In 2000, the Spanish Civil Procedure Act stated that within six months after its entry into force the Government would propose a draft law on international cooperation. Many years have elapsed, and the law, obviously needed, has not yet seen the light. The last Foro de Arbitraje y Litigación Internacional, celebrated in FIDE (Fundación para la Investigación sobre el Derecho y la Empresa) in February, addressed the issue, having F.J. Garcimartín Alférez (professor of private international law) and A. Mejía Errasquín (General Director for International Legal Cooperation and Relations with the Confessions of the Ministry of Justice) as speakers. Numerous references were made to a draft prepared in 2001 by M. Virgos Soriano, professor of private international law, where all the important issues of a future law on international cooperation, especially exequatur, are dealt with. For those interested in this topic here is a summary of the meeting.

Many thanks to Carlos Espósito, of  aquiescencia.

The UAM (Universidad Autónoma de Madrid) Faculty of Law will host the 1st UAM International Conference on  EU Law. Recent trends in the case law of the Court of Justice of the  EU (2008-2011) the 14-15 July 2011. This Conference is meant to be a forum  for the critical  analysis of the most recent ECJ case law. The programme includes two plenary  lectures and eight specialized panels, one of them devoted to judicial cooperation in civil matters. Informants for the panel will  be selected on the basis of proposals and abstract submitted in  response to a Call for Papers. 

The deadline for the call for papers is 10th April 2011.

For more information see here

The last issue of the Revue critique de droit international privé was just released. It contains two articles and several casenotes. The full table of content can be found here.

In the first article, Dr. Marius Kohler and Dr. Markus Buschbaum discuss the concept of recognition of authentic instruments in the context of cross-border successions (La « reconnaissance » des actes authentiques prévue pour les successions transfrontalières. Réflexions critiques sur une approche douteuse entamée dans l’harmonisation des règles de conflits de lois). The English abstract reads:

However advantageous the introduction of a European inheritance certificate may be, as envisaged by the Commission’s proposed Regulation on international successions, it is in its current form likely to create friction because of the way in which it organises the relationship with national inheritance certificates. It would therefore be wise to restrict the use of the European certificate to international successions, where it could then be drafted on basis of the national one, and to limit its effects to the Member States of destination. Moreover, as far as the free circulation of authentic instruments in general is concerned, the Regulation raises serious misgivings as to the use made by the proposal of the concept of mutual recognition. It appears that this concept – appropriate as it is for judicial decisions – is unsuitable to promote the circulation of authentic instruments.

In the second article, Professor Malik Laazouzi, who teaches at St Etienne University, discusses the impact of the recent Inserm decision of the French Tribunal des conflits (a translation of which can be found here) on choice of law in administrative contracts (L’impérativité, l’arbitrage international des contrats administratifs et le conflit de lois. A propos de l’arrêt du Tribunal des conflits du 17 mai 2010, Inserm c/ Fondation Saugstad). I am grateful to the author for providing the following summary:

The Inserm case deals primarily with international arbitration issues. But the way of reasoning used to decide the case could also interfere with the handling of public law matters involving French public entities in private international law by French jurisdictions.

How did the issue occur ?

A French public law entity (Inserm) entered into a contract with a Norwegian Fondation (Letten F. Sugstad) in order, inter alia, to achieve the implementation of a research facility in France, including a construction project. An arbitration occurred to decide over the termination of the agreement by the Fondation. The arbitral award, rendered in France, dismissed Inserm’s claims. The French entity then applied to set aside the award simultaneously before french civil and administrative courts. To assert the jurisdiction of the letter, Insermargued that the dispute arose out of a French administrative contract.

The case has given rise to the intricate issue of allocation of jurisdiction between civil and administrative courts. As a matter of consequence, it has been brought before the Tribunal des conflits.

The question which the Tribunal des conflits had to solve is complicated to enunciate. Which one of the French civil or administrative courts have jurisdiction to set aside an international arbitral award rendered in France, in a dispute arisen out of the performance or termination of a contract to be performed on the French territory and entered into between a French public law entity and a foreign individual or entity ?

