Conference in Sydney — Facing Outwards: Australian Private International Law in the 21st Century

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Globes

The Sydney Centre for International Law is a holding a conference entitled “Facing Outwards: Australian Private International Law in the 21st Century” on Wednesday, 10 April 2013.  A conference flyer may be found here. For further information and registration, click here.

The conference description is as follows:

The nation’s prosperity depends not only on the willingness of its businesses to export goods and services, and of its citizens and residents to travel to take advantage of opportunities overseas, but also on the willingness of the businesses and citizens of other nations (in particular in the Asia-Pacific region) to come to Australia to do business. Economic expansion, and parallel increases in tourism and immigration, have brought Australians into more frequent contact with the laws and legal systems of other nations. At the same time, the legal systems of Australia are faced with a growing number of disputes involving foreign facts and parties. Against this background, the Attorney-General’s current review of Australian private international law is timely and calls for debate as to the best way forward in terms of policy and substantive rule making. This conference, jointly organised by Sydney and Griffith Law Schools, brings together experts from Australia, New Zealand, Asia and Europe to consider the recent and future development of the law in this area.

The line up of speakers includes Roger Wilkins AO, Secretary of the Attorney General’s Department; Adeline Chong, Singapore Management University; Yujun Guo, Wuhan University; Elsabe Schoeman, University of Auckland; Andrew Dickinson, Sydney Law School; Michael J Hartmann, Asia-Pacific Regional Office of The Hague and formerly Justice of the Court of Appeal of Hong Kong; Mary Keyes, Griffith Law School; Thomas John, Attorney General’s Department; Richard Garnett, Melbourne Law School; Andrew S Bell SC, Eleven Wentworth Chambers; Reid Mortensen, University of Sthn Queensland; and David Goddard QC, Thorndon Chambers (Wellington).

The keynote address is to be given by the Honourable James Allsop AO, Chief Justice, Federal Court of Australia, formerly President, NSW Court of Appeal.

Fourth Issue of 2012’s Revue Critique de Droit International Prive

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Revue Critique DIPThe last issue of the Revue critique de droit international privé was just released. It contains five articles and several casenotes. A full table of contents can be found here.

In the first article, Paul Lagarde offers a survey of the 2012 succession regulation. Available abstracts are in French and German.

In the second article, Elise Ralser (University of La Réunion) discusses the issues raised by the existence of customary personal status in Mayotte island (Le statut civil de droit local applicable à Mayotte – Un fantôme de statut personnel coutumier). The English abstract reads:

The existence of customary personal status is protected by the Constitution of 4 October 1958, giving rise, within the French legal system, to a somewhat singular form of conflicts of laws. Distinct from international conflicts, internal conflicts of laws can still borrow the same methods, even if they do not always encounter the same limits. Both cases are a distributive exercise as between different rules, but the constitutional nature of internal conflicts of laws induces a different approach. Taking the personal status of Mayotte as an example, our study will describe the difficulties raised, both in the determination and in the implementation of applicable personal status in this context.

In the third article, Laurence Usunier (University Paris 13 Nord) discusses the decision of the French Supreme Court which ruled that Article 14 of the Civil Code does not raise any serious issue of compatibility with fundamental rights (La compatibilité de l’article 14 du Code civil avec les droits fondamentaux, une question dépourvue de caractère sérieux ?).

In the fourth piece, Horatia Muir Watt (Sciences Po Law School) offers thoughts on the Privy Council case La Générale des Carrières et des Mines v. F.G. Hemisphere Associates LLC (L’immunité souveraine et les fonds vautours).

Finally, Dai Yokomizo (Nagoya University) discusses in the last article the impact of the ratification by Japan of the 1980 Child Abduction Hague Convention (La Convention de La Haye sur les aspects civils de l’enlèvement d’enfants et le Japon).

Ancel and Cuniberti on One Sided Jurisdiction Clauses

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Pascal Ancel and I (University of Luxembourg) have posted One Sided Jurisdiction Clauses – a Casenote on Rothschild on SSRN.

This is a short casenote of the decision of the French Supreme Court of September 26th, 2012, which found that one-sided jurisdiction clauses are void for being binding on one party only, and are thus contrary to the purpose of Article 23 of the Brussels I Regulation. The first part of the note discusses the private international law aspects of the case. The second part discusses the application of the francophone doctrine of potestativite in the context of jurisdiction clauses.

