I have just received this Call for papers related to the International Seminar “50 Years of EU Private International Law in Therapy”, organized by the Spanish Association of Professors of International Law and International Relations (AEPDIRI) and the University of Valencia (Spain). It will be held in Valencia on January 25th, 2018.

The purpose of the seminar is to critically examine the five decades of codification of private international law in the EU, assessing its achievements and shortcomings, as well as its interaction with existing national and conventional responses, and with the practice of legal practitioners. In short, the seminar seeks to assess the regulatory and policy outcomes and their impact on the activity of EU operators and citizens. It covers the three classic fields of international jurisdiction, applicable law, and circulation of judgments and public documents in the European Union, without focusing on any specific act adopted by the EU. Future prospects for the process will also be addressed, considering the regulatory proposals on which the European Commission is working.

All those interested in presenting a paper should send their proposal by November 30th, 2017, to seminarioactualidad.dipr2018@aepdiri.org. For guidance purposes, the following topics are suggested (non-exhaustively):

1. Codification techniques in EU private international law.- The need for Regulations; advantages and disadvantages of sector-specific codification; external competences of the EU; interaction with the Hague Conference (HCCH) and other codification forums.

2. Scope and limitations of mutual recognition.- Enforcement of judgments; effectiveness of civil status documents; restrictions on recognition.

3. Interaction of EU private international law with the Spanish model of private international law.- Close and open-ended Regulations; scope of autonomous private international law; intra-EU and international private relations.

4. Impact of private international law on legal practitioners.- Review of the concept of authority; contentious and voluntary jurisdiction; out-of-court procedures; scope of notarial activities in the EU; implementation of EU private international law by public registry officials.

5. The “interregional” dimension of the EU private international law model.- Reference to multi-legal systems and their internal dimension; review of the Spanish model of interregional law.

Applications must be accompanied by the following documents in Word format:

-1. A document with the following information only: title of the proposal; name of the candidate; home university; academic position; indication of whether the candidate is member of AEPDIRI.

-2. Summary of the proposal (without indication of the name of the candidate, but only the title, contents and 3-5 keywords), of 1000-1500 words.

-3. Brief CV (max. 5 pages).

A book will be published  bringing together all the papers and communications submitted –or accepted without oral presentation– for this Seminar.

The European Parliamentary Research Service (EPRS) has published the results on its Study “Cross-border restitution claims of looted works of art and cultural goods”. The objective of the Study is described as follows:

“Works of art and cultural goods looted in armed conflicts or wars usually travel across several borders when they are sold. The cross-border character of looted art creates legal challenges for restitution claims as they often concern various national jurisdictions, with differing rules, as well as fragmented and insufficiently defined legal requirements in international and European legal instruments. Against this background, this European Added Value Assessment identifies weaknesses in the existing EU legal system for restitution claims of works of art and cultural goods looted in armed conflicts and wars. Moreover, it outlines potential legislative measures that could be taken at the EU level and that could generate European added value through simplification and harmonisation of the legal system in this area.”

Against this background, the Study deals, inter alia, with

(i) shortcomings of Article 7 no. 4 Brussels Ibis Regulation;

(ii) possible improvements of choice of law in relation to cultural property such as the question of a “lex originis” as a potential variation to the lex rei sitae under certain circumstances;

(iii) potential amendments on the level of substantive law such as e.g. the accession of the remaining Member States to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Goods or, alternatively, autonomous means of incorporating elements of this Convention or relevant provisions of the DCFR by extending Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State;

(iv) the special issue of Holocaust related claims for restitution, including options for developing an adequate sales law;

(v) accompanying measures on EU level such as increasing data exchange of results from provenance research or setting up a EU Agency for the Protection of Cultural Property.

The legal basis for this Study is the following: In accordance with Article 225 of the Treaty on the Functioning of the European Union (TFEU), the European Parliament has a right to ask the European Commission to take legislative action in a particular area. Such requests are based on a legislative initiative report by the parliamentary committee responsible. On 16 February 2016, the Conference of Presidents of the European Parliament authorised its Committee on Legal Affairs (JURI) to draft a legislative initiative report on cross-border restitution claims of looted works of art and cultural goods.

