Le droit à l’épreuve des siècles et des frontières. Mélanges Bertrand Ancel

/in /by
image_pdfimage_print

It is my pleasure to announce the release of the Mélanges en l’honneur du Professeur Bertrand Ancel – Le droit à l’épreuve des siècles et des frontières.

Bertrand Ancel has devoted his academic career to private international law and civil law, enriched with comparative law and history. Professor emeritus of the University Paris II Panthéon-Assas, editor-in-chief of the Revue critique de droit international privé from 2014 to 2017, author of the Éléments d’histoire du droit international privé, he is also a co-author, with Yves Lequette, of the Grands arrêts de la jurisprudence française de droit international privé. Combining in-depth historical knowledge of conflict of laws and international litigation with accurate analysis of the most recent case law, Bertrand Ancel belongs to the scholars who preserve private international law from dogmatism.

The many articles in French, Spanish and Italian, forming the Mélanges, have been gathered to honor his erudition, intellectual accuracy and generosity.

The list of all contributors is available here, and the book can be ordered here.

Nori Holdings: England & Wales High Court confirms ‘continuing validity of the decision in West Tankers’ under Brussels I Recast

/in /by
image_pdfimage_print

Earlier this month, the English High Court rendered an interesting decision on the (un-)availability of anti-suit injunctions in protection of arbitration agreements under the Brussels I Recast Regulation (No 1215/2012). In Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm), Males J critically discussed (and openly disagreed with) AG Wathelet’s Opinion on Case C-536/13 Gazprom and confirmed that such injunctions continue to not be available where they would restrain proceedings in another EU Member State.
 Read more

Third-party effects of assignments: BIICL event on 3 July 2018

/in /by
image_pdfimage_print

The British Institute of International and Comparative Law is organising an event to be held on 3 July on the recent developments pertaining to third-party effects of assignment. Read more

Job Vacancy: Ph.D. Position/Teaching Fellow at Leuphana Law School, Lüneburg (Germany)

/in /by
image_pdfimage_print

Leuphana Law School is looking for a highly skilled and motivated Ph.D. candidate and fellow (wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 September 2018.

The successful candidate holds a first law degree (ideally the First State Exam (Germany) or LL.M. (UK)/J.D. (USA)/similar degree) and is interested in private international law, international economic law, and intellectual property law-all from a comparative and interdisciplinary perspective. A very good command of German and English is expected.

The fellow will be given the opportunity to conduct his/her own Ph.D. project (under the faculty’s regulations). The position is paid according to the salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. The research fellow will conduct research as part of the unit led by Professor Dr. Tim W. Dornis (Chair in Private Law, International Private and Economic Law, and Comparative Law) and will have an independent teaching obligation (2 hours/week).

If you are interested in this position, please send your application (cover letter, CV, and relevant documents) by 31 July 2018 to

Leuphana Universität Lüneburg
Personalservice, Corinna Schmidt
Kennwort: WiMi Rechtswissenschaften
Universitätsallee 1
21335 Lüneburg
bewerbung@leuphana.de

Leuphana University is an equal opportunity employer.

The job advert in full detail is accessible here.

Videos of the global Conference “HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” are available

/in /by
image_pdfimage_print

The videos of the opening speeches, the keynote speech and the sessions of the global Conference “HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” (which took place in Hong Kong on 18-20 April 2018) have been uploaded onto the HCCH YouTube channel.

Erasmus+ Jean Monnet conference: “Consumer Protection and Fundamental Rights” – Riga, 18-19 June

/in /by
image_pdfimage_print

Riga Graduate School of Law (RGSL) will be hosting the Erasmus+ Jean Monnet conference titled “Consumer Protection and Fundamental Rights” on 18-19 June.

The idea of the RGSL Jean Monnet Project is to conduct a multidisciplinary exploration of Fundamental Rights including their philosophical, geographic, technological, political, cultural, societal and economic dimensions. The project is designed for researchers, public administrators, professional groups and civil society representatives. There are four conferences envisaged with the first conference focusing on consumer protection.

The conference programme is available here.

For more info on the project click here.

Double Counting the Place of the Tort?

/1 Comment/in /by
image_pdfimage_print

In common law Canada there is a clear separation between the question of a court having jurisdiction (jurisdiction simpliciter) and the question of a court choosing whether to exercise or stay its jurisdiction.  One issue discussed in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) is the extent of that separation.  Does this separation mean that a particular fact cannot be used in both the analysis of jurisdiction and of forum non conveniens?  On its face that seems wrong.  A fact could play a role in two separate analyses, being relevant to each in different ways.

