On October 22 and 23 the China University of Political Science and Law (CUPL) will host an international workshop on “Private International Law in the Context of Globalization: Opportunities and Challenges“ in Beijing.  The workshop will bring together leading conflict of laws scholars  from Belgium, China, Germany, the Netherlands, Sweden, Switzerland and the United States. Here is the programme:

Saturday, October 22, 2011

Morning

8:15–8:30   Registration

8:30–9:50   Opening Ceremony

Chair: Prof. Xinli Du, Vice Dean of Faculty of International Law, CUPL; Director of the Organizing Committee of the Workshop

Opening Remarks:

• Prof. Jin Huang, President of Chinese Society of Private International Law & President of CUPL
• Prof. Zhongyi Fei, Honorary Chairman of Chinese Society of Private International Law
• Prof. Andrea Bonomi, Vice Dean of Law Faculty of University of Lausanne

9:50-10:10   Taking Group Photo, Tea & Coffee

10:10-12:00   Unification of Private International Law and Chinese Private International Law

Chair: Prof. Xianglin Zhao, Ex Vice President of CUPL

10:10-10:30   Shengming Wang, Vice Direct of Legislative Committee of National People’s Congress of PRR: The Guiding Principle of the Enactment of the New Conflict of Laws Act of the PRC

10:30-10:50   Laura E. Little, Professor at Temple University’s Beasley School of Law: Internet Choice of Law Governance:  An Opportunity for Learning New Perspectives

10:50-11:10   Prof. Jin Huang, President of Chinese Society of Private International Law: The Present and Future of Chinese Legislation on Private International Law

11:00-11:30   Prof. Andrea Bonomi, Vice Dean of Law Faculty of University of Lausanne: Parallel Proceedings in International Litigation and Arbitration

11:30-11:50   Judge Guixiang Liu, Chief Judge of the Fourth Civil Court of the Supreme Court of PRC: Title to be confirmed

11:50-12:10   Prof. Mel Kenny at University of Leicester and Prof. James Devenney at Durham University, U.K.: The EU “Optional Instrument”: bypassing Private International Law

12:10-12:20   Discussion

12:20-14:00   Lunch Buffet at Siji (Four Seasons) Hall

Afternoon

14:00-16:00   New Development of Private International Law in the United States, Europe and Other Parts of the World

Chair: Zheng Tang, Professor at University of Aberdeen, U.K.

14:00-14:20   Prof. Mathijs Huibert ten Wolde, Professor at University of Groningen: Fundamental Questions Regarding Codification of Private International Law: Does Book 10 Civil Code on the Dutch Conflict of Laws Fit in a World Order

14:20-14:40   Juan Shen, Professor at Institute of law of Chinese Academy of Social Sciences: The Choice of Law in Succession? Scission System or Unitary System

14:40-15:00   Volker Behr, Professor at Law Faculty of University of Augsburg: Predictability and Flexibility in Choice of Law in Contracts and Torts – Chinese Conflicts Act, E.U. Regulations and U.S. Private International Law Evaluated

15:00-15:20   Zhengxin Huo, Associate Professor of CUPL: An Imperfect Improvement: The New Conflict of Laws Act Of The PRC

15:20-15:40   Comments

• Commentator 1: Prof. Yongping Xiao, Dean of Wuhan University School of Law
• Commentator 2: Prof. Qingsen Xu, Professor at Renmin University School of Law

15:40-16:00   Discussion

16:00-16:15   Tea & Coffee

16:15-18:00   New Development in Contract and Torts Choice-of-law Rules

Chair: Prof. Han Wang, Vice President of Northwest University of Politics and Law

16:15-16:35   Prof. Dr. Jan von Hein, Professor at Law Faculty of University of Trier: The European Private International Law on Investor Protection and its Impact on Relations with Third States

16:35-16:55   Prof. Michael Bogdan, Professor at Law Faculty of Lund University Sweden: Contracts and Torts in Cyberspace in View of the European Regulations Rome I and Rome II

16:55-17:15   Prof. Xianbo Li, Dean of Law Faculty of Hunan Normal University: Development of the Principle of Lex Loci delicti

17:15-17:35   Associate Prof. Keyu Wang, Associate Professor at China Central University of Finance and Economics