All legislative initiative reports must automatically be accompanied by a detailed European Added Value Assessment (EAVA). Accordingly, the JURI Committee asked the Directorate-General for Parliamentary Research Services (EPRS) to prepare an EAVA to support the legislative initiative report on the cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars. The Rapporteur is Pavel Svoboda (EPP, Czech Republic), Chairman of the JURI Committee. The author of the Study is Dr Christian Salm, Policy Analyst, European Added Value Unit. The Study is based on an externally commissioned scientific study (“Annex I”) by the author of these lines. Both texts are available here.

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabels Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:

Marc-Philippe Weller, Vom Staat zum Menschen: Die Methodentrias des Internationalen Privatrechts unserer Zeit (Referral, Recognition and Consideration: New Methodological Approaches in Private International Law):

This article draws attention to new methodological challenges posed by an increasingly globalized world: In modern European societies, individual interests are becoming more and more important, demanding private international law to no longer only determine the legal order closest connected to the respective case, but to consider individual interests and substantive arguments as well. To cope with these current developments, private international law must find a balance between individuals’ and states’ interests, while ensuring international consistency at the same time. This article aims at showing that these challenges can, however, be met if the existing system of referral was complemented by methods of recognition and consideration of local and moral data.

Dorothee Einsele, Kapitalmarktrecht und Internationales Privatrecht (Capital Market Law and Private International Law)

Claims for damages in the case of capital market offences not only grant compensation to market participants but also play an important role in the enforcement of market regulations. Hence, the question of which law is applicable to capital market offences becomes relevant. In this regard, one must make the following differentiation: If a (pre-)contractual relationship between the injuring party and the damaged person already exists at the time of the infringement, claims for damages are covered by the Rome I Regulation. Otherwise, the applicable law is determined by the Rome II Regulation. This means that the place of injury, which usually coincides with the place of habitual residence of the injured party, is, in principle, the decisive connecting factor (Art. 4(1)). However, this connecting factor, by focusing on the individual injured party, does not correspond with the character of capital market law as market organisation law. With regard to competition law, another set of rules regulating the organisation of markets, Art. 6 of the Rome II Regulation provides for the application of the law of the affected market. Since Recital 23 of the Rome II Regulation qualifies Art. 6 as a mere clarification of the general rule of Art. 4(1), the place of injury may be clarified accordingly for capital market offences and be interpreted as the law of the affected market. Capital market rules of conduct, however, are mostly overriding mandatory rules. Therefore, they are not covered by the general conflict-of-law rule for torts but are governed by special provisions, especially Art. 17 of the Rome II Regulation. The rationale of Art. 17 is to protect the legitimate expectations of the injuring party that the rules of conduct he had to comply with at the time the harmful act was committed will also be relevant to whether he has to pay damages. Therefore, the rules of conduct of the country in which the harmful act was committed, while often coinciding with the law of the affected market, may be taken into account when applying the substantive law. The rationale of Art. 17 even allows for primarily the rules of the affected market to be taken into account when market participants could expect this law and not the rules of the country where the harmful act was committed to be relevant for damage claims. Ultimately, this means that the rules of conduct of the affected market will usually be relevant, albeit not automatically but rather taking into account their nature as overriding mandatory rules. The differentiation between the applicable tort law and the relevant rules of conduct is already necessary for those rules that follow the country-of-origin principle. By contrast, it would not be consistent with the principles of the Rome I and Rome II Regulations to apply the tort law of the violated rule of conduct, as this would mean that overriding mandatory rules would determine the applicable tort law.

