On January 19th, 2012, the Second Circuit has denied Chevron’s motion to reconsider its previous decision to vacate the anti-enforcement injunction of Judge Kaplan.
The short order is available here (but without reasons). See also this short post over at Letters Blogatory.
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The International Journal of Procedural Law was launched a year ago. It is a multiligual peer-reviewed journal, which
(…) provides an international research platform for scholars and practitioners in the field of procedural law, especially in civil matters.
In addition to articles in five different languages examining current developments in judicial and alternative dispute resolution, the IJPL also publishes articles devoted to the theoretical foundations of procedural law. Contributions address legal issues from domestic, transnational or international perspectives, including comparative law and conflicts of law aspects. Consequently, the IJPL is not only of interest for scholars but also for practitioners in charge of cross-border cases.
The IJPL is published twice a year. Each issue consists of five parts: Studies, Practice, Debate, Legislation and Information (book reviews, interviews, conference summaries). Articles must be written in English, French, German, Italian or Spanish and will be published in the language in which they have been submitted. Preliminary abstracts in the other languages of the IJPL inform the reader about the central points of each article. The IJPL is the journal of the International Association of Procedural Law.
The second issue of the Journal focuses on issues of private international law. It includes the following articles or essays:
STUDIES
Cross-border enforcement in the EU: Mutual Trust versus Fair Trial? Towards Principles of European Civil Procedure(XANDRA KRAMER)
L’incidence de la distinction per officium / per partes sur la circulation internationale des décisions provisoires (MARIE NIOCHE)
This book on state insolvency and sovereign debts (Insolvabilité des Etats et dettes souveraines) is the collection of the proceedings of a conference held in Paris in November 2010. It was edited by professor Mathias Audit (Université Paris Ouest La Défense). The table of contents is available here.
La dette souveraine constitue l’un des enjeux économiques, politiques et juridiques majeurs de l’époque. Pour assurer leur fonctionnement ou financer leur croissance, la plupart des États du monde ont en effet massivement eu recours à l’emprunt, à telle enseigne qu’ils font aujourd’hui l’objet d’un endettement souvent très important. Le phénomène n’est d’ailleurs pas du tout propre aux économies les moins avancées ; il affecte également les États parmi les plus développés de la planète.
Mais qu’ils soient réputés riches ou pauvres, le service par ces États de leur dette souveraine représente une charge considérable pour leurs finances publiques. Plus encore, il expose certains d’entre eux à des cessations de paiement, c’est-à-dire à des situations d’insolvabilité.
Sous un angle à la fois juridique et économique, l’ouvrage vise à présenter chacun des aspects les plus saillants de l’endettement étatique. Dans une logique plus prospective, il cherche également à identifier les solutions qui pourraient lui être apportées.
Contributors include Mathias Audit, Jérôme Sgard, Michael Waibel, Jérôme Da Ros, Patrick Wautelet, Norbert Gaillard, Alain Bernard, Mathias Forteau, Francesco Martucci, and Horatia Muir Watt.
Most contributions are in French, but the paper of Patrick Wautelet on Vulture funds, creditors and sovereign debtors: how to find a balance? is written in English.
More details can be found here.
The Private International Law Interest Group of the American Society of International Law has launched its third annual prize competition.
Competitors may be citizens of any nation but must be 35 years old or younger on December 31, 2011. They need not be members of the American Society of International Law.
This year, the prize will consist of a $500 stipend to participate in the inaugural Interest Group conference on “What is Private International Law” to be held on October 5-6, 2012. Essays should address the subject matter as articulated in the call for papers for the conference, which can be found here.
The prize will be awarded by the Private International Law Interest Group based upon the recommendation of a Prize Committee. Decisions of the Prize Committee on the winning essay and on any conditions relating to this prize are final.
Submissions to the Prize Committee must be received no later than 5:00 pm ET, May 15, 2012. Entries must be written in English and should not exceed 10,000 words.
Entries must be submitted by email in Word or pdf format. They should contain two different documents: a) the essay itself, without any identifying information other than the title and b) a second document containing the title of the entry and the author’s name, affiliation, and contact details.
Submissions and any queries should be addressed by email to Private International Law Interest Group Co-Chairs Rahim Moloo (rahim.moloo@nyu.edu) and Ralf Michaels (michaels@law.duke.edu).
All submissions will be acknowledged by e-mail.
