Stephen Burbank (University of Pennsylvania Law School) has posted Whose Regulatory Interests? Outsourcing the Treaty Function on SSRN.

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or state flag. A related question is whether, if the uniformity we seek is to be found in state rather than federal law, we can be, and be seen by other countries to be, serious about international cooperation. I describe in some detail the sequence of events that led to the Uniform Law Commissioners (“ULC”) becoming involved in the process of drafting legislation to implement the Choice of Court Convention. I also explore reasons why the ULC has been successful in securing the lion’s share of attention for its preferred approach to implementation, which the ULC calls “cooperative federalism,” but which has come to resemble cooperative redundancy. Recounting how, and offering suggestions why, the ULC ultimately rejected a package of compromises proposed by the State Department’s Legal Adviser, even though almost all compromises were in favor of the ULC, I conclude with observations about the ULC’s ambitions in the international arena. My argument is that, if the ULC were successful in taking over the negotiation or implementation of private international law treaties, international cooperation would be if not a fortuity, then not a priority, because we would have regressed to a position of privileging not just federal but state law uniformity over international uniformity. And the state law we privileged would be anything but “indigenous.”

The article is forthcoming in the New York University Journal of International Law and Politics in 2013.

On November 22nd, the European Court of Justice delivered its judgment in Bank Handlowy w Warszawie SA v. Christianapol sp. z o.o. (Case C-116/11).

The reference was made in the context of proceedings relating to the opening of insolvency proceedings, in Poland, further to an application made by Bank Handlowy w Warszawie SA and PPHU ‘ADAX’/Ryszard Adamiak, in respect of Christianapol sp. z o.o., a company governed by Polish law in respect of which rescue proceedings (procédure de sauvegarde) had previously been opened in France.

1.      Article 4(2)(j) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, as amended by Council Regulation (EC) No 788/2008 of 24 July 2008, must be interpreted as meaning that it is for the national law of the Member State in which insolvency proceedings have been opened to determine at which moment the closure of those proceedings occurs.

2.      Article 27 of Regulation No 1346/2000, as amended by Regulation No 788/2008, must be interpreted as meaning that it permits the opening of secondary insolvency proceedings in the Member State in which the debtor has an establishment, where the main proceedings have a protective purpose. It is for the court having jurisdiction to open secondary proceedings to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, in keeping with the principle of sincere cooperation.

3.      Article 27 of Regulation No 1346/2000, as amended by Regulation No 788/2008, must be interpreted as meaning that the court before which an application to have secondary insolvency proceedings opened has been made cannot examine the insolvency of a debtor against which main proceedings have been opened in another Member State, even where the latter proceedings have a protective purpose.

Recovery of Maintenance in the EU and worldwide

International  Conference Heidelberg | 5 – 8 March 2013

Maintenance  Regulation  (EC)  No 4/2009, the  2007 Hague  Protocol  and the  2007 Hague Maintenance Convention have given rise to exciting developments in the interna- tional recovery of maintenance. Make sure to be there  when  speakers such as Prof. Frédérique Ferrand, Prof. Nadia de Araújo, Prof. Dr. Erik Jayme, William  Duncan, Prof. Paul Beaumont, Robert Keith and Prof. Dr. Burkhard   Hess  present  and discuss  this topic. Within the framework of the confe- rence, there will be the possibility to enter into an exchange and to establish a network with all the persons working in this field.

For more information, please visit www.heidelberg–conference2013.de.

Vicki Turetsky, Prof. Andrea Bonomi, William Duncan, Philippe Lortie, Prof. Paul Beaumont, Prof. Dr. Burkhard Hess, Chris Beresford, Hannah Roots, Maja Groff, Dr. Matthias Heger, Dr. Thomas Meysen, Mary Dahlberg, Gary Caswell, Martina Heller, Dr. Richard Frimpong Oppong, Robert Keith, David Stillman, Prof. Nadia de Araújo and Dr. James Ding, Katja Lenzing, Lis Ripke and Jessica Pearson will present the following topics, among others:

Cultural dimension of maintenance from an international law perspective

• From complexity to simplicity, from chaos to Hague Convention 2007
• Presentation of “highly functional administrative systems”, including  IT solutions
• EU Maintenance Regulation: The devil’s in the details
• Applicability and application of foreign law
• Effective cooperation of the Central Authorities
• Good practice for caseworkers: the rocky pathways to the recovery of maintenance
• Perspectives of Asian, American, African and Latin American states
• Children in focus: poverty and maintenance
• Successful alternative dispute resolution

Curious? Click here: www.heidelberg–conference2013.de/program.html

Online registration at:

www.heidelberg–conference2013.de/registration/?page=1&lng= en.

At its 3207th meeting held in Brussels, the Council of the European Union has approved the recast of the Brussels I Regulation in the form settled with the European Parliament in a first reading agreement. The accompanying press release announces as follows:

The purpose of this regulation is to make the circulation of judgments in civil and commercial matters easier and faster within the Union, in line with the principle of mutual recognition and the Stockholm Programme guidelines.

The recast regulation will substantially simplify the system put in place by “Brussels I” as it will abolish exequatur, i.e. the procedure for the declaration of enforceability of a judgment in another member state. According to the new provisions, a judgment given in a member state will be recognised in the other member states without any specific procedure and, if enforceable in the member state of origin, will be enforceable in the other member states without any declaration of enforceability.

The recast regulation will provide that no national rules of jurisdiction may be applied any longer by member states in relation to consumers and employees domiciled outside the EU. Such uniform rules of jurisdiction will also apply in relation to parties domiciled outside the EU in situations where the courts of a member state have exclusive jurisdiction under the recast regulation or where such courts have had jurisdiction conferred on them by an agreement between the parties.

Another important change will be a rule on international lis pendens which will allow the courts of a member state, on a discretionary basis, to stay the proceedings and eventually dismiss the proceedings in situations where a court of a third state has already been seized either of proceedings between the same parties or of a related action at the time the EU court is seized (sic).”

Under Art. 81, the recast Regulation (“Brussels 1a”?) will apply from a date 24 months after its entry into force, being 20 days after its publication in the Official Journal. The new rules will not, therefore, apply until early 2015, by which time their potential impact will likely have been closely scrutinised on this site and elsewhere. The UK and Ireland are taking part in the adoption of the recast Regulation, which will also be applicable to Denmark under the terms of the 2005 Agreement between that country and the EC extending the Brussels I regime.