Justice Cote, with whom Justices Brown and Rowe agreed, held that “applicable law, as determined by the lex loci delicti principle, should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort” (para 90).  She indicated that this conclusion was mandated by the separation of jurisdiction and staying proceedings, which extends to each being “based on different factors”.  So if the place of the tort has been used as the basis for assuming jurisdiction, the same factor (the place of the tort) should not play a role in analyzing the most appropriate forum when considering a stay.  And since the applicable law is one of the factors considered in that analysis, if the applicable law is to be identified based on the connecting factor of the place of the tort, which is the rule in common law Canada, then the applicable law as a factor “should be accorded little weight”.

In separate concurring reasons, Justice Karakatsanis agreed that the applicable law “holds little weight here, where jurisdiction and applicable law are both established on the basis of where the tort was committed” (para 100).  In contrast, the three dissenting judges rejected this reason for reducing the weight of the applicable law (para 208).  The two other judges did not address this issue, so the tally was 4-3 for Justice Cote’s view.

As Vaughan Black has pointed out in discussions about the decision, the majority approach, taken to its logical conclusion, would mean that if jurisdiction is based on the defendant’s residence in the forum then the defendant’s residence is not a relevant factor in assessing which forum is more appropriate.  That contradicts a great many decisions on forum non conveniens.  Indeed, the court did not offer any supporting authorities in which the “double counting” of a fact was said to be inappropriate.

The majority approach has taken analytical separation too far.  There is no good reason for excluding or under-weighing a fact relevant to the forum non conveniens analysis simply because that same fact was relevant at the jurisdiction stage.  Admittedly the court in Club Resorts narrowed the range of facts that are relevant to jurisdiction in part to reduce overlap between the two questions.  But that narrowing was of jurisdiction.  Forum non conveniens remains a broad doctrine that should be based on a wide, open-end range of factors.  The applicable law, however identified, has to be one of them.

Waiting for Brexit: Open issues in the Internal Market and in the Area of Freedom, Security and Justice

/in /by
image_pdfimage_print

The University of Milan-Bicocca – School of Law has issued a call for papers for the Academic Conference “Waiting for Brexit: open issues in the internal market and in the area of freedom, security and justice”. The Conference represents the closing event of the Jean Monnet course “The EU Court of Justice: techniques and instruments” and will be held at the University of Milan-Bicocca on Friday 19 October 2018.

Prof. Antonio Tizzano (Vice-President of the Court of Justice of the European Union) will chair the morning session and Prof. Fausto Pocar (Emeritus of International Law at the University of Milan) will chair the afternoon session.

Concept and main topics of the Conference

The result of the 2016 Brexit referendum was not only a political shock, but also and foremost a symbolic turning point in the history of the EU. The United Kingdom’s foreseen withdrawal from the Union has given rise to many political, legal, economic and social debates.

The main aim of the Conference is to contribute to analyse the impact and effects of Brexit on both EU Law and Italian law in practice. The “Waiting for Brexit” Conference – after a short overview of the main institutional aspects – will offer the audience with an insight into the changes that the withdrawal from the EU of a Member State will have on specific socio-economic areas. In particular, national and international experts (scholars, public officials, legal practitioners, industry representatives) will analyse and discuss topics such as banking and investment law, the transfer of personal data outside the EU, competition law, as well as certain aspects of judicial cooperation in civil and criminal matters.

In this context, the present Call aims to provide young researchers (i.e., PhD students and fellow researchers) of all disciplines with the opportunity to present their views on specific topics such as company law, IP law, consumer law, insolvency law, family law, labour law, tax law and customs union, air and maritime transport, relocation of EU agencies, etc. Nevertheless, the Organising Committee welcomes innovative and original contributions that cover topics already analysed by the expert speakers.

Abstract submission guidelines

Interested applicants should submit a short CV and a paper abstract in Italian or English of no more than 700 words (in .doc, .docx or .pdf format) to the attention of the Organising Committee (via e-mail at convegnobrexit.unimib@gmail.com).

The deadline for submission is 15 July 2018. Applications will be selected on the basis of the submitted abstracts and successful applicants will be informed by 6 August 2018.

Afterwards, successful applicants should send the draft papers to the Organising Committee by 15 September 2018. The final versions of the papers should be no longer than 40,000 characters (footnotes and spaces included). The Organising Committee will provide opportunity for publication of the best papers in a top-tier peer-reviewed European law journal.

Organising Committee

The Organising Committee is composed of Costanza Honorati (Full Professor of EU Law and Private International Law, University of Milan-Bicocca), Serena Crespi (Aggregate Professor of EU Law, University of Milan-Bicocca) and Paolo Iannuccelli (Référandaire at the Court of Justice of the European Union).

All questions and inquiries should be addressed to convegnobrexit.unimib@gmail.com. The Organising Committee is committed to answer at its earliest convenience.