Our Courts and the World: Transnational Litigation and Civil Procedure
On Friday, February 3, 2012, Southwestern Law School in Los Angeles, California and the Southwestern Journal of International Law is hosting a symposium titled Our Courts and the World: Transnational Litigation and Civil Procedure. The symposium is co-sponsored by the American Society of International Law, the Junior International Law Scholars Association (JILSA), the Los Angeles County Bar Association – International Law Section, and the State Bar of California – International Law Section.
This one-day symposium will bring together leading scholars from Canada and the United States to discuss the procedural issues that arise in transnational civil litigation cases. It will also assess how receptive courts are to transnational litigation and explore issues related to transnational class actions. The proceedings and papers from this symposium will be published in the Southwestern Journal of International Law.
Panelists include (in alphabetical order):
Moderators include:
Symposium Co-Chairs:
The latest issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ)” has just been released. It contains – among others – articles on the recent Chinese and Japanese Codifications on Private International Law. The table of contents reads as follows:
Articles:
Knut Benjamin Pissler, The New Private International Law of the People’s Republic of China: Cross the River by Feeling the Stones, pp. 1-46
Abstract:
On October 28, 2010, the “Law of the Application of Law for Foreign-related Civil Relations” was promulgated in the People’s Republic of China. The law aims to consolidate the Chinese conflict of laws regime and signals a new step towards a comprehensive codification of civil law in China. Drafting of the law started in the early 1990s and produced an academic model law in the year 2000. The Chinese legislator was reviewing a first draft in 2002. However, due to other priorities, it has only been since the beginning of 2010 that conflict of laws has been at the top of the legislative agenda. It comes, therefore, with little surprise that the law has some deficiencies and has been welcomed with mixed feelings by Chinese academics, who had only limited influence in the last stage of the drafting process.
The promulgated law emphasizes party autonomy and the closest connection as general principles. The law furthermore replaces nationality with habitual residence as the principal connecting factor for personal matters in Chinese private international law. However, some lacunas remain and new questions arise from the law. The legislative gaps concern the form of legal acts, the maintenance duties after divorce as well as the assignment and transfer of rights and duties in general. New questions arise from the provisions in the law establishing alternative connecting factors. In some cases the law requires application of the law which favours a particular party (in parent-child relationships, maintenance and guardianship). Chinese courts will therefore be confronted with the demanding task of comparing the legal regimes of different states in this respect. In other cases the law does not stipulate how to choose between the alternative connecting factors and it remains to be seen on which principles courts will render their decisions. Regarding the free choice of law with regard to rights in movable property provided by the law, it is additionally questionable how the rights of third parties are protected where they are not aware of such a choice of law. The decision of the legislator to exclude renvoi will force Chinese courts to apply foreign law even if the foreign private international law refers back to Chinese law.
Some of the particular provisions in the law are also a source for further problems: This concerns the application of the lex fori in divorce cases, the conflict of laws rule on trusts and arbitration clauses as well as on agency. Another point of uncertainty stems from older provisions of private international law that can still be found in several laws such as the Maritime Commercial Law, the Civil Aviation Law or the Contract Law. Those norms are still in force formally, but their relation to the new law is not sufficiently clarified. This uncertainty is particularly pronounced given that the relation of the new law to several provisions in the General Principles of Civil Law and the Inheritance Law is expressly regulated whereas the others are not even mentioned. Relating to international contract law and tort law, the Supreme People’s Court had issued some judicial interpretations in the past to solve certain questions, but it also remains uncertain whether these interpretations still apply after the enactment of the new law. It is expected that the Supreme People’s Court will issue a further judicial interpretation on private international law in the near future to help Chinese courts applying the new law.
Qisheng He, The EU Conflict of Laws Communitarization and the Modernization of Chinese Private International Law, pp. 47-85
Abstract:
Since 2007 the EU has adopted the Rome I, Rome II and Rome III Council Regulations codifying and unifying the respective conflict of laws rules in contract, tort and divorce and legal separation. The EU conflict of laws communitarization has attained great achievements. In 2010, China also adopted a self-contained statute – the Law of the People’s Republic of China on the Application of Law to Civil Relationships Involving Foreign Interests – which marks a significant step forward in the codification of Chinese private international law (PIL). However, the sources of Chinese PIL are still scattered and diverse because the PIL rules in existing commercial statutes have not been incorporated into this separate PIL statute. In contrast with the EU PIL, there are three issues on which China should devote special attention in further developing its PIL: Firstly, because of a mixed mode of legislation and the scattered sources of Chinese PIL, maintaining harmony between the new statute and the other sources still remains an important task. It remains very important for China to enact PIL provisions in future commercial law legislation. Secondly, the draft of the new statute includes no documents or materials which suggest that the Chinese legislative authority appreciated the tension and need for equilibrium between certainty and flexibility. Thus, the new statute manifests some problems in this regard. Lastly, current Chinese PIL is mainly focused on jurisdiction-selection rules, meaning that the formulation of reasonable content-preference rules is still an important task necessary for the modernization of Chinese PIL.