Hannes Wais, Einseitige Gerichtsstandvereinbarungen und die Schranken der Parteiautonomie (Unilateral Jurisdiction Agreements and the Limits of Party Autonomy)

1. Unilateral jurisdiction agreements may seem unfair when viewed from a purely procedural perspective. However, the mere imbalance of jurisdictional options between the parties may be counterbalanced by a financial or other benefit for the (procedurally) disadvantaged party. The regulation does not provide for a standard of review against which the implied unfairness can be measured.

2. Unilateral jurisdiction agreements may constitute an abuse of law. Such an abuse of law is generally prohibited under the Brussels I Regulation. Thus, where an abuse of law is ascertained, the unilateral jurisdiction agreement is void. An abuse of law exists where the sole purpose of the unilateral jurisdiction agreement is to render it impossible for the disadvantaged party to file a lawsuit or to appear in court.

3. Unilateral jurisdiction agreements may infringe substantive national law. Article 25(1) Brussels I Regulation provides for the application of the law of the prorogated forum for questions concerning the agreement’s substantive validity. Notwithstanding the still unclear definitive scope of Art. 25(1) Brussels I Regulation, the rules of lex fori prorogatiwill, in any case, apply where their purpose is to safeguard the existence of real party autonomy.

4. With regard to German substantive law, the provisions on the admissibility of standard contract terms (Secs. 305 ff. German Civil Code (BGB)) mostly fulfil these requirements. Due to the inherent imbalance in the procedural options, unilateral jurisdiction agreements differ from the conceptual approach to jurisdiction underlying the Brussels I Regulation. For this reason, where Secs. 305 ff. BGB are applicable, unilateral jurisdiction agreements are generally presumed to be void.

5. Article 31(2) Brussels I Regulation does not apply to unilateral jurisdiction agreements. Hence, these types of agreements are not immune to so-called “torpedo claims” that are filed with the sole purpose of delaying trial in the chosen court.

Johan Meeusen, Fieke van Overbeeke, Lore Verhaert, The Link Between Access to Justice and European Conflict of Laws after Lisbon, Much Ado About Nothing?

Since the Treaty of Lisbon, the access to justice principle has become “serious business”. Its insertion in the Treaty implies a certain gravity. The inclusion of conflict of laws within that realm provokes many questions. As has been explained in this paper, access to justice is not easy to define within the framework of the EU Treaty and is primarily understood in a procedural sense. It is therefore rather odd that European conflict of laws harmonisation should be approached in its light, as a procedural concept of access to justice does not seem apt to impose a substantive, policy-inspired direction upon conflict of laws, apart then from promoting the benefits served by harmonisation as such. Also, one could read in the strong emphasis by Articles 67(4) and 81(1) TFEU on mutual recognition of judicial and extrajudicial decisions in civil matters another confirmation of this procedural approach towards conflict of laws in the EU, which could eventually result in its completely auxiliary position.

From a conflict of laws perspective, yet paradoxically even more so from a broader EU perspective, such limited understanding of the purpose which choice-of-law rules can serve, would be unfortunate as some specific and valuable features of conflict of laws might remain unused. Appropriate choice-of-law rules may in their way contribute to the attainment of substantive policy goals. It should be noted however that not only this ability to incorporate policy objectives in choice-of-law rules pleads for a well-balanced approach between mutual recognition and European conflict of laws as developed by the EU legislature. Harmonised choice-of-law rules in important or delicate fields tend to create more legal certainty as well as inspire more political and judicial acceptance, one must assume, than a system solely based on mutual recognition. The Rome I, II and III Regulations and those on Maintenance and Succession illustrate the advantages of an elaborated, legislative system of conflict of laws very well. The AFSJ, however broad and vague this concept still may be, can certainly serve as an appropriate framework for the elaboration of private international law within the EU with ample space for the establishment of such a well-balanced system. The prominent place of the AFSJ, enhanced by the Treaty of Lisbon and paralleled with the clear categorisation of conflict of laws in this area, can be very instrumental in both preventing an isolated approach to conflict of laws and providing a framework which would fit its proper characteristics. Possibly, the somewhat enigmatic link with access to justice, in a modern understanding which includes substantive policies, could even stimulate this process.