Articles on the SCC’s Van Breda v Club Resorts

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Things have been pretty quiet on the conflict of laws front in Canada over the past several months.  But lower courts and academics have been working to understand the new framework for taking jurisdiction set out in April 2012 by the Supreme Court of Canada in Van Breda v Club Resorts (available here).

Several useful articles have now been written about this decision:

Tanya Monestier, “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2013) 36 Fordham International Law Journal 396

Vaughan Black, “Simplifying Court Jurisdiction in Canada” (2012) 8 Journal of Private International Law 411

Joost Blom, “New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet” (2012) 53 Canadian Business Law Journal 1

Brandon Kain, Elder Marques & Byron Shaw, “Developments in Private International Law: The 2011-12 Term – The Unfinished Project of the Van Breda Trilogy” (2012) 59 Supreme Court Law Review (2d) 277

In addition, two reference works contain discussion and analysis of the case: Walker, Castel & Walker: Canadian Conflict of Laws, 6th ed looseleaf (Markham, ON: LexisNexis Butterworths, 2005–) and Black, Pitel & Sobkin, Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act.  The former is a looseleaf and the most recent releases discuss the case in detail.  The latter is a text which was published after the case was decided.

New French Book on European Divorce Law

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A commentary of European private international law instruments applicable in divorce proceedings was just published by the University of Burgundy (CREDIMI) under the supervision of Professor Sabine Corneloup.

There are approximately a million divorces in the European Union each year, of which 140 000 have an ‘international’ element. 13% of European couples are bi-national and the trend is increasing, due especially to the freedoms of movement. The European Union has adopted two regulations in the area of divorce which are meant to simplify the life of EU citizens: regulation n° 2201/2003 « Brussels II bis » and regulation n° 1259/2010 « Rome III ». The scope of application of these rules on private international law covers not only ‘European spouses’, but also Third States nationals if at least one of the spouses has his/her habitual residence within a Member State. As the national divorce laws of the Member States have not been harmonized, considerable differences are remaining not only regarding the substantial but also the procedural aspects of divorce. There is not even a consensus on the very concept of marriage, as shows the current debate on same-sex marriage. In such a context of major differences between the national divorce laws of the Member States, the EU regulations on Private international law have a fundamental role to play.

The book is conceived as a commentary, article by article, of the regulations Brussels II bis and Rome III. It is written in French or in English, according to the authors. A comprehensive analysis of comparative law precedes the commentary itself, in order to provide practitioners with the necessary information to deal with an international divorce. The national divorce laws of six Member States are presented: Germany, Belgium, France, Spain, Italy and Portugal. The book concludes with transversal thoughts on the most important issues the European Divorce Law is currently facing.

With the contributions of :

Alegría Borrás, Hubert Bosse-Platière, Maria Novella Bugetti, Christelle Chalas, Sabine Corneloup, Alain Devers, Christina Eberl-Borges, Marc Fallon, Aude Fiorini, Estelle Gallant, Cristina González Beilfuss, Urs Peter Gruber, Petra Hammje, Rainer Hausmann, Natalie Joubert, Marco Jung, Paul Lagarde, Elena Lauroba Lacasa, François Leborgne, Yves-Henri Leleu, Luís de Lima Pinheiro, Eric Loquin, Alberto Malatesta, Françoise Monéger, Horatia Muir Watt, Valérie Parisot, Carlo Rimini, Thomas Simons, Miguel Teixeira de Sousa.

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ADR and ODR for (Cross-Border) Consumer Contracts

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On 22 April 2013 Council of the European Union adopted a Directive on Alternative Dispute Resolution (ADR) and a Regulation on Online Dispute Resolution (ODR) for (cross-border) consumer contracts. Building on two proposals of the European Commission of November 2011 the two instruments are meant to improve the cross-border enforcement of consumer rights. The official press release reads as follows (footnotes omitted):

The Council today adopted a directive on Alternative Dispute Resolution (ADR) and a regulation on Online Dispute Resolution (ODR) (PE-COS 79/12 and PE-COS 80/12). The new system, which is part of the “Single Market Act” package, will provide for simple, fast and low-cost out-of-court settlement procedures designed to resolve disputes between consumers and traders arising from the sales of goods and services. It will ensure the establishment of ADR schemes where none exist today. These will fill current gaps in coverage and ensure that consumers are able to take their disputes to an ADR. In addition, it establishes a common framework for ADR in the EU member states by setting out common minimum quality principles in order to ensure that all ADR entities are impartial, transparent and efficient. Existing national ADR schemes should be able to continue to operate within the new framework. The ADR system will be supplemented by an ODR mechanism involving the setting up of a European online dispute resolution platform (this will be an interactive website free of charge in all languages of the Union2).