Note: downloadable document is in French.

Hague Conference’s 2nd Guide on Accreditation under Adoption Convention

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The Hague Conference on Private International Law has issued its Second Guide on Accreditation and Adoption Accredited Bodies under the 1993 Hague Convention (Accreditation and Adoption Accredited Bodies: General Principles and Guide to Good Practice, Guide No 2 under the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption).

Accreditation practice differs widely. The understanding and implementation of the Convention’s obligations and terminology vary greatly. It is recognised that there is an urgent need to bring some common or shared understanding to this important aspect of intercountry adoption to achieve greater consistency in the operation of accredited bodies.

The purpose of this Guide is therefore to have an accessible resource, expressed in plain language, which is available to Contracting States, accredited bodies, parents and all those other actors involved in intercountry adoption. The Guide aims to:

• that the principles and obligations of the Convention apply to all actors in Hague Convention intercountry adoptions;

• clarify the Convention obligations and standards for the establishment and operation of accredited bodies;

• encourage acceptance of higher standards than the minimum standards of the Convention;

• identify good practices to implement those obligations and standards; and

• propose a set of model accreditation criteria which will assist Contracting States to achieve greater consistency in the professional standards and practices of their accredited bodies.

It is hoped that this Guide will assist the accrediting and supervising authorities in the Contracting States to perform their obligations more comprehensively at the national level, and thereby achieve more consistency at the international level.

 It can be freely downloaded here.

Will the U.S. Supreme Court Take Up a Case Involving the Interpretation of Foreign Law?

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What deference should a U.S. court give to a foreign sovereign’s interpretation of its domestic law?  That question is asked, and a whole host of interesting others, in a recently filed petition for certioari in the case of Islamic Republic of Iran v. McKesson Corp.  To make a long story short (the original complaint was filed in 1982 and the case was just subject to a final judgment of $43.1 million dollars!), McKesson Corporation alleges that the Islamic Republic of Iran expropriated its interest in a dairy operated by McKesson from the 1960s to the 1980s.  McKesson brought an action before the United States District Court for the District of Columbia, and, after much back and forth (the court of appeals has heard the case five times!), the disctrict court held that as a matter of Iranian law that McKesson had a cause of action under a Treaty of Amity between the U.S. and Iran.

While the cert. petition is largeley devoted to the question of interpreting that treaty, there is also a question presented regarding what deference is due to a foreign sovereign’s interpration of its law.  According to the cert. petition, this is a question that has split the circuits.  Some courts give “substantial deference,” others give “some degree of deference,” others give some unstated deference.

It will be interesting to see if the Supreme Court takes up this choice of law related case.

The New Issue of the TDM Journal: EU, Investment Treaties, and Investment Treaty Arbitration – Current Developments and Challenges

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tdm2(2013)TDM Journal has just published its newest issue, which addresses the often-tenuous co-existance of EU law, international investment law, and the use of investment treaty arbitration for intra-EU investment disputes. In addition to addressing the latest developments in the field, this issue tries to reflect on the remaining challenges and possible solutions for open questions. It also includes a study requested by the European Parliament’s Committee on International Trade which is made available on TDM with kind permission.

Grosse Ruse-Khan on Competing Rationalities in International Law

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Henning Grosse Ruse-Khan (Max Planck Institute for Intellectual Property & Competition Law) has posted A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health on SSRN.

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

Excessive English Costs Orders and Greek Public Policy

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Dr. Apostolos Anthimos is attorney at law at the Thessaloniki Bar, Greece. He holds a Ph.D. in International Civil Litigation and is a visiting lecturer at the International Hellenic University.

Two recent Court of Appeal rulings in Greece have demonstrated the significance of the public policy clause in international litigation and arbitration. Both judgments are dealing with the problem of recognition and enforcement of ”excessive” costs awarded by English courts and arbitration panels. The issue has been brought several times before Greek courts within the last decade. What follows, is a brief presentation of the findings, and some concluding remarks of the author.