17:35-18:05   Comments

• Commentator 1: Prof. Renshan Liu, Dean of Law Faculty of Zhongnan University of Economics and Law
• Commentator 2: Ms Jane Willems, Arbitrator of the CIETAC

18:05-18:30   Discussion

18:30-20:00   Banquet

 

Sunday, October 23, 2011

Morning

8:30-10:20   Judicial Assistance in Civil and Commercial Area in a Globalized World

Chair: Knut B. Pissler, Professor at Max Planck Institute for Comparative and International Private Law

8:30-8:50   Kwang Hyun SUK, Professor at Seoul National University: Comparative Analysis of the Chinese Private International Law Act and the Taiwanese Private International Law Act: Korean Perspective.

8:50-9:10   Johan Erauw, Professor at University of Ghent: The Section On Goods And Property Rights In The Chinese Law On Private International Law of 28 October 2010 in Comparison With Other Codes

9:10-9:30   Xiangquan Qi, Professor at School of International Law of CUPL: The Latest Development of the Legislation regarding to the Application of Laws Concerning Foreign-related Marriage and Family Relations

9:30-9:50   Xiao Song, Associate Professor at Nanjing University School of Law: Party Autonomy and Conflicts Law in Property

9:50-10:10   Comments

• Commentator 1: Mo Zhang, Professor at Temple University
• Commentator 2: Chen Weizuo, Associate Professor at Tsing Hua University

10:00-10:20  Discussion

10:20-10:35  Tea & Coffee

10:35-12:00   Resolutions to International Civil and Commercial Disputes (Litigation, Arbitration, and Negotiation)

Chair: Prof. Zengyi Xuan, Dean of College of International Students of CUPL

10:35-10:55   Assistant Prof. Kun Fan, Assistant Prof. at Chinese University of Hong Kong, Senior Consultant of Arbitration Asia: Developments of the Enforcement of Foreign-related and Foreign Awards in China

10:55-11:15  Lianbin Song, Professor at Wuhan University School of Law: Development of China’s Arbitration after the Establishment of Arbitration Law of the People’s Republic of China 

11:15-11:30   Yongfu Chen, Beijing Arbitration Committee: Topic to be confirmed

11:30-11:45  Yun Zhao, Associate Professor at the Law Faculty of University of Hong Kong: Discussions on Mediation Legislation in Hong Kong–Reflections from Mainland’s People’s Mediation Law

11:45-12:05   Comments

• Commentator 1: Song Lu, Professor at China Foreign Affairs University
• Commentator 2: Hailing Shan, Professor at Shanghai University of Finance and Economics

12:05-12:30   Closing Ceremony & The Announcement of Beijing Declaration on Private International Law

Chair: Prof. Yongping Xiao, Dean of Wuhan University School of Law

The Announcement of Beijing Declaration on Private International Law

Closing Remarks:

• Prof. Jin Huang, President of Chinese Society of Private International Law
• Prof. Johan Erauw, Professor at University of Ghent
• Prof. Mathijs Huibert ten Wolde, Professor at University of Groningen

12:30-14:00   Lunch at Siji (Four Seasons) Hall 

 

More information (mostly in Chinese) is available on the conference website.

 

On October 18th, 2011, the Grand Chamber of the European Court of Justice held in Realchemie Nederland BV v Bayer CropScience AG (Case C 406/09) that the Brussels I Regulation applies to fines ordered to ensure compliance with jugdments given in civil and commercial matters.

Facts

In 2005, German firm Bayer initiated proceedings in Germany against Dutch firm Realchemie for alleged patent infringement. On December 19, 2005, a German Court issued an interim order prohibiting Realchemie from importing into, possessing or marketing certain pesticides in Germany. The Order was issued on pain of a fine. The Court also ordered the Dutch defendant to provide details of its commercial transactions involving the pesticides and to transfer its stock into the custody of the courts

In 2006, the German Court found that Realchemie had not complied with  the order. On August 17, 2006, it thus ordered Realchemie to pay a fine of Euro 20,000 (Ordnungsgeld) pursuant to Article 890 of the German Code of civil procedure (ZPO), to be paid to the Court. In October 2006, the Court also ordered a periodic payment of Euro 15,000 (Zwangsgeld) pursuant to Article 888 of the German Code of civil procedure to encourage it to provide details of the commercial transactions concerning the pesticides in question. Each time, the Court ordered the Dutch defendant to pay the costs of the proceedings.

