Verhältnis der EuVTVO zur EuGVVO” – the English abstract reads as follows:

 Today European Civil Procedure Law offers creditors several ways of executing a title in another Member State. Beside the “traditional” way of applying for a declaration of enforceability in the second state – as foreseen by Regulation (EC) 44/2001 – the creditor can make use of some modern legal instruments, which provide simplified procedures for getting a European title enforceable in all Member States. To reach this aim the European legislator especially created the European Payment Order and a Small-Claim-Procedure. Some years before, as a first step towards an original European title, the European Enforcement Order for uncontested claims was established by Regulation (EC) 805/2004. With the rising number of such parallel-regulations concerning cross-border enforcement the question of how to delineate the scope of application of these instruments appeared. A special problem discussed in German literature and jurisprudence was, if it should be possible for a creditor to apply for a declaration of enforceability in the second state according to Regulation (EC) 44/2001 although he already holds a European Enforcement Order issued by the court of the first state. The German Federal Supreme Court (BGH) denied this possibility by stating that the creditor does not have an interest in getting a declaration of enforceability when he can reach his aim of cross-border enforcement by making use of the European Enforcement Order. This article discusses the decision of the Federal Supreme Court.

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Once again, Dean Symeon Symeonides has compiled his annual choice of law survey.  Here is the abstract:

This is the Twenty-Fourth Annual Survey of American Choice-of-Law Cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States.  The Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2010. Of the 1,271 appellate conflicts cases decided during this period, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and, particularly, choice of law.

This has been an unusually rich year in choice-of-law developments. Some of the highlights include:
* Four decisions by the U.S. Supreme Court (on extraterritoriality, sovereign immunity, class actions, and the Hague Convention on International Child Abduction, respectively), and several circuit court decisions on the extraterritorial reach of federal laws;
* A constitutional amendment in Oklahoma purporting to prohibit its courts from using international law, foreign law, and Sharia law;
* Three cases involving efforts to recover art lost during the Nazi era and also implicating federal affairs questions;
* Several cases affirming class certification in consumer protection cases and one case holding that the application of one state’s consumer credit law to soliciting out-of-state lenders was unconstitutional under the dormant Commerce Clause;
* A major decision by the California Supreme Court refining its comparative impairment approach and a richer than usual assortment of cases involving tort, contract, product liability and insurance conflicts, as well as domestic relations conflicts; and
* Several opinions written by Judge Posner in his always interesting style, including one questioning the value of using foreign-law experts.

The full survey is available for free here.

Thanks to Dean Symeonides for providing this valuable resource on the state of American conflicts law.

On December 22nd, the European Court of Justice delivered its judgment in Joseba Andoni Aguirre Zarraga v. Simone Pelz. For the timebeing, it is only available in Spanish, German and French.

The case was concerned with a Spanish judgment which had ruled on the divorce of a German-Spanish couple, and had ordered the return of a child to Spain. According to Article 42 of the Brussels IIa Regulation, this part of the judgment was immediately enforceable in Germany, as exequatur has been abolished for such judgments. Yet, the German party tried to resist enforcement in Germany on the ground that the Spanish judgment had been rendered in violation of human rights, as it appeared that the child had not been heard in the Spanish proceedings, and this was arguably contrary to Article 24 of the European Charter on Human Rights.

The Court of appeal of Celle, Germany, thus referred the matter to the ECJ, and asked whether, despite the abolition of exequatur, enforcing courts still had the power to review judgments rendered by courts from other member states on the ground that they would have been made in gross violation of the European Charter on Human Rights.

The ECJ answered that there was no such power. It put forward two reasons in support of its decision. First, in matters regarding child custody, time is of the essence and judgments should be immediately enforced. Second, the principle of mutual trust demands that foreign judgements be not reviewable on other grounds than those kept by the Regulation.

The German party should thus have challenged the Spanish judgment in Spain, and not in Germany.

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