On Friday, 15 June 2012, the Maastricht European Private Law Institute (M-EPLI) will host a one-day roundtable conference at the Feestzaal of Maastricht Law Faculty.

From the official announcement:

This roundtable is divided into three panels, distinguished on the basis of perspective. Contributions in the first panel offer an institutional perspective on the choices available. A second panel focuses on competition between the instruments and how parties may be expected to choose. The third sheds some light on the similarities and differences between the instruments, suggesting criteria to evaluate these instruments, as well as views on what the best instrument is. Speakers are drawn from academia, legal practice, as well as commercial interests.

Attendance is free, but access is limited. Admissions can be submitted until 8 June 2012 by email to mepli@maastrichtuniversity.nl.

Further information can be found here. The programm reads as follows:

10.00-10.25 Registration and coffee

10.25-10.30 Welcome address, Professor Jan Smits  (Maastricht)

Panel 1 – A view from the institutions

10.30-11.00  An arbitrator’s perspective, Professor Christina Ramberg (Stockholm)

11.00-11.30 t.b.a., Professor Jan Smits (Maastricht)

11.30-12.00  Discussion

12.00-13.30  Lunch

Panel 2 – How parties (ought to) choose

13.30-13.50  A psychology of choice of laws, Dr Gary Low (Maastricht)

13.50-14.10  Choice of jurisdiction, Prof Jan Dalhuisen (King’s College London)

14.10-14.30  A commercial perspective, Mr Eric Poelman (Philips CE)

14.30-15.00  Discussion

15.00-15.20  Coffee break

Panel 3 – Comparing choices

15.20-15.40  Formation/Incorporation, Dr Sonja Kruisinga (Utrecht)

15.40-16.00  Interpretation of Contracts, Dr Nicole Kornet (Maastricht)

16.00-16.20  Remedies for Breach, Dr Olaf Meyer (Bremen)

16.20 – 16.50  Discussion

16.50-17.00  Closing remarks

17.00  Reception

The last issue of the Journal of Private International Law was just released. It includes the following articles:

Review of the Brussels I Regulation: A Comment from the Perspectives of Non-Member States (Third States), by Koji Takahashi

The review of the Brussels I Regulation is in progress. Quite naturally, the discussions have been centred on the viewpoints of the Member States. Yet, both the current Regulation and the Commission’s proposal have significant implications for non-Member States. In fact, stakes for non-Member States are higher in Brussels I than in Rome I or II. This analysis evaluates the current regime and the proposed reform from an angle of non-Member States, focusing on three issues of particular relevance to the interests or positions of such States. They are (1) recognition and enforcement of judgments founded on exorbitant bases of jurisdiction (2) denial of “effet réflexe“ and (3) lis pendens between the courts of a Member State and a non-Member State. The analysis reveals that views from inside and outside the Union do not necessarily diverge on the desirable contents of reform but may differ on the priorities of reform. While the EU is entitled to construct its internal legal regime in whatever manner it sees fit, to the extent there are implications for the outside world, it is hoped that due consideration will be given to views from outside.

Recognition and Enforcement of Judgments in Carriage of Goods by Road Matters in the European Union, by Paolo Mariani

This article discusses the relationship between Brussels I Regulation and The Convention on the Contract for the International Carriage of goods by road (CMR). The Court of Justice in TNT Express Nederland decision (case C-533/08) confirms the international specialised conventions’ primacy on the Regulation, provided the respect of the principles underlying judicial cooperation in civil and commercial matters in the European Union. The Court also acknowledges its lack of jurisdiction to interpret the CMR.

TNT Express Nederland contributes in the elaboration of the EU principles underlying judicial cooperation. Unfortunately, this contribution risks being useless for national courts since the decision fails to answer the question as to how CMR provisions should be applied lacking the compliance with the European standard.

The article concludes by supporting the Court of Justice power to provide the interpretation of the Brussels I Regulation in the context of the application of Article 31 CMR in order to enable the national court to assess whether the CMR can be applied in the European Union.

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The first issue of the Belgian bilingual (French/Dutch) e-journal on private international law Tijdschrift@ipr.be / Revue@dipr.be for 2012 was just released.

The journal essentially reports on European and Belgian cases addressing issues of private international law. It includes an article by Patrick Wautelet (Liège University) presenting three recent developments in choice of law in matrimonial property matters (Les règimes matrimoniaux en droit international privé – Autour de trois questions d’actualité).

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

• Burkhard Hess: “Staatenimmunität und ius cogens im geltenden Völkerrecht: Der Internationale Gerichtshof zeigt die Grenzen auf” – the English abstract reads as follows:

This article deals with the decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), critically analysing the question of juridictional immunities of the the state in current public international law.

•  Björn Laukemann: “Der ordre public im europäischen Insolvenzverfahren” – the English abstract reads as follows:

 The advancing integration of European civil procedure means that the criteria under which European insolvency judgments can be refused recognition on grounds of public policy are constantly modified. The European Insolvency Regulation is not excluded from such a development. Public policy is not something which is solely derived from national law. More and more, a European concept of public policy is becoming the benchmark for interpreting Art. 26. This article will focus on the analysis of the public policy clause in the light of international insolvency law principles – mainly the universal and immediate recognition of insolvency proceedings. Against this background, it will show why and to what extent the interpretation of Art. 26 of the Insolvency Regulation differs from that of Art. 34 n° 1 of the Brussels I Regulation, which is applied in the context of civil procedure. Due to the increasing harmonisation within the EU, the article will also shed light on the relation between the public policy exception and the need for a prior legal defence in the State in which the insolvency proceedings were opened.