I.a. In the first case, the Corfu CoA refused to grant enforceability to a costs order and a default costs certificate of the York County Court on the grounds that Greek courts wouldn’t have imposed such an excessive amount as costs of the proceedings for a similar case in Greece. In particular, the court found that, granting costs of more than £ 80,000 for a case, where the amount in dispute was £ 17,000, contravenes Greek public policy perceptions. Thus, the amount of £ 45,000 + 38,251.47 was considered as manifestly disproportionate and excessive for the case at hand. Consequently, the CoA granted exequatur for the remaining sums, and refused recognition for the above costs, which could not be tolerated by a court of law in Greece.

I.b. In the second case, the Piraeus CoA recognized an English arbitral award despite allegations made by the appellant, that the award’s order for costs contravened public policy. In this case the amount in dispute was in the altitude of nearly $ 3 million, whereas the costs granted did not exceed £ 100,000. The court applied the same rule as in the previous case, and found that the costs were not disproportionate to the case at stake.

II. As already mentioned above, those decisions are the last part on a sequence of judgments since 2005. Read more

Déjà vu: Italian Supreme Court on Jurisdiction over U.S. Rating Agencies

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Many thanks to Felix A. Koechel, researcher fellow of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. This contribution summarizes a presentation he made at one the Institute’s weekly seminars (the so called “Referentenrunde”), which are held every Wednesday from 2 p.m. to 4 p.m.

Prior to the German Federal Supreme Court’s decision in December 2012 (see here), the Italian Corte Suprema di Cassazione (Supreme Court) already in April 2012 was called upon to decide on Jurisdiction over damage claims brought by investors against rating agencies based in New York (Cassazione, 22 May 2012, No. 8076).

In January 2007 one of the three claimants, a stock company based in Bologna (Italy), purchased from another company based in London shares of a company based on the Cayman Islands. After the conclusion of the contract in London, the shares were pooled on the claimant’s bank account in Bologna, and subsequently transferred to two further corporations equally based in the region of Emilia-Romagna and acting as claimants. The decision to acquire the shares was allegedly motivated by positive ratings awarded by the defendants (two rating agencies based in New York) as to the financial standing of the issuer. There was, however, no contractual relationship or even direct contact between the claimants and the defendants. By July 2007 the shares had already lost 80 % of their initial nominal value while it was not before August and December 2007 that the initial ratings were downgraded. Therefore, the claimants sued the defendants in Bologna for damages allegedly suffered as a consequence of both the initial inaccurate rating and the tardive downgrading. The Court of first instance referred the question of jurisdiction to the Italian Supreme Court by means of the regolamento preventivo di giurisdizione (Article 41 of the Italian Code of Civil Procedure).

Although the facts of the Italian and the German case are similar, their outcomes differ considerably: The Italian Supreme Court declined jurisdiction on the grounds of Article 5(3) of Regulation (EC) No 44/2001. Not only is the application of the aforesaid Regulation noteworthy but the case more importantly gives an example of the problems arising from Article 5(3) Brussels I in case of merely financial damages.

Attentive readers of conflictoflaws.net know that according to Article 3(2) of Law No. 218 of 1995, in Italy the special rules of jurisdiction of the Brussels Convention apply even if the defendant is not domiciled in a contracting state (see here). Although it is controversial whether this reference should be read as referring to the Brussels I Regulation, both courts and scholars have clarified that to this date, and lacking the Italian legislator’s intervention, the reference has to be interpreted as designating the Brussels Convention (cf. Cassazione, 21 October 2009, No. 22239; cf. Pocar in Riv. dir. internaz. priv. proc. 2011, 628 ff.). It is therefore likely that the application of the Brussels I Regulation in the present case is due to the very specific wording of the question referred by the Bolognese court and may not be misinterpreted as a change in case law. Taking into consideration the continuity between the Brussels Convention and the Brussels I Regulation in the specific case of Article 5(3) this question should have been without prejudice to the Court’s decision.

In fact, Article 5(3) was the only ground of jurisdiction at hand that could have led to an Italian forum since the Italian legislator has refrained from introducing additional (exorbitant) fora. It is shown particularly in comparison with the German case that the progressive and courageous “Europeanization” of the national rules on international jurisdiction at that time came at the price of possible disadvantages for Italian claimants.