As a general rule, the outcome of an ADR procedure should be made available within a period of three months from the date on which the ADR entity has received the complaint file. ADR schemes, also known as “out-of-court mechanisms”, already exist in many countries to help consumers involved in disputes which they have been unable to resolve directly with the trader. They have been developed differently across the EU and the status of the decisions adopted by these bodies differs greatly. The new directive will apply to domestic and cross-border disputes submitted by consumers against traders in almost all areas of commercial activity across the EU, including to online transactions, which is particularly important when consumers shop across borders. Member states will have two years to incorporate the new provisions into their national legislation.

Ringe on Regulatory Competition in Corporate Law in the European Union

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Wolf-Georg Ringe, Professor of International Commercial Law at the Copenhagen Business School, has posted a paper on charter competition in European Union on SSRN (“Corporate Mobility in the European Union – A Flash in the Pan? – An Empirical Study on the Success of Lawmaking and Regulatory Competition”). The paper is available here. The official abstract reads as follows:

This paper discusses new data on regulatory competition in European company law and the impact of national law reforms, using the example of English company law forms being used by German start-ups. Since 1999, entrepreneurs have been allowed to select foreign legal forms to govern their affairs. The data show that English limited companies have been very popular with German entrepreneurs in the first years of the last decade, but also document a sharp decline from early 2006 onwards. This decline casts doubt over the claim that the German company law reform from November 2008 had ‘successfully fought off’ the use of foreign company forms. Moreover, by contrasting the German data with the corresponding developments in Austria, the paper further demonstrates that the latter jurisdiction sees a similar decline without having reformed its company law. Instead of exclusively relying on law reform as the causal reason for declining foreign incorporation numbers, the paper offers a number of alternative or complementary explanations for the striking developments. The findings are important for our understanding of (defensive) regulatory competition and successful lawmaking.

Should Brussels I Have Been Applied in “Land Berlin”? Some Thoughts on the Judgment of the ECJ from April 11th, As. C- 645/11

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Many thanks to Polina Pavlova for sharing her comments on this recent ECJ ruling, first in our (MPI) weekly Referentenrunde and now here. Paulina Pavlova is research fellow of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

On April 11th, the ECJ rendered what at first sight appears to be a non-controversial judgment on the scope of application of the Brussels I Regulation. Whether the decision in the case C-645/11, Land Berlin v. Ellen Mirjam Sapir and Others is indeed as consistent as it might seem, is, however, highly questionable.

Mr. Busse owned a plot of land in East Berlin. During the Third Reich he was persecuted under the NS regime and was forced to sell the land to a third party in 1938. Later on, the plot was expropriated by the German Democratic Republic and became part of a larger, State-owned, parcel of land. After the German reunification, the ownership of this land transferred to the Land Berlin and the Federal Republic of Germany.

In 1990, the Vermögensgesetz (Law on Property) provided for the possibility that such expropriated land be returned to the original owner. Ten successors of Mr. Busse domiciled in four different States then applied for a return of the land which once belonged to Mr. Busse. However, in 1997, fulfilling this request became impossible since the Land Berlin and the Federal Republic of Germany sold the whole parcel to an investor. This was allowed by the Investitionsvorranggesetz – a Law on priority for investments in the case of claims for return under the Law on Property. As compensation, the successors were entitled to receive the corresponding proceeds of the sale or the market value of the property.

The competent authority ordered the Land Berlin to pay the respective share of the proceeds to Mr. Busse’s successors. However, the Land Berlin unintentionally transferred the entire amount of the sell price to their lawyer instead of paying only the amount corresponding to the share of Mr. Busse in the big parcel of land.  The Land Berlin then brought an action before the Landgericht Berlin against the successors of Mr. Busse and their lawyer in order to recover the overpayment. The claim was based on unjust enrichment against the successors and on tort against the lawyer.

As far as the merits are concerned, the defendants claim to be entitled to the whole amount they received alleging that the parcel had been sold under value anyway. More important for us is whether the Landgericht Berlin has jurisdiction over the defendants who are not domiciled in Germany but in the UK, Spain and Israel. This question concerns the application of the Brussels I Regulation and more specifically its Article 6 (1). The case went through all instances and finally to the Bundesgerichtshof which referred three questions to the ECJ on: (1) the notion of “civil matters” in the sense of Article 1 of the Brussels I Regulation, (2) the criteria of a close connection as required in Article 6 (1) and (3) the applicability of the latter provision to defendants not domiciled in a Member State. With regard to the specific case the ECJ basically gave a “Yes-Yes-No” answer.