•  David-Christoph Bittmann: “Der Begriff der „Zivil- und Handelssache“ im internationalen Rechtshilfeverkehr” – the English abstract reads as follows:

 The OLG Frankfurt/Main had to decide on a case concerning the qualification of the term of “civil and commercial matters” in the German-British Convention on the conduct of legal proceedings of 20 March 1928. On the basis of this convention the High Court Auckland (New Zealand) requested the service of a petition by way of legal aid from the Amtsgericht Frankfurt/Main. Subject of this petition was a penalty, requested from the New Zealand Commerce Commission against the applicant. The Commission accused the applicant of having infringed the Commerce Act of 1986. The applicant opposed against the service of the petition that the Convention from 1928 is not applicable on the requested penalty. The OLG Frankfurt/Main followed this argumentation and denied a civil and commercial matter. The following article analyses the problem of the qualification of “civil and commercial matters” in international civil procedure law at the example of the penalties requested by the New Zealand Commerce Commission.

•   Oliver L. Knöfel: “Ordnungsgeld wegen Ausbleibens im Ausland? – Aktuelle Probleme des deutsch-israelischen Rechtshilfeverkehrs” – the English abstract reads as follows:

 The article reviews a decision of the Higher Social Court of North Rhine-Westphalia (3.12.2008 – L 8 R 239/07), dealing with the question whether a contempt fine (Ordnungsgeld) can be imposed on a party to a lawsuit who has been summoned to appear before a German consul posted abroad or before a German judge acting on foreign soil, but who has failed to comply with the summons. The author analyses the relevant mechanisms of the Hague Evidence Convention of 1970 as well as German procedural law.

•  Dirk Otto: “Präklusion und Verwirkung von Vollstreckungsversagungsgründen bei der Vollstreckung ausländischer Schiedsgerichtsentscheidungen” – the English abstract reads as follows:

 The German Federal Supreme Court refused to enforce a foreign arbitration award for lack of a valid arbitration agreement and held that a defendant, who objected against the arbitration throughout the proceedings is not estopped from invoking Art. V (1) (a) of the New York Convention (NYC) for having failed to initiate set-aside proceedings under the lex arbitri. The Supreme Court stressed that a defendant may opt not to commence court proceedings at the place where the award was rendered but may choose to resist enforcement under Article V NYC. This interpretation is in line with case law in other Convention countries. However, a defendant may be estopped from invoking grounds for non-enforcement if he participates in arbitration proceedings but fails to protest against any deficiencies. Furthermore, if a defendant does opt to seek annulment of an award at the place of origin, he has to put forward all reasons for setting aside, otherwise he may be precluded from raising them before the enforcing court.

•  Frauke Wedemann: “Die Regelungen des deutschen Eigenkapitalersatzrechts: Insolvenz- oder Gesellschaftsrecht?” – the English abstract reads as follows:

 Under German law, shareholder loans are subordinate to the claims of all other creditors in the case of the insolvency of a company whose members are not personally liable. In its “PIN Group” decision, the German Federal Supreme Court (BGH) held that this rule also applies to companies founded in another EU Member State for which insolvency proceedings have been opened in Germany. The Court stated that the rule is to be characterised as a matter of insolvency law – not company law – and based this ruling on Art. 4(2)(g) and (i) of the European Regulation on Insolvency Proceedings. The author agrees with the decision, but critically examines and refines its reasoning. She analyses in detail whether the application of the German rule to a foreign company is compatible with the freedom of establishment (Art. 49, 54 TFEU). Furthermore she discusses the characterisation of other German rules concerning (1) the rescission of repayments of shareholder loans after the opening of insolvency proceedings or after the refusal to open such proceedings for lack of funds, (2) loans for which a shareholder has provided a security, and (3) the relinquishment of items or rights for use or exercise by a shareholder to the company. She argues that all these rules are to be characterised as matters of insolvency law.

•  Heinrich Dörner: “Der Zugriff des Staates auf erbenlose Nachlässe – Fiskuserbrecht oder hoheitliche Aneignung?” – the English abstract reads as follows:

 The state’s right to succeed to heirless estates may be construed either as a succession under private law or as an act of occupation under public law. In the present judgement the “Kammergericht” deals with the legal nature of the state’s right of succession under the Civil Code of the former Russian Soviet Federative Socialist Republic and correctly characterises it as private intestate succession. According to the former Russian law of succession a cousin of the decedent was not entitled to a statutory portion. This regulation does not constitute an infringement of the German public order.

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Patrick R. Wautelet, University of Liege, has posted “Cross-Border Same Sex Relationships – Private International Law Aspects” on SSRN. The paper can be downloaded here. The abstract reads as follows:

In this paper I attempt to give an overview of the private international law rules pertaining to same sex relationships (marriages and partnerships) in Europe, in order to examine whether there exists a consensus among the countries concerned, what are the difficulties arising out of the lack of consensus and how these difficulties can best be tackled. This paper has been presented at a conference (ERA-Trier) in 2011. It has been published in a book together with the other reports to the conference (Boele Woelki/Fuchs, Legal Recognition of Same-Sex Relationships in Europe – national, cross-border and European perspectives, Intersentia, 2012).