Yoshiaki Sakurada & Eva Schwittek, The Reform of Japanese Private International Law, pp. 86-130
Abstract:
Japan has reformed its Act on the Application of Laws. On 1 January 2007, the Hô no tekiyô ni kansuru tsûsoku-hô came into effect, a revised and renamed version of the Hôrei that dates from 1898. This article traces the legislative process and analyses the changes in the law, referring to the way they have been implemented in the court rulings rendered so far.
In sessions dating from May 2003 to July 2005, the Subcommittee for the Modernisation of the Act on the Application of Laws (part of the Legislative Commission of the Ministry of Justice) worked out fundamental innovations that were approved by the Legislative Commission of the Ministry of Justice on 6 September 2005. Based on this report, the Ministry of Justice, in cooperation with the Legislative Department of the Cabinet, drafted a bill that passed the Upper House on 19 April 2006 and the House of Representatives on 15 June 2006.
The reform is comprehensive. The only parts of the law that were exempt from amendment were international family and inheritance law, those already having been reformed in 1989. The present renewal focuses on the provisions concerning international contract law (Arts. 7-12) and the international law of torts (Arts. 17-22). Both sets of rules were further differentiated in their basic principles and complemented by special rules.
As for international contract law, the basic connecting factor is still the parties’ choice of law (Art. 7). A fundamental change in determining the law applicable to contracts was implemented by introducing a new subsidiary objective connecting factor in Art. 8. It provides that in the absence of a choice of law by the parties, the law of the place with which the contract was most closely connected should apply, and it specifies criteria for determining the closest connection. The newly created rules on consumer and labour contracts in Arts. 11 and 12 contain major innovations aiming at the protection of the weaker party. However, they impose upon the weaker party the burden of stipulating the effect of the protective provision in question, an aspect which was much criticised as it limits such protective effects.
The lex loci delicti, as the basic connecting factor for the law of torts, formerly stipulated in Art. 11(1) Hôrei, is maintained in Art. 17. Multilocal torts are governed by the law of the place where the results of the infringing act are produced (Art. 17 sentence 1). However, if it was not foreseeable under normal circumstances that the results would be produced at that place, the law of the place where the infringing act occurred shall apply (Art. 17 sentence 2). Special rules on product liability and on infringements of personality rights were added to the law in Arts. 18 and 19. The lex loci delicti as connecting factor can be deviated from in cases where a manifestly more closely connected place exists (Art. 20) or where the governing law is changed by the parties (Art. 21). The principle of double actionability, stating that Japanese law should be applied cumulatively to the applicable law regarding the grounds of and the compensation for damages incurred by a tort, was upheld in Art. 22 against severe criticism.
Apart from the points of critique addressed above, the new law provides for a differentiated set of rules that keep pace with the latest international developments.
Anne Röthel, Family and Property in English Law: Developments and Explanations, pp. 131-160(30)
Abstract:
In continental jurisdictions, there is still a strong link between family and property. Intestate succession, imperative inheritance rights as well as the concepts of matrimonial property regimes and in some aspects also tax law are designed to attribute property rights along personal relationships. The position of English law is often described as a contrasting concept, especially due to the deeply rooted reservations against fixed shares. However, continental lawyers often may be surprised with the actual outcome, especially in divorce cases. The article therefore explores the present state of English law concerning family and property. Is there a convergence in concepts as well? Is English law nowadays more favourable towards general normative models for the attribution of property within family relationships? Or is the 2010 decision of Radmacher v. Granatino another turning-point? The author argues that the inner explanation of these – at first glance – diverging steps lies in the recognition of equality in horizontal relationships. The outcome of cases like White v. White or Stack v. Dowden is only partly the effect of a generally altered view on family and property in English Law. Nonetheless, they reflect a different understanding of how and how much the state should regulate the family. Although all European legislations experience broadly similar demographic trends and social challenges, there remain decisive differences in legal concepts. The distance between English Law and the continent may be somewhat reduced – but it is far from disappearing.