In 2007, Bayer sought to enforce the orders in the Netherlands.

Judgment

The Brussels I Regulation only applies to Civil and Commercial Matters. The obvious question was whether a fine ordered to ensure compliance of judgments falls within that category and can thus be enforced under the Regulation.

The Court reiterated that such issues of characterization were to be addressed by looking at the subject matter of the legal relationship between the parties rather than the nature of the particular remedy. It thus held:

41 In the present case, even if, according to Paragraph 890 of the ZPO, the fine at issue in the main proceedings is punitive and the reasoning in the order imposing it explicitly mentions the penal nature of that fine, the fact remains that, in those proceedings, there is a dispute between two private persons, the object of which is the authorisation of enforcement in the Netherlands of six orders from the Landgericht Düsseldorf, by which the latter, hearing an application lodged by Bayer and based on an allegation of patent infringement, prohibited Realchimie from importing into, possessing and marketing certain pesticides in Germany. The action brought is intended to protect private rights and does not involve the exercise of public powers by one of the parties to the dispute. In other words, the legal relationship between Bayer and Realchimie must be classified as ‘a private law relationship’ and is therefore covered by the concept of ‘civil and commercial matters’ within the meaning of Regulation No 44/2001.

The fact that the fine was to be paid to the German state was not regarded as decisive:

42 It is true, as is apparent from the order for reference, that the fine imposed on Realchimie pursuant to Paragraph 890 of the ZPO, by order of the Landgericht Düsseldorf must be paid, when it is enforced, not to a private party but to the German State, that the fine is not recovered by the private party or on its behalf but automatically, and that the actual recovery is made by the German judicial authorities. Those specific aspects of the German enforcement procedure cannot however be regarded as decisive as regards the nature of the right to enforcement. The nature of that right depends on the nature of the subjective right, pursuant to the infringement of which enforcement was ordered, that is, in the present case, Bayer’s right to exclusively exploit the invention protected by its patent which is clearly covered by civil and commercial matters within the meaning of Article 1 of Regulation No 44/2001.

The Court therefore concluded:

1. The concept of ‘civil and commercial matters’ in Article 1 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 must be interpreted as meaning that that regulation applies to the recognition and enforcement of a decision of a court or tribunal that contains an order to pay a fine in order to ensure compliance with a judgment given in a civil and commercial matter.

The Court was also asked to characterize the costs of the proceedings to determine whether they were governed by Article 14 of the Directive on the enforcement of IP rights, which provides that they should be borne by the unsuccessful party. It held:

2. The costs relating to an exequatur procedure brought in a Member State, in the course of which the recognition and enforcement is sought of a judgment given in another Member State in proceedings seeking to enforce an intellectual property right, fall within Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

Many thanks to Maja Brkan for the tip-off.

Today, the United States Supreme Court granted certiorari in the case of Kiobel v. Royal Dutch Petroleum to consider the following questions:  (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide or may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.  In addition to Kiobel, the Court also granted cert. in Mahamad v. Rajoub to consider whether whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.

In Kiobel, 12 Nigerian nationals claimed human rights violations by oil companies, alleging that the oil companies enlisted the Nigerian government to use its armed forces to suppress resistance to oil exploration in the Niger Delta.  In Mohamad, the family of a U.S. citizen claimed torture by officers of the Palestianian Authority and the Palestine Liberation Organization.  The cases present the question whether the ATS and the TVPA apply to entities other than natural persons–corporiations in Kiobel and other organizations in Mohamad.

What makes the Kiobel grant interesting, besides it being only the second time the US Supreme Court will hear an ATS case, is that the Court granted the case without soliciting the views of the United States.  Given that cases raised under the ATS implicate in many cases foreign policy concerns of the Executive Branch, the considered views of the Executive would have advanced the Court’s consideration of the case, even at the cert. stage.  Whether the Solicitor General will file a brief amius curiae and request oral argument time will tell one a great deal about how the Obama Administration responds to the tensions created in ATS cases–at best, the ATS seeks to support human rights throughout the world and, at worst, imposes United States legal views on acts or omissions occurring within the sovereign territory of another country.

For international law scholars, the current Supreme Court term just became a great deal more interesting!