June 2012 – Page 3 – Conflict of Laws

Basedow on the Optional Instrument of European Contract Law

June 10, 2012/in /by Giesela Ruehl

Jürgen Basedow, Director of the Max-Planck-Institute for Comparative and International Private Law Hamburg, has posted “The Optional Instrument of European Contract Law: Opting-in through Standard Terms – A reply to Simon Whittaker” on SSRN. The paper can be downloaded here. The abstract reads as follows:

In a paper recently published (The Optional Instrument of European Contract Law and Freedom of Contract, ERCL 7 (2011) 371 – 388 at p. 388), Simon Whittaker has criticized the “reduction of an individual consumer’s protection” resulting from the adoption of an optional instrument on European contract law such as the one now contemplated by the European Commission (the “Optional Instrument”). The article contains a number of propositions which will not be tackled here. This comment is confined to consumer contracts and to a pertinent key assumption of Whittaker: that a standard term exercising the option in favour of the Optional Instrument would be subject to judicial review under Directive 93/13 on unfair contract terms in consumer contracts.

German Federal Labour Court Rules on Jurisdiction in Posted Workers Case

June 8, 2012/1 Comment/in /by Giesela Ruehl

In a judgement of 15 February 2012, the German Federal Labour Court (Bundesarbeitsgericht) had to deal with the question of whether German courts have jurisdiction concerning contribution claims of a specialised social security fund against a company domiciled abroad. Referring to Articles 1 (1) Sentence 1, 76, 67 of the Brussels I-Regulation as well as Section 8 Sentence 2 of the Posted Workers Act (now: Section 15 of the Revised Posted Workers Act) the court answered the question in the affirmative.

The facts of the case were as follows: The defendant, a Lithuanian company had been responsible for the building of the Lithuanian pavilion at the EXPO 2000 in Hannover. To build the pavilion it had sent at least 42 Lithuanian workers to Germany in January and February 2000. Therefore, the German Holiday and Wage Adjustment Fund for the Building and Construction Industry (Urlaubs- und Lohnausgleichskasse für die Bauwirtschaft), a specialised social security fund responsible, among others, for securing workers’ holiday benefits including workers’ minimum holiday compensation, required the company to pay contributions. The Lithuanian company, however, refused. It argued that it had fulfilled all its obligations under Lithuanian law. The Holiday and Wage Adjustment Fund, therefore, filed a lawsuit for the outstanding contributions that eventually ended up in the German Federal Labour Court

In answering the question whether German courts had jurisdiction the German Federal Labour Court first discussed whether the suit was within the scope of the Brussels I-Regulation. It held that the claim did not fall within the social security exception of Article 1 (2) lit. c) of the Brussels I-Regulation. The notion of social security had to be interpreted in accordance with Council Regulation(EC) No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (now: Article 3 (1) of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security system). Article (4) (1) of this Regulation defined social security matters as matters relating to sickness and maternity benefits, invalidity benefits, old-age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits and family benefits. The notion of social security, therefore, did not cover holiday benefits as the ones in dispute in the case at hand.

The court then went on to discuss whether it had jurisdiction under the Brussels I-Regulation. It found that Article 2 (1) of the Brussels I-Regulation, requiring claimants to bring a lawsuit in the courts of the Member States of the defendant’s domicile, did not apply because the defendant was not domiciled in Germany. It was not even domiciled in a Member State at the time because Lithuania joined the European Union as late as 2004. However, since Article 2 (1) was subject to the remaining provisions of the Brussels I-Regulation, including Article 67, which provides that the Brussels I-Regulation does not prejudice the application of provisions governing jurisdiction in specific matters, which are to be found in Community instruments or in national legislation implementing such instruments the court relied on Section 8 of the Posted Workers Act (now: Section 15 of the Revised Posted Workers Act) to find that German courts had jurisdiction: implementing Article 6 of the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, Section 8 of the Posted Workers Act allowed judicial proceedings to be brought in the Member State in whose territory the worker is or was posted in order to enforce the right to the terms and conditions of employment guaranteed in Article 3 of the Directive. An employee who is or was posted in Germany could, therefore, file a suit in Germany to enforce the minimum conditions of employment outlined in Article 3 of the Directive including holiday benefits. The court found that the same held true for a specialised social security fund such as the Holiday and Wage Adjustment Fund regarding claims against posting companies for outstanding contributions relating to holiday benefits. Furthermore, the court held that interpretation of Section 8 of the Posted Workers Act made clear that it did not matter whether the posting company was domiciled in a EU member state.