Timeline for answers

  • 15 July 2018 – Deadline for the submission of abstracts
  • 6 August 2018 – Notifications sent to the successful applicants
  • 15 September 2018 – Deadline for the submission of the draft papers
  • 19 October 2018 – “Waiting for Brexit” Conference

Extraterritoriality: Outstanding Aspects (Contribution to a Collective Book)

/in /by
image_pdfimage_print

Prof. Zamora Cabot has just made available on SSRN his contribution to the collective book Implementing the UN Principles on Business and Human Rights. Private International Law Perspectives (F. Zamora, L. Heckendorn, S. de Dycker, eds.), Shulthess Verlag, Zurich, 2017. The abstract reads as follows:

“For some time, the changing concept of extraterritoriality has been associated in a variety of ways with the international protection of Human Rights. It is, for example, linked to efforts to make the reparation mechanisms of the UN’s Guiding Principles accessible. Similarly, the notion is relevant to the States’ formal Extraterritorial Obligations (ETOS), which pressure States to fulfil the framework established in the International Covenant on Economic, Social and Cultural Rights. In both cases, the volume and quality of the technical contributions that have been produced are remarkable and worth taking into consideration.

In the context of this contribution and its focus on private international law, I will however limit my remarks to this particular field. In Section I, I will address questions that are arising in the United States following the US Supreme Court’s decision in the Kiobel case. Following that, in Section II, I will introduce a cross section of extraterritorial laws that particularly impact the fields under consideration here – corporations and human rights – before summing up with some concluding remarks.”

 (You can access to the ToC of the book itself here)

The Most Appropriate Forum: Assessing the Applicable Law

/in /by
image_pdfimage_print

Another issue in the recent Supreme Court of Canada decision in Haaretz.com v Goldhar (available here) involves the applicable law as a factor in the forum non conveniens analysis.  It is clear that one of the factors in determining the most appropriate forum is the applicable law.  This is because it is quite easy for the forum to apply its own law and rather more difficult for it to apply the law of another jurisdiction.

So if the defendant can show that the forum would apply not its own law but rather the law of another jurisdiction, that points to a stay of proceedings in favour of that other jurisdiction.  In contrast, if the plaintiff can show that the forum would apply its own law, that points against a stay of proceedings.  In Haaretz.com the plaintiff was able to show that the Ontario court would apply Ontario law, not Israeli law.  So the applicable law factor favoured Ontario.

Not so, argued the defendant, because an Israeli court would apply Israeli law (see para 88).  So as between the two jurisdictions neither was any more convenient than the other!

In the Supreme Court of Canada, four of the judges rejected the defendant’s rejoinder.  The dissenting judges held that “[i]t is entirely appropriate, in our view, for courts to only look at the chosen forum in determining the applicable law.  Requiring courts to assess the choice of law rules of a foreign jurisdiction may require extensive evidence, needlessly complicating the pre-trial motion stage of the proceedings” (para 207).  In separate concurring reasons, Justice Karakatsanis agreed with the dissent on this point (para 100).  So because Ontario would apply Ontario law, this factor favours proceedings in Ontario rather than proceedings in Israel.

In contrast, Justice Cote, with whom Justices Brown and Rowe agreed, stated that “I am concerned that disregarding the applicable law in the alternative forum is inconsistent with the comparative nature of the forum non conveniens analysis” (para 89).  She cited in support an article by Brandon Kain, Elder C. Marques and Byron Shaw (2012).  The other two judges did not comment on this issue, so the court split 4-3 against looking at the applicable law in the alternative forum.

There is force to the practical concern raised by the dissent, and even with the assistance of the parties in many cases the court will be unable to form a sufficiently strong view as to what law the foreign forum would apply.  But conceptually it does seem that if it is established that the foreign forum will apply its own law, that should go to negate the benefits of the plaintiff’s chosen forum applying its own law.  Neither is any more convenient where compared against the other.

Perhaps because of the novelty of the approach, Justice Cote’s application of it may have missed the mark.  She held that “[a]s each forum would apply its own law, the applicable law factor cannot aid Haaretz in showing that it would be fairer and more efficient to proceed in the alternative forum” (para 88).  But the true point flowing from establishing that Israel would apply Israeli law, it would seem, should be that the applicable law factor cannot aid Goldhar (the plaintiff) in showing that it would be fairer and more efficient to proceed in Ontario.  If it cannot aid Haaretz.com that Israel would apply its own law, then how is the factor relevant and why is the court indicating a willingness to consider it?  It surely could not aid Haaretz.com that Israel would apply some other law.

On a motion for a stay, if the court did know what law would be applied in both the chosen forum and the alternative forum, we would have four possible situations.  On Justice Cote’s approach, if both forums would apply their own law, this is a neutral factor.  Similarly, if both forums would apply law other than forum law, this is also a neutral factor.  In the other two situations, the applicable law factor favours the forum that would be applying its own law.  With the court splitting 4-3 against looking at the applicable law in the alternative forum, this is not the approach – but should it be?