Regrettably, the Court does not address extensively the problems arising out of Article 5(3) in the case of financial damages. In line with the ECJ in Marinari (C-364/93), the Court narrows down the Article 5(3) notion of “place where the harmful event occurred” to the place of the initial damage. According to the Italian Court, this initial damage consists of the acquisition of the shares at an excessive price. Apart from that, the Italian Court neither refers to the principle of ubiquity nor to the relevant and more recent ECJ case law regarding financial damages in Kronhofer (C-168/02). While the localization of the initial damage in London can be well accepted, the Italian Supreme Court missed the chance to contribute to the discussion on the interpretation of Article 5(3) in case of financial damages. It is to be hoped that the financial crisis with its rising flood of claims against rating agencies will shed some light on the problem.

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (2/2013)

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

  • Miriam Pohl: The Recast of Brussels I – striking the balance between trust and control

Roughly two years after the presentation of the Commission’s proposal, the recast of the Brussels I Regulation was adopted on 6 December 2012. As from 10 January 2015, the recast will replace Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article presents the most important changes.

  •  Michael Coester: The Influence of EU-Law on German Conflict Rules for Registered Partnerships

Since the enactment of the German conflict rules on registered partnerships (Art. 17b EGBGB) in 2001 significant changes have taken place. The European Union is progressively building a system of private international law rules in family matters, and the constitutional as well as the human rights approach towards registered partnerships today focuses more on the protection of same-sex relationships against unjustified discrimination rather than on the protection of marriage. As a result, some elements of Art. 17b EGBGB are already today (or will be in the next future) governed by Community law instead of national law (alimony, inheritance, property issues), and basic principles of common private international law become visible. This article explores in detail (1) the scope of EU-regulations with regard to registered partnerships, (2) the convergence of the remaining text of Art. 17b EGBGB with emerging techniques and principles of Community law and (3) its conformity with overriding principles of constitutional, EU- or human rights law. It is suggested that the existing German rules of private international law on registered partnerships need an overall revision in order to bring it in line with existing constitutional law and emerging European Community law. To this end, the author submits concrete text proposals for all areas of German Private International Law on registered partnerships which are still subject to national law.

  •  Eric Wagner/Marius E. Mann: The Merchant Status of Foreign Parties in Civil Proceedings

According to section 95 Judiciary Act (Gerichtsverfassungsgesetz), the functional jurisdiction of the court seized of the matter depends on the merchant status of the parties to the proceedings. This can lead to difficulties in the case of disputes in international business dealings. For example, if a party established abroad is involved, the question arises as to what country’s laws determine whether this party has merchant status. So far there is no Supreme Court case law on this question. The views taken by the lower courts and in legal literature vary. This article offers a view of the status of the discussion and explains why, when it comes to determining, within the scope of section 95 Judiciary Act, whether merchant status is present – also in the case of foreign parties – only lex fori can be decisive.

  •  Peter-Andreas Brand: Cross-border consumer protection within the EU – Inconsistencies and contradictions in the European System of Conflict of Law Rules and Procedural Law

The endeavours throughout the European Union to create a harmonized European Procedural Law, in particular in the context of jurisdiction and recognition and enforcement, and also the process of harmonisation of the Conflict of Law Rules within the EU have realised the importance of cross-border consumer protection. Both the Rome I Regulation and Regulation No. 44/2001 on Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters contain specific provisions for the protection of consumers. It is the aim of this article to consider the practical implications of the most important provisions of the EU-Conflict of Law Rules and the Procedural Rules with respect to the applicable law, jurisdiction and the exequator proceedings. Furthermore, current inconsistencies and sometimes contradicting intentions in European legislation shall be highlighted.

  •  Christian Heinze: Keine Zustellung durch Aufgabe zur Post im Anwendungsbereich der Europäischen Zustellungsverordnung – the English abstract reads as follows:

The rules for judicial service in some EU Member States allow service of documents on parties domiciled abroad by a form of “fictitious” service within the jurisdiction. Under these rules, service is deemed to take effect at the moment when a copy of the document is lodged with a national authority, placed in the court’s case file or at the time when it is sent abroad for service, irrespective of the time when the recipient actually receives the document, if the foreign party has failed to appoint a representative in the forum state who is authorised to accept service. The following case note discusses two judgments of the German Bundesgerichtshof and the Court of Justice of the European Union (Case C-325/11 – Alder) which hold that this practice is, for inner-EU cases, incompatible with the European Service Regulation (EC) No 1393/2007 (ECJ) and German domestic law (Bundesgerichtshof). The Court of Justice has rightly coined an autonomous definition of service of a judicial document between Member States for the purposes of Article 1(1) of the Service Regulation. As a consequence, the Service Regulation provides, with the exceptions of Article 1(2) and Recital 8, for an exhaustive list of the means of transmission of judicial documents. The Service Regulation therefore excludes the application of national rules on fictitious service which would deprive the rules of the Service Regulation, in particular the right of the person to be served to benefit from actual and effective receipt, of all practical effect.

  •   Christoph Thole: Verbrauchergerichtsstand aufgrund schlüssiger Behauptung für eine Kapitalanlegerklage gegen die Hausbank des Anlagefonds? – the English abstract reads as follows:

In its judgment, the German Federal Supreme Court held that in a case brought by a consumer against the house bank of a Ponzi scheme in which the consumer had invested money, the courts in his home country enjoy jurisdiction under Art. 15, 16 Brussels I-Regulation. The Austrian bank was considered to have committed itself to the plaintiff to transfer the money paid in by the consumer into the bank’s own account in Germany to the Austrian bank account of the Ponzi scheme. The defendant was thus held to have entered into a contractual relationship with the consumer. Christoph Thole argues the judgment to be feasible, however, the ruling must not be generalized too easily. Furthermore, he emphasizes that the burden of demonstration with respect to jurisdictional issues has a Community law dimension rather than being solely based on national law.

  •  Stefan Arnold: On the scope of the jurisdiction over consumer contracts and on the nature of the doctrine of culpa in contrahendo and actions based on an infringements of sec. 32 German Banking Act (Kreditwesengesetz)

According to the Federal Court of Justice (Bundesgerichtshof), sec. 13 and 14 Lugano Convention 1988 give German courts jurisdiction in proceedings brought by German consumers concerning investments in Switzerland. Actions based on an infringement of § 32 German Banking Act (Kreditwesengesetz) and on culpa in contrahendo (here: breach of precontractual duties of disclosure) must be considered as “proceedings concerning a contract” in the sense of sec. 13 Lugano Convention 1988. The jurisdiction of German courts does not depend on the consumer’s material vulnerability. It is equally irrelevant whether the consumer took the initiative as regards the investment and whether the “specific invitation” addressed to the consumer did not constitute a legally binding offer but merely an invitatio ad offerendum. Thus, the Bundesgerichtshof implicitly argues for a formal analysis in matters of the jurisdiction over consumer contracts and acknowledges the crucial importance of legal certainty in International Procedural Law. The judgment is also relevant for the interpretation of sec. 15 Brussels I Regulation/Lugano Convention 2007.

  •   Florian Eichel: Judicial power and international jurisdiction for the enforcement of a judgment for a specific act (§§ 887 et seq. German Code of Civil Procedure) in case of a foreign place of performance

The German Federal Court of Justice (Bundesgerichtshof – BGH) held that German courts have international jurisdiction to take measures for enforcing a judgment for a specific act even when the act has to be performed abroad. This essay agrees with the outcome of the decision, discusses questions of state sovereignty and suggests that personal jurisdiction should have been derived from the Brussels I-Regulation (EC) No. 44/2001 as an unwritten annex-competence.

  •  Björn Laukemann: Actions for separate satisfaction and the European jurisdictional regime

In the case ERSTE Bank, the ECJ had to decide on the applicability ratione temporis of Article 5 of the European Insolvency Regulation (EIR) in the context of Hungary’s accession to the European Union. Thereby, the Court left out the contentious issue whether international jurisdiction over actions for the determination of collateral securities on assets belonging to the debtor’s estate is to be determined by the Brussels I regime or rather the EIR. Exemplified by actions for separate satisfaction, this article will focus on the jurisdictional delimitation between both Regulations which is now, concerning insolvency related actions in general, regulated by Article 3a of the EU-Commission’s proposal for a recast of the EIR. The article points out that the criteria underlying the principle of vis attractiva concursus are not suitable for actions for separate satisfaction and unfolds the consequences on the dispute at issue.

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