The Hague Conference is seeking to recruit its next Secretary General.

The Hague Conference on Private International Law, the world’s leading organisation for the progressive unification of the rules of private international law based in The Hague, the Netherlands, is looking for an outstanding lawyer to fill on 1 July 2013, the post of

Secretary General

In addition to a distinguished career in his/her field (intergovernmental, governmental, academic, legal practice or other), the ideal candidate has excellent knowledge of private international law, good knowledge of comparative private law, a sound understanding of public international law, extensive experience in the practice of law including international negotiations, a creative mind and a vision of the future role of the Hague Conference in the context of an increasingly complex and globalising legal environment.

A national of a Member State of the Hague Conference, he/she should be able to foster excellent working relationships with Member States’ Governments, authorities and diplomatic representatives as well as Member Organisations and to lead an international highly qualified team of legal professionals and administrative support staff. Broad management experience including strategic and financial planning, fund-raising ability as well as excellent communication and interpersonal relations skills are essential prerequisites.

Fluency in English and French is required. Working knowledge of other major languages, such as Spanish, is an asset.

Duties and responsibilities

The Secretary General is in charge of:

• preparation and organisation of the Diplomatic Sessions of the Conference, Council meetings and Special Commissions;
• implementing the work programme in conformity with the priorities and policies established by the Council on General Affairs and Policy;
• managing the human and financial resources of the Hague Conference;
• reporting to the Council on General Affairs and Policy and to Diplomatic Conferences (on the implementation of the work programme) and to the Council of Diplomatic Representatives (on financial matters); and
• representing the Hague Conference in its relations with the host Government and its authorities, other Governments and their agencies as well as intergovernmental and non-governmental Organisations.

Duration of the appointment: 5 years (renewable subject to satisfactory performance).

Salary: A7.1 (Scales of the Co-ordinated Organisations).

Applications should be submitted by e-mail no later than 14 September 2012 to the

Chairman of the Council on General Affairs and Policy
E-mail: DJZ-CR@minbuza.nl

The applications should include a CV, list of publications and a letter setting forth the candidate’s vision of his/her role as Secretary General.

Please note that only the candidates selected for interviews will be contacted.

The current Secretary General is Hans Van Loon, who has held this position since 1996 and worked at the Permanent Bureau in other capacities since 1978.

Amidst a raft of judgments and opinions handed down by the CJEU on 6 September 2012, are several of note which relate to the EU private international law instruments, as follows:

Brussels I Regulation

1. Judgment: Case C-619/10, Trade Agency Ltd v Seramico Investments – application of Arts. 34(1) and (2) to the enforcement of an English default judgment, including an assessment as to whether the enforcement of a judgment given in default of appearance, without reasons, may be opposed on public policy grounds (answer: it depends).
2. Judgment: Case C-190/11, Mühlleitner v Yusufi – the consumer contract provisions (Art. 15) may apply to a contract arising from directed activities of the kind referred to in Art. 15(1)(c) even if it has not been concluded at a distance.
3. Opinion: Case C-456/11, Gothaer Allgemeine Versicherung AG v Samskip GmbH – a preliminary judgment on a question of jurisdiction (as to the validity and effectiveness of a choice of court agreement in favour of the courts of Iceland) is a “judgment” which must be recognised under the Regulation, and findings as to the validity and scope of the agreement are binding on the court addressed regardless of its status as res judicata in the Member State of origin or the Member State addressed.

Evidence Regulation

1. Judgment: Case C-170/11, Lippens v Kortekaas – the Regulation does not preclude a Member State court, acting under its own procedural rules, from summoning a party to appear as a witness before it.
2. Opinion: Case C-332/11, ProRail NV v Xpedys NV – the Regulation does not preclude a Member State court, acting under its own procedural rules, from ordering the taking of expert evidence, partly in another Member State, provided that the performance of that part of the investigation does not require the cooperation of the authorities of that Member State.

It looks like it’s time to shake off the holiday season, and prepare for another year on the EU private international law rollercoaster.

Brooke Adele Marshall, who is an associate to the Chief Justice of the Federal Court of Australia, has published Reconsidering the Proper Law of the Contract in the last issue of the Melbourne Journal of International Law.

This article appraises the choice of law rule that applies where parties have either impliedly chosen, or failed to choose, the law governing their contract. It reconsiders the problems besetting the common law rule, known as the proper law of the contract, that were identified by Australia’s Law Reform Commission twenty years ago. While the choice of law rule in Australia remains unchanged, it has undergone significant reform in the European Community and is now the subject of reform at the Hague Conference on Private International Law. Despite these reforms, a comparative analysis reveals that several of the common law problems persist. This article proffers a proposal for Australian legislatures based on the author’s refined version of the Draft Hague Principles and the Rome I Regulation. It also suggests that the Hague Conference adopt these refinements. Under this proposal, tacit choice of law is absorbed as a subset of express choice and must be clearly established by the terms of the contract or the circumstances of the case. The probative value of an exclusive jurisdiction agreement will be made apparent in the drafting of the clause on tacit choice of law itself. It is further proposed that, in the absence of choice, the closest connection test be reduced to an escape clause applicable in default of fixed rules tailored to the exigencies of commercial contracting. The reformulated test will be used to ascertain the law of the country most appropriate for determining the issues arising in the case.