The full decision can be downloaded here (in German).

Many thanks to Thomas Pfeiffer for the tip-off.

JHA Council (7-8 June 2012): EU Regulation on Successions and Wills Adopted – General Approach on Brussels I Recast – CESL

June 7, 2012/in /by Giorgio Buono

The Justice and Home Affairs (JHA) Council of the EU, currently holding its meeting in Luxembourg (7-8 June), adopted today the successions regulation (Regulation on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European certificate of succession): see the Council’s note and RAPID press release. The final text can be found in doc. no. PE-CONS 14/12.

Denmark, Ireland and the United Kingdom do not participate in the regulation, pursuant to the special position they hold in respect of the Area of Freedom, Security and Justice, while Malta voted against the adoption, expressing concerns on the uncertainty that the new rules will create in the legal regime of international successions, vis-à-vis current Maltese law (see the Maltese statement in the Addendum to Council’s doc. no. 10569/1/12).

As pointed out in a previous post, an agreement had been reached by the Council and the Parliament in order to adopt the new instrument at first reading: a history of the legislative procedure, along with the key documents, is available on the OEIL and Prelex websites. Once the regulation is published in the OJ, the whole set of Council’s documents relating to the procedure, currently not available, will be disclosed. An interesting reading on the legislative history can also be found on the IPEX website, which gathers the opinions of national parliaments of the Member States on draft EU legislation.

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Two other PIL items are set on the agenda of the JHA meeting on Friday 8 June. The Council is expected to approve a general approach on the Brussels I recast (see the state of play in Council’s doc. no 10609/12 and the draft text set out in doc. no 10609/12 ADD 1), and to hold a debate on the orientation and the method to handle the further negotiations on the proposal for regulation on a Common European Sales Law (CESL). As regards the latter, here’s an excerpt from the background note of the meeting:

The first discussions on the [CESL] proposal have made it clear that this file entails divergences among member states. Several member states had therefore requested that a political debate at the level of the Council takes place before proceeding further with technical discussions.

To this end, the Presidency submits a discussion paper to the Council (10611/12) proposing that ministers address questions related to the legal basis and the need for the proposal, its scope (focus on sales contracts concluded on-line) and whether to start work on model contract terms and conditions.

U.S. Symposium on Personal Jurisdiction

June 7, 2012/in /by Gilles Cuniberti

The South Carolina Law Review publishes a symposium issue on (U.S.) Personal Jurisdiction – The Implications of McIntyre and Goodyear Dunlop Tires.

Keynote Address

Arthur R. Miller, McIntyre in Context: A Very Personal Perspective

Articles

Adam N. Steinman, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro

John Vail, Six Questions in Light of J. McIntyre Machinery, Ltd. v. Nicastro

Allan R. Stein, The Meaning of “Essentially at Home” in Goodyear Dunlop

Richard D. Freer, Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan

Linda J. Silberman, Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

First Issue of 2012’s Revue Critique de Droit International Privé

June 6, 2012/in /by Gilles Cuniberti

Revue Critique DIP The last issue of the Revue critique de droit international privé was just released. It contains four articles and several casenotes.

The first article is a survey of the 2011 Polish law of private international law by the late Tomasz Pajor, who was a professor at Lodz University (La nouvelle loi polonaise de droit international privé).

The second article is authored by Isabelle Veillard and explores the scope of res judicata of arbitral awards (Le domaine de l’autorité de la chose arbitrée). It is this only one to include an English abstract:

Expanding from specific arguments to the cause of action itself, the requirement that the dispute be concentrated may, in the field of arbitral res judicata, be beneficial from the standpoint of procedural speed and fairplay, but it threatens the adversarial principle all the more so that there is a presumption in favour of renunciation of the right to appeal ; this is why the non-concentration of the legal grounds of action should not be sanctioned unless it is the fruit of gross negligence or abuse in the exercise of the right to bring suit. The distrust of French law towards res judicata could be mitigated in respect of arbitral awards given the contractual nature of arbitration, by the adoption as between the parties of a mechanism of collateral estoppel, along with safeguards designed to guarantee both efficiency and fairplay with the requirements of a fair trial ; the distinction between res judicata and third party effects suffices no doubt to protect the latter.