Let me briefly comment the Court’s interpretation in a reversed order, starting from the third question.

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Luxembourg Conference on the Application of Nazi Law by Foreign Authorities

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Didier Boden (University of Paris I) will deliver a lecture on Tuesday 7 May in Luxembourg on the Application of the Third Nuremberg Law by Foreign States.

Le 15 septembre 1935, lors du Congrès de Nuremberg, le Reichstag adopta trois lois : la première sur le drapeau du Reich, la deuxième sur la citoyenneté, et la troisième sur « la protection du sang allemand et de l’honneur allemand », qui interdisait aux ressortissants allemands « de sang allemand ou apparenté » d’épouser des « Juifs ». Le lendemain, elle fut appliquée pour la toute première fois au mariage d’un ressortissant allemand à Amsterdam, en vertu des règles du droit international privé néerlandais.

L’incident fut immédiatement connu et en quelques jours se répandit aux quatre coins du monde la nouvelle que la troisième des lois de Nuremberg posait un problème très concret de droit international privé, sur lequel chacun des États voisins de l’Allemagne allait devoir se prononcer rapidement. Quelles furent les réponses des gouvernements néerlandais et luxembourgeois ?

The lecture will take place at 6 pm in the Amphithéatre Tavenas in the Limpertsberg district. It will be delivered in French.

More information is available here.

Succession Mortis Causa: Applicable Law (Paper)

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Isabel Rodríguez-Uría Suárez has just published a paper (click here) on the rules on the applicable law laid down by the Regulation 650/2012. The abstract of the paper, from the author, and different from the published version, reads as follows:

This paper analyzes the applicable law to the succession mortis causa as defined by the European Regulation on Succession. The general rules determining the lex successionis and the special rules setting out the applicable law to wills as well as the agreements as to succession are the main subject of this article. The scope of the aforementioned laws is also thoroughly analyzed.

On the upside, the author considers that the Regulation is an important improvement in the field of the international successions. She underlines the special features of the general rules laid down by the Regulation, and the special rules applicable to wills and to agreements as to succession. Furthermore the author highlights as extremely positive the distinction between agreements as to succession regarding the succession of one person and agreements as to succession regarding the succession of several persons. She also approves the flexibility of the general rules of the Regulation, welcoming the clause of exception to the more closely connected law, as well as the role played by the party autonomy. In respect to latter, the paper deals with the difference between professio iuris set out by art. 21, and the possibility of making a pactum de lege utenda according to art. 25.3. It is submitted that party autonomy should have been broader in its scope, and that the EU law maker has lost an opportunity to increase the role of the party autonomy, especially allowing a professio iuris to the law of the habitual residence of the deceased; this possibility would have been notably positive with regard to the agreements as to succession.

Notwithstanding her overall favourable assessment of the Regulation, the author is not blind to its downsides. Some options adopted in the Regulation are criticized in as far as they do not guarantee neither the predictability nor the legal certainty of estate planning: yet legal certainty is vital in this realm, especially when it comes to agreements as to successions, which require predictability from the very moment of their formal conclusion. In this sense, the classical approach adopted by the Regulation, placing the forced heirship under the scope of the lex successionis and fixing the lex successionis at the moment of demise (as a general rule), may give raise to several problems, which the paper analyzes in depth. The author assumes that the professio iuris would become the key factor providing the security essential to estate planning: but, as nobody can be forced to choose the law applicable to his or her succession, the possibility of coming up against problems of uncertainly (in short, the possibility that the will of the deceased be ruined by the forced heirship rules of a lex successionis unknown at the moment of the drawing up of the will or the agreement) remains open.

The paper has been drawn up as part of a global research project on succession law at comparative, international and inter-regional levels, sponsored by the Spanish Government. Linked to this same Project we have already given notice in a previous post of a paper on agreements as to successions according to the Proposal of Regulation on succession and wills. Other interesting publications related to the Project, on Forced Heirship in the Regulation on Successions and Wills, by Professor Álvarez González (abstract in English and full text in Spanish), and on the Proposal and the Spanish Interregional Law, by Isabel Rodríguez-Uría Suárez (abstract in English and full text in Spanish), can be found here and here.

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (3/2013)

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

  • Christopher Selke: “Die Anknüpfung der rechtsgeschäftlichen Vertragsübernahme” – the English abstract reads as follows:

 More than fifty years after Konrad Zweigert’s essay on the applicable law to the assignment of contracts, some issues are still unsettled. The following article gives an overview of previous comments and focuses on the scope of application. It further emphasizes the crucial question, how to determine the applicable law in the case of a cross-border assignment of a contract. In this connection, the role of the principle of party autonomy shall be challenged more carefully than it has been in the past – which does not inevitably mean that it has to be completely dismissed. There just has to exist a subsidiary objective international private law rule in the case that the parties’ choice of law leads to difficulties. Therefore, this article concludes with a proposal for such a rule.