The second issue of the Journal of Private International Law has recently been released. The table of contents reads as follows:

• Hill, Jonathan, The Significance of Foreign Judgments Relating to an Arbitral Award in the Context of an Application to Enforce the Award in England, pp. 159-193
  
• Elbalti, Beligh, The Jurisdiction of Foreign Courts and the Enforcement of their Judgments in Tunisia: A Need for Reconsideration, pp. 195-224
  
• Kuipers, Jan-Jaap, Schemes of Arrangement and Voluntary Collective Redress: A Gap in the Brussels I Regulation, pp. 225-249
  
• Nagy, Csongor István, The Word is a Dangerous Weapon: Jurisdiction, Applicable Law and Personality Rights in EU Law – Missed and New Opportunities, pp. 251-296
  
• Papettas, Jenny, Direct Actions Against Insurers of Intra-community Cross-Border Traffic Accidents: Rome II and the Motor Insurance Directives, pp. 297-321
  
• Fitchen, Jonathan, “Recognition“, Acceptance and Enforcement of Authentic Instruments in the Succession Regulation, pp. 323-358
  
• Borg-Barthet, Justin, The Principled Imperative to Recognise Same-Sex Unions in the EU, pp. 359-388
  
• Smith, Peter De Verneuil; Lasserson, Ben; Rymkiewicz, Ross, Reflections on Owusu: The Radical Decision in Ferrexpo, pp. 389-405
  
• Hartley, Trevor, Private International Law by AE Anton, Third Edition by PR Beaumont and PE McEleavy ,pp. 407-410
  

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

• Urs Peter Gruber: “Scheidung auf Europäisch – die Rom III-Verordnung” – the English abstract reads as follows:

Regulation (EU) No. 1259/2010 („Rome III“) contains uniform conflict-of-laws rules on divorce and legal separation. Compared with the previous conflict-of-laws rules of the Member States, it brings about fundamental changes. Primarily, in contrast to the majority of the pre-existing national laws, it favours party autonomy. Only absent a valid agreement on the applicable law, divorce or legal separation are governed by the law of the state where the spouses have their common habitual residence or – under certain circumstances – were last habitually resident. The common nationality of the spouses and the lex fori are only subsidiary connecting factors.

The Regulation also touches some politically intricate subjects. First of all, the Regulation is also applicable to same-sex marriages; however, pursuant to a compromise reached in article 13, those Member States which do not accept same-sex marriages are not obliged to pronounce the divorce of such a marriage. Art. 10 which deals with gender discrimination might lead to a rigid exclusion of Islamic laws.

•  Christopher Wilhelm: “Die Anknüpfung von Treuhandverträgen im Internationalen Privatrecht unter besonderer Berücksichtigung der Rom I-VO” – the English abstract reads as follows:

Having contractual as well as property rights elements, and because of the great variety of its possible fields of application, the German Treuhand does not only pose problems in German substantive law, but also in private international law. The present article shows how to find the law applicable to the contractual fiduciary relationship according to the Rome I Regulation. It points out and answers certain questions arising from the material scope of the regulation, and discusses the possibility and the advantages of choice of law. The main focus is on the law applicable in the absence of choice by the parties, Article 4 Rome I, and the specific problems occurring. The article closes by summing up the key aspects and a comment of the author.

•  Matthias Lehmann: “Vorschlag für eine Reform der Rom II-Verordnung im Bereich der Finanzmarktdelikte” – the English abstract reads as follows:

 On today’s interconnected financial markets, illegal behaviour – such as false or misleading information in prospectuses, violation of disclosure and shareholder transparency rules, ill-founded credit rating, merger offers not complying with legal requirements, insider trading or market manipulation – often has repercussions in different countries. This raises the question of the law that applies to the civil liability of the tortfeasor. In the European Union, the answer has to be found in the Rome II Regulation, which provides a comprehensive set of conflict rules for non-contractual obligations. However, the regulation does not contain any specific provision on financial torts. Its general rule, Article 4 (1), points to the law of the state in which the damage occured, i.e. either the state of the investors’ home or that of their bank accounts. When looking from the perspective of the tortfeasor – typically an issuer or an intermediary – this has the effect that a multitude of different laws governs, which moreover cannot be predicted in advance. In order to remedy this situation, the German Council for Private International Law, a body established by the German Ministry of Justice, suggests amending the Rome II Regulation. The proposal, an English version of which is annexed to this article, provides for new, specific connecting factors, an escape and a fallback clause, as well as special rules regarding collective redress, bilateral relationships and party autonomy.

• Martin Illmer: “Anti-suit injunctions and non-exclusive jurisdiction agreements” – the English abstract reads as follows:

 Due to uncertainty about the interpretation and scope of two earlier, potentially conflicting Court of Appeal decisions concerning anti-suit injunctions enforcing non-exclusive jurisdiction agreements, the state of the law was unclear. Setting aside an anti-suit injunction granted by the High Court at first instance, the Court of Appeal made a fresh start. It distinguished the earlier case law on the matter and laid down general guidelines for the grant of anti-suit injunctions enforcing non-exclusive jurisdiction agreements. The decision itself as well as the accompanying plea on behalf of textbook writers deserve full support.

•  David-Christoph Bittmann: “Das Gemeinschaftsgeschmacksmuster im Europäischen Zivilprozessrecht” – the English abstract reads as follows:

 The following article deals with a decision rendered by the Oberlandesgericht Munich. Subject of this decision is an application for declaration of enforceability of an injunctive relief from the Tribunal de Grande Instance of Paris. With this injunctive relief the French court prohibited further infringements of a community design committed by a French and a Belgium enterprise, which are part of one concern. The applicant was in fear of further infringements of the community design through this concern in Germany so it applied for the declaration of enforceability of the French injunctive relief at the Landgericht Munich I. The German court however declined the application on the grounds that it has no jurisdiction as far as the Belgium enterprise is concerned; furthermore an injunctive relief was not a decision that could be subject of a declaration of enforceability. The Oberlandesgericht changed the decision and released the declaration of enforceability. The following article takes a closer look to the reasoning of the senate that had to deal with questions of international jurisdiction, of remedies in cases of protection of industrial property and of the enforcement of foreign judgements according to the Regulation Brussels I.

Read more