The Tribunal des conflits decided, on 17 may 2010, that the application to set aside the award in such a case is to be brought before civil courts, even if the contract is an administrative one under French law. This solution allows an exception when the contract entered into by a french public entity is governed by a mandatory administrative regime. In this particular case, administrative courts retain jurisdiction to decide over challenges to the arbitral award.

This decision is strictly limited to some international arbitration matters involving a contract entered into by a french public entity. When it is not the case – i.e. when no french public entity is involved – French administrative courts does not intervene at all.

This case is worth mentioning within the field of private international law. The distinction it introduces between mandatory and non mandatory administrative rules in the international arena could reshape the very idea of the split in methods to solve conflict of laws issues according to the public or private law nature of the rules at stake.

An International Academy for Arbitration Law will be launched in Paris in July 2011.

 The Academy is an initiative of the French Arbitration Committee (Comité Français de l’Arbitrage (CFA)) and is presided by Professor Emmanuel Gaillard. The Board of Directors is composed of the Academy’s President, Alexandre Hory and Yas Banifatemi as co- Secretary Generals, Jean-Georges Betto as Treasurer, Professor Marie- Elodie Ancel and Professor Jean-Baptiste Racine as members of the Selection Committee, and Maitre Philippe Leboulanger as Chair of the CFA. The Academy also has a Board of Advisors which includes Professor George Abi-Saab (Egypt), Professor Liza Chen (China), Professor Eros Grau (Brazil), Professor Horacio Grigera Naon (Argentina), Judge Gilbert Guillaume (France), Professor Gabrielle Kaufmann-Kohler (Switzerland), Professor Alexander Komarov (Russian Federation), Professor Pierre Mayer (France), Professor Michael Reisman (USA), Professor Dorothé Sossa (Benin), Professor Christoph Schreuer (Austria), and V.V. Veeder QC (UK).

The Academy will offer three-week Summer Courses to students and young practitioners interested in the field, covering both international commercial  arbitration and international investment arbitration. The Summer Courses will be given in Paris from 4 July to 22 July 2011, and will be offered in English. They will include a General Course, Special Courses, Workshops on institutional arbitration, an Inaugural Lecture and The Berthold Goldman Lecture on historic arbitration stories.

For the first Session of the Academy in 2011, the General Course will be taught by Professor Christoph Schreuer. The Special Courses will be taught by Professor George Bermann, Professor Pierre- Marie Dupuy, Professor Diego Fernandez Arroyo, Professor François Knoepfler, Professor Pierre Mayer, Dr. Klaus Sachs, and Maître Michael Schneider. The 2011 Workshops will be offered by ICSID, ICC , and the PCA. The Inaugural Lecture will be delivered by Professor Pierre Lalive on the topic “Is Arbitration a Form of International Justice?”. The Berthold Goldman Lecture on historic arbitration stories will be given by V.V.  Veeder QC on the Lena Goldfield arbitration.

 Interested students and young practitioners are invited to apply to the Academy by April 30, 2011. The Application Form and the complete Program can be viewed on the Academy’s Website at www.arbitrationacademy.org.

Many thanks to Marie-Élodie Ancel.

Yesterday, a Paris criminal court declined jurisdiction over the proceedings initiated against Joseph Weiler for a book review published on his website (original judgment available here, Weiler offers translation of part of it here).

We had reported earlier on this case: an Israel based scholar had initiated criminal libel proceedings in France against Weiler, a U.S based law professor, for the online review of her book by the Dean of Cologne law school.

Jurisdiction

The court settled the case on jurisdiction. It held that no evidence had been provided that the site was accessible and actually consulted in France within 3 months of the publication of the book review. 3 months was the time period within which criminal libel proceedings can be prosecuted under French law. The “plaintiff” had only provided evidence of the accessibility of the site more than 110 days after such date. 

Abuse of Right

The court then moved on to entertain Weiler’s counter claim. Weiler had filed a counter tort action for abuse of the right to sue.

The court found that there had been such abuse. First, the “plaintiff” had explained that she had sued in France because it was cheaper, and because the claim had no chance of being successful anywhere else. The court held that this was forum shopping. Secondly, the court found that the plaintiff should have known that she had no chance on the merits. Importantly, the court held the review, which was moderate, expressed a scientific opinion.

Weiler had asked for € 10,000 in damages. He got € 8,000.