  •  Wulf-Henning Roth: “Jurisdiction and Applicable Law in Cross-Border Defamation and Breach of Personality Rights”

 The article discusses the judgment of 25 October 2011, C-509/09 and C-161/10, eDate Advertising, in which the European Court of Justice clarifies two important issues of European private international law concerning cross-border injunctions and damages claims with regard to defamation and breach of personality rights on the internet. The first issue concerns the interpretation of Article 5 no. 3 of the Brussels I Regulation 44/2001/EC which establishes a special concurrent jurisdiction of the courts of the Member States in matters of tort liability. According to the Court, an applicant may bring an action before the court where the publisher is domiciled or before the courts of all Member States where the internet information is accessible, however restricted to the infringement of the personality rights in the relevant territory (“mosaic principle”). Alternatively, the applicant may also bring an action for an injunction or for all damages, incurred worldwide, before the court where he or she has his or her centre of interests. As for the applicable law concerning tort liability, the Court clarifies the intensely discussed meaning of Article 3 (1) and (2) of the e-commerce Directive 2000/31/EC. The Court holds that both provisions do not contain conflict of law rules. Rather, Article 3 (1) contains an obligation of the Member State where the internet provider has its seat of business to ensure that the internet provider complies with the national provisions applicable in that Member State. And Article 3 (2) allows that the Member States where the internet information is accessed may apply their own substantive law applicable to the infringement of personality rights, but not in such a way that the interstate provision of internet services is restricted.

  •  Karl-Nikolaus Peifer: “International Jurisdiction and Applicable Law in Trademark Infringment Cases”

 The German Federal Court had to deal with questions of international jurisdiction and applicable law in a trademark infringement case based upon the broadcasting of an Italian game show which was available in Germany. The Court found that German courts had jurisdiction upon the case and might apply national trademark law because trademark interests were affected in Germany. The result is arguable. However, it demonstrates that even codified rules in IP-Law leave substantial insecurities with regard to international harmony as long as IP-laws have territorial reach only.

  •  Oliver L. Knöfel: “The European Evidence Regulation: First Resort or Last?”

 In Continental Europe, treaties and other devices of judicial assistance in the obtaining of evidence abroad have traditionally been understood as tools to prevent intrusions into another State’s authority and territory. Today, there are diverging views as to whether or not the relevant legal instruments designed for civil and commercial matters, such as the Hague Evidence Convention and the European Evidence Regulation (Council Regulation [EC] No 1206/2001), have the quality of being exclusive, that is, the effect of barring any other means of gathering evidence abroad. The article reviews a judgment of the European Court of Justice (First Chamber) of 6 September 2012 (C-170/11), dealing with the mandatory or non-mandatory character of the European Evidence Regulation. The question at stake is whether a judge in a Member State must have recourse to the Regulation on each occasion that she wishes to take evidence that is situated in another Member State. The ECJ declared a Member State’s court free to summon a witness resident in another Member State to appear before it in accordance with the lex fori processus, that is, without recourse to the Evidence Regulation. The author analyses the relevant comity issues, explores the decision’s background in international law and in international procedural law, and discusses its consequences for the relationship to Third States, as well as for the traditional concept of judicial sovereignty.

  •  Gerald Mäsch: “The “Equitable Life” 2002 Scheme of Arrangement in the German Federal Court of Justice”

 The German Federal Court of Justice’s IVth Senate, in its decision of 15 February 2012, took the view that the High Court sanction of the English Insurance Company Equitable Life’s 2002 voluntary solvent scheme of arrangement has no binding effect on a dissenting policy holder residing in Germany on the ground that art. 35 (1) and 12 of the Brussels I Regulation prevent its recognition. In this article, the author argues that, based on the European Court of Justice’s ruling in “Group Josi Reinsurance”, the Brussels I Regulation pro-visions on insurance contracts should instead be interpreted as not applying to collective procedures aiming at the financial redress of an insurance company where the individual policy holder’s inferior knowledge of insurance issues is irrelevant. The same interpretation applies – mutatis mutandis – for the consumer contract provisions (art. 35 (1), 15 Brussels I Regulation), whereas the position of the IVth Senate would make the restructuring of any English company by way of voluntary agreements under English law nearly impossible if a significant number of dissenting private investors from Germany is involved. The author calls upon German courts confronted with the issue of recognition of English solvent scheme of arrangements not to follow the IVth Senate but rather to seek a preliminary ruling by the ECJ.

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