In the third article, Aline Tenenbaum, who lectures at Paris Est Creteil University, discusses the issue of the localization of financial loss for jurisdictional purposes in the light of the Madoff case (Retombées de l’affaire Madoff sur la Convention de Lugano. La localisation du dommage financier).

Finally, in the last article, Fabien Marchadier, who is a professor at Poitiers University, explores the consequences of the ECHR case Genovese v. Malta as far as awarding citizenship is concerned (L’attribution de la nationalité à l’épreuve de la Covnentino européenne des droits de l’homme. Réflexion à partir de l’arrêt Genovese c. Malte).

Advocate General opines on Article 15 (1) lit. c) Brussels I in Mühlleitner (C-190/11)

June 4, 2012/in /by Giesela Ruehl

On 24 May 2012 Advocate General Villalón delivered his opinion in Mühlleitner (C-190/11) concerning the interpretation of Article 15 (1) lit. c) of the Brussels I-Regulation. The Austrian Supreme Court had referred the following question to the European Court of Justice: “Does the application of Article 15 (1) (c) 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 presuppose that the contract between the consumer and the undertaking has been concluded at a distance?” In his opinion Advocate General Villalón answers this question in the negative. Neither the history of the provision, nor its purpose nor the decision of the ECJ in Pammer and Alpenhof required that the contract be concluded at a distance.

The full opinion can be downloaded here, albeit not yet in English.

The Max Planck Institute Luxemburg for International, European and Regulatory Procedural Law

June 4, 2012/in /by Gilles Cuniberti

On June 1st, the Max Planck Society and the Government of the Grand Duchy of Luxemburg announced the foundation of a new Max Planck Institute for International, European and Regulatory Procedural Law (more information). Located at the Kirchberg Plateau, the Institute shall operate in three areas: the European law of civil procedure, international litigation and arbitration, financial markets and listed corporations. Professor Burkhard Hess (University of Heidelberg) and Professor Marco Ventoruzzo (University Bocconi Milano) accepted calls to the directorship of the Institute. They intend to start work in Luxemburg before the end of this year. A third Scientific Member of the Board of Directors will be appointed in coordination with the two Founding Directors. Slovenian legal expert Verica Trstenjak, who has been Advocate General at the European Court of Justice since 2006, is an External Scientific Member of the Institute.

The Luxembourg Institute shall comprehensively investigate modern civil procedural law, dispute resolution and different approaches to regulation. It focusses at European and international, at inter-disciplinary and comparative elements of dispute resolution and of regulation. Being the first Max Planck Institute on legal research located outside of Germany, it shall closely cooperate with the Faculty of Law, Economics and Finance of the Luxembourg University.

The Institute is seeking to hire senior and junior legal researchers either on a full time or temporary basis.

Several positions are available in the department for European and comparative procedural law. Interested candidates are kindly invited to send their applications to Professor Burkhard Hess. Please click here for further information.

Information regarding positions in the department of regulatory procedural law can be found here.

ATS and Extraterritoriality: A Point of View

June 3, 2012/2 Comments/in /by Marta Requejo

Profs. Juan José Álvarez Rubio, Henry S. Dahl, José Luis Iriarte Ángel, Olga Martín-Ortega, Alberto Muñoz Fernández , Lorena Sales Pallarés, Nicolás Zambrana Tévar and Francisco Javier Zamora Cabot (Reporter), are members of the Grupo de Estudio Sobre el Derecho internacional privado y los Derechos Humanos (Group Of Study On Private International Law And Human Rights). The Group has recently produced some notes on Kiobel and the issue of extraterritoriality in response to several Amicus Curiae, especially those of Germany, the Netherlands and the UK. Main premise of the paper is that discussion of the ATS should steer clear of the debate on extraterritoriality – id. est., be kept apart from what the group consider a sterile, artificial inclusion in the debate, and go on being applied extraterritorial, as it has occured for many decades. Download here.

Liber Amicorum for Klaus Schurig

June 2, 2012/in /by Giesela Ruehl

Ralf Michaels and Dennis Solomon have published a Festschrift to honor the work and life of Klaus Schurig, a leading German conflict of laws scholar. The Festschrift contains contributions by friends and colleagues dealing with current topics in German and European private international law.

More information (in German) is available here. The table of contents reads as follows:

Der gutgläubige Zwischenerwerb am Beispiel des § 16 Abs. 3 GmbHG, Holger Altmeppen
Die Liberalisierung der Strafaussetzung zur Bewährung im Jugendstrafrecht, Werner Beulke
Rechtswahlmöglichkeiten im Europäischen Kollisionsrecht, Dagmar Coester-Waltjen und Michael Coester
Fremdsprachengebrauch durch deutsche Zivilgerichte ? Vom Schutz legitimer Parteiinteressen zum Wettbewerb der Justizstandorte, Wolfgang Hau
Vorfragen im Familien- und Erbrecht: eine unendliche Geschichte, Dieter Henrich
Einverständliche Ehescheidung und Internationales Privatrecht, Erik Jayme
Kollisionsnorm und Sachrecht im IPR der unerlaubten Handlung, Abbo Junker
Vertragsinhalt oder Geschäftsgrundlage? – BGH „3 cm geschätzt“ (30.6.2011, VII ZR 13 / 10), NZBau 2011, 553, Klaus D. Kapellmann
Europa und Zivilrecht heute – Eine Skizze, Ulrich Klinke
Einige Anmerkungen zum traditionellen islamischen Kollisionsrecht, Hilmar Krüger
Methodeneinheit und Methodenvielfalt im Internationalen Privatrecht –Eine Generation nach „Kollisionsnorm und Sachrecht“, Gunther Kühne
Ein Vollmachtsstatut für Europa, Gerald Mäsch
Das Bündelungsmodell im Internationalen Privatrecht, Peter Mankowski
Movables or immovables – Zur Qualifikation eines vererbten Miterbenanteils im deutsch-englischen Erbrechtsverkehr, Heinz-Peter Mansel
Die Struktur der kollisionsrechtlichen Durchsetzung einfach zwingender Normen, Ralf Michaels
Zur Nacherfüllung beim Kauf, Hans-Joachim Musielak
Datumtheorie und „local data“ in der Rom II-VO – am Beispiel von Straßenverkehrsunfällen, Thomas Pfeiffer
Die Renaissance des Renvoi im Europäischen Internationalen Privatrecht, Dennis Solomon
Handeln unter fremdem Namen in England und Deutschland, Ulrich Spellenberg
Zur Qualifikation der nichtehelichen Lebensgemeinschaft im Europäischen Zivilprozess- und Kollisionsrecht, Andreas Spickhoff
Rückerstattung nach dem Draft Common Frame of Reference und den nachfolgenden Gesetzgebungsschritten zu einem einheitlichen Europäischen Privatrecht, Jan Wilhelm

Mills on Cosmopolitan Sovereignty

June 1, 2012/in /by Gilles Cuniberti

Alex Mills (University College London) has posted Normative Individualism and Jurisdiction in Public and Private International Law: Toward a ‘Cosmopolitan Sovereignty’? on SSRN. The abstract reads:

This paper examines one aspect of the role of the individual in international law, through analysis of the increasing recognition of individual rights in the context of jurisdiction in both public and private international law. Jurisdiction has traditionally been considered in international law as a right or power of states. The challenge to this traditional approach has arisen both at the international level and also within states, through the rise in theory and practice of doctrines of ‘denial of justice’, ‘access to justice’ and ‘party autonomy’, which reflect the increasing treatment of jurisdiction as a matter of individual right rather than state power. These developments arguably signify a transformation in the status of individuals at both international and national levels, from the passive objects of jurisdictional regulation to active rights-holders.

The analysis in this paper therefore highlights a challenge which cuts across the dual aspects of sovereignty – as international law increasingly recognises the power of legal persons beyond the state, this also provides a challenge to the claims for exclusive legal authority within states. This can also be described as the recognition of the individual, alongside the state, as a ‘sovereign’ actor, or as the recognition of ‘normative individualism’ in international and domestic law. The increased recognition of the individual in international law is a key feature of the arguments of cosmopolitan legal theorists – the challenge of normative individualism may therefore further be described as the question of whether, or to what extent, there is an emerging idea of ‘cosmopolitan sovereignty’ which attempts to accommodate the normative value of both state and individual actors.