Material:
Volksrepublik China: Erlass des Präsidenten der Volksrepublik China Nr. 36: Gesetz der Volksrepublik China zur Anwendung des Rechts auf zivilrechtliche Beziehungen mit Aussenberührung vom 28. 10. 2010, pp. 161-169 (Peoples Republic of China: Order of the President of the People’s Republic of China No. 36: The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China, 28/10/2010)
Japan: Gesetz Nr. 78 über die allgemeinen Regeln über die Anwendung von Gesetzen (Rechtsanwendungsgesetz) vom 21. 6. 2006, pp. 170-184 (Japan: Act No. 78 of 2006 about General Rules for Application of Laws, 21/06/2006)
PRIME Finance, an international tribunal specialising in resolving financial disputes has launched its services today in the Hague.
The services that it offers are arbitration and mediation, so it is, in effect, an arbitration institution rather than the “latest of six international courts in the Netherlands“. The dispute resolution experts of Prime Finance are indeed specialists of international arbitration rather than international criminal law scholars, and the good air of the Hague seems unlikely to change the legal nature of this newcomer.
The press has reported that it is to be financed by the Dutch government and the city of the Hague for its first two years. The Netherlands has certainly a lot to gain if it can effectively compete with London and New York City as an international center for the resolution of financial disputes. For that purpose, one suspects that the founders of the institution have put more effort into attracting Lord Collins of Mapesbury and the Honourable Charles N. Brower than Luis Moreno-Ocampo.
Well, let’s the competition begin, then.
F.X Licari is maître de conférences at the University of Metz; B.W. Janke works as associate in Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans.
A new article on punitive damages and the Fountaine Pajot ruling (see related entries following this) has just been published on SRRN, entitled “Enforcing Punitive Damages Awards in France after Fountaine Pajot”; it will also be included in the American Journal of Comparative Law in summer. Here is the abstract:
In a landmark ruling, the Cour de cassation held that ‘an award of punitive damages is not, per se, contrary to public policy,’ but that ‘it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor’s breach of his contractual obligation.’ Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court’s reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court’s modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.
Click here to access the whole text.
María López de Tejada holds a PhD in law from the University of Paris II with a thesis on the abolition of the exequatur procedure. She has recently published an article on the topic in the Spanish journal La Ley (Diario La Ley, Nº 7766, Sección Tribuna, 30 Dic. 2011). Here is a summary of the contents.
The execution of foreign judgments has traditionally been subject to an enforcement procedure in the European judicial area. However, the Community lawgiver wants to get rid of that process so that any judicial decision could deploy its effects and be enforced throughout the community, without prior declaration of enforceability or control in the executing Member State. Several regulations of limited material scope have already achieved that objective, but the idea is to go further and abolish the exequatur procedure for all civil and commercial matters. Such an objective looks like praiseworthy at first sight, because it tends to break with a traditional legal lack of openness and to restore the continuity of the right to enforcement of anyone who has obtained a favorable judgment. But a deeper analysis of the issue shows that right now, the abolition of exequatur would be a hasty, even dangerous step for both the citizens and the harmony of the juridical systems of the Member States. The suppression of the exequatur procedure is based on the assumption that foreign court rulings, delivered under common jurisdictional criteria, provide similar guarantees and should be regarded as national decision. The truth is that until a higher level of integration has been reached such presumption, which implies the perfect equivalence of all national decisions, is simply excessive and unrealistic. On the one hand, the European system of jurisdiction set in regulations is still far from perfect; and the practical application of the rules leads too often to unpredictable consequences. On the other hand, the judicial area is characterized by a profound heterogeneity in as far as procedural law is concerned; and unfortunately both the ECHR and the ECJ case law still show scenarios of violations of fundamental rights by the States -in particular of Article 6 of the ECHR.
The suppression of all kind of control (meaning, public order clause included) of foreign rulings opens the door to the community space of judgments contrary to the fundamental rights enshrined in the ECHR and in the European Charter of Fundamental Rights, notwithstanding the Member States commitment to abide by both them.
During its meeting of December 13-14, 2011, the Council of Ministers of the European Union has made decisions regarding some forthcoming private international law legislation. The Press Release states:
Main Results:
Ministers also reached agreement on the text of a regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession. On the recast of a regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the so-called “Brussels I” regulation), the Council approved political guidelines for further work.
More specifically, the Council agreed: