Private Divorces – Lecrture on the Consequences of the CJEU decision Sahyouni

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The IACPIL (Interdisciplinary Association of Private International and Comparative Law) and the University of Vienna invite to a lecture by Prof. Budzikiewicz (in German).

Whereas private divorces were mostly executed outside Europe, nowadays Italian, French as well as Spanish law allow a contractual divorce. The lecture addresses to what extent private divorces can be valid outside the enforcing state. The recognition can be relevant in different cases, e.g. another marriage is aspired or legal questions concerning the right of maintenance, tax law as well as law of succession arise.

The CJEU recently ruled that the Rome III regulation is not applicable to a marriage divorced by a spiritual court in a third country. In this respect the lecture focuses on how private divorces are to be treated with regard to private international law and international procedural law.

The flyer can be found here

Where: University of Vienna, Juridicum, Schottenbastei 10-16, 1010 Vienna, SEM 20
When: 17 May 2018, 6 p.m.
The event is free but registration is required (office@igkk.org).

SSRN: New Paper on “Regulating Offshore Finance”

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William J. Moon has published an article titled “Regulating Offshore Finance” on SSRN. It can be accessed @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3153121. The abstract is reproduced below: Read more

International Conference: the New Hungarian Arbitration Act – Views from Hungary and Abroad

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The Department of Legal Studies of the Central European University (CEU) in Budapest and Jeantet & Partners (Paris) are organising a conference on: “The New Hungarian Arbitration Act – Views from Hungary and Abroad” on 17 May, 2018, 12:30pm – 6:30pm. Read more

US papers on Conflict of Laws, Global Governance, and International Law

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Christopher Whytock (Professor of Law and Political Science, UC Irvine) has published a number of interesting papers offering broad perspectives on the conflict of laws.

One is on conflict of laws and global governance and questions how conflict of laws contributes to transnational legal ordering: Whytock, Christopher A., Conflict of Laws, Global Governance, and Transnational Legal Order (March 14, 2018). UC Irvine Journal of International, Transnational, and Comparative Law, Vol.1, 2016; UC Irvine School of Law Research Paper No. 2018-16. Available at SSRN: https://ssrn.com/abstract=3140886

The other is on the interaction between conflict of laws and international law: Whytock, Christopher A., Toward a New Dialogue between Conflict of Laws and International Law (March 21, 2018). American Journal of International Law (AJIL) Unbound, Vol. 110, 2016; UC Irvine School of Law Research Paper No. 2018-22. Available at SSRN: https://ssrn.com/abstract=3145220.

 

HCCH Revised Preliminary Explanatory Report on the Judgments Project is available now

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A revised Preliminary Explanatory Report on the Judgments Project in both English and French is now available via the Hague Conference website.  This Report has been drawn up (and revised) by Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain and Geneviève Saumier, McGill University, Canada.

A track-changes version of the Preliminary Explanatory Report has also been made available. See in particular the amendments contained in paragraphs 201-224 in relation to intellectual property rights, which is a subject that has been somewhat controversial. Other important additions are the declarations with respect to judgments pertaining to governments (see paragraphs 344-352) and the declarations with respect to common courts (such as regional courts, see paragraphs 353-360).

A Special Commission on the Recognition and Enforcement of Foreign Judgments will be held on 24-29 May 2018 in The Hague, the Netherlands. The agenda is available here. It is envisaged that a Diplomatic Session (i.e. a high-level negotiation with a view to adopting a final text) will be held in mid-2019.

Please note that the meetings above-mentioned are open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

Proving Chinese Law: Deference to the Submissions from Chinese Government?

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Written by Dr. Jie (Jeanne) Huang, Senior Lecturer, University of New South Wales Faculty of Law

The recent U.S. Supreme Court case, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd, concerns what weight should be given to the Chinese government’s submission of Chinese law. On Page 58 of the trial transcript, Justices Kagan and Ginsburg asked how about other countries dealing with formal submissions from the Chinese government. There are two examples.

One is Hong Kong. In TNB Fuel Services SDN BHD v China National Coal Group Corporation ([2017] HKCFI 1016), the issue is whether the defendant, a state-owned enterprise, is protected by Chinese absolute sovereignty immunity under Chinese law. The court deferred to an official letter provided by the Hong Kong and Macao Affairs Office of the State Department in Mainland China. The Office answers no absolute sovereignty immunity to Chinese state-owned enterprises carrying out commercial activities. The Court adopted this opinion without second inquiry (para 14 of the judgment). After considering a bunch of other factors, the court ruled against the defendant.

The other is Singapore. In Sanum v. Laos ([2016] SGCA 57), the issue is whether the China-Laos Bilateral Investment Treaty (BIT) shall be applied to Macao Special Administrative Region. Chinese embassy in Laos and China Ministry of Foreign Affairs provided diplomatic announcements indicating that the BIT shall not be applied to Macao. However, the Court of Appeal of Singapore held that China’s announcements were inadmissible and, even if admitted, they did not change the applicability of the BIT to Macau. This is partly because, before the dispute with Sanum crystalized, no evidence showed that China and Laos had agreed that the BIT should not be applied to Macau. Therefore, the China’s diplomatic announcements should not be retroactively applied to a previous dispute. For a more detailed discussion, please see pages 16-20 of my article.

TNB Fuel Services and Sanum share important similarities with Animal Science Products, because the key issues are all about the proving of Chinese law. In the three cases, Chinese government all provided formal submissions to explain the meaning and the applicability of Chinese law. However, TNB Fuel Services and Sanum can also be distinguished from Animal Science Products, because comity plays no role in the former two cases. TNB Fuel Services concerns sovereign immunity, which is an issue that Hong Kong courts must follow China’s practices. This is established by Democratic Republic of the Congo v. FG Hemisphere Associates (FACV Nos. 5, 6 & 7 of 2010). Sanum is a case to set aside an investment arbitration award, so the Court of Appeal of Singapore need not consider comity between Singapore and China. In contrast, in Animal Science Products, the U.S. Court of Appeals for the Second Circuit elaborated the importance of comity between the U.S. and China. Therefore, Animal Science Products should not be considered as a technical case of proving foreign laws. The U.S. Supreme Court may consider deferring to the submissions of Chinese government to a certain extent but allows judges to decide whether the Chinese government’s submission is temporally consistent with its position on the relevant issue of Chinese law.

Who Owns France.com?

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France is a state. France.com, by contrast, is a domain name, and it was, until recently, owned not by the French state but instead by a Californian company, France.com, Inc. That conflict is now being litigated in a fascinating dispute  reminiscent of the early days of the internet.

In those early days, in 1994 to be precise, a French-born individual living in the United States, Jean-Noël Frydman, registered the domain name France.com. The domain name is now held by a Californian company, France.com Inc, which Frydman set up. The website, at first dedicated to general information for Francophiles around the world, was later expanded to operate as a travel site. But France.com, Inc, did not, it appears, own trademarks in Europe. This enabled a Dutch company, Traveland Resorts, to register French and European word and graphic marks for France.com in 2010. In 2014, France.com, Inc brought suit in France against Traveland for fraudulent filings of trademarks and achieved a settlement under which Traveland transferred the trademarks.

But that was a Pyrrhic victory. The French state and its own travel development agency, Atout,  intervened in the litigation, claiming the trademarks for itself instead. Atout had been running, since 2010, its own information site, france.fr. French state and Atout were successful, first before the Tribunal de Grande Instance, Paris , and then, partly, on  appeal before the Cour’ d’appel de Paris (English translation, note by Alison Bouakel)  As a consequence, web.com transferred the domain in 2018. Now, France.com immediately directs to France.fr.

So far, the conflict is mostly a French affair. But Frydman is taking the litigation to the United States. France.com, Inc has brought suit in Federal Court in Virginia against the French State, Atout, and against Verisign, the authoritative domain registry of all .com addresses.  The suit alleges cybersquatting, reverse domain hijacking, expropriating, trademark infringement, and federal unfair competition. US courts and WIPO panels have so far not looked favorably at foreign government’s claims for their own .com domain name; examples include PuertoRico.com, NewZealand.com, and Barcelona.com. Will the French State be more successful, given the French judgment in its favor?

Although neither the French courts nor the complaint in the United States address conflict of laws issues, the case is, of course, full of those. Are the French state and its travel agency protected by sovereign immunity? The Foreign Sovereign Immunities Act contains an exception for commercial activities and is limited to sovereign acts: Does ownership of a domain name constitute commercial activity? Surely, many of the activities of Atout do. Or is it linked to sovereignty? After all, France is the name of the country (though not, ironically, the official name.) The U.S. Court of Appeal for the Second Circuit left the question open in 2002 (Virtual Countries, Inc. v. South Africa, 300 F.3d 230).

Must the federal court recognize the French judgment? That question is  reminiscent of the Yahoo litigation. Then, a French court ordered that Yahoo.com could not offer Nazi paraphernalia on its auction website. Yahoo brought a declaratory action in federal court against recognizability of the judgment in the United States. The affair created a lively debate on the limits of territorial reach in internet-related litigation, a debate that is still not fully resolved.

Relatedly, did the French state engage in illegal expropriation without compensation? Such acts of expropriation are in principle limited to the territory of the acting state, which could mean that the French state’s actions, if so qualified, would be without legal effect in the United States.

To what extent is US law applicable to a French trademark? By contrast, to what extent can the French trademark determine ownership of the domain? Trademarks are a perennially difficult topic in private international law, given their territorial limitations; they conflict in particular with the ubiquity of the internet.

Is the top level domain name – .com, as opposed to .fr – a relevant connecting factor in any of these matters? That was once considered a promising tool. But even if .fr could in some way link to France as owner, it is not clear that .com links to the United States, given that it has long been, effectively, a global top level domain. On the other hand, most governments do not own their own .com domain. And US courts have, in other cases (most famously concerning barcelona.com) not doubted applicability of US law.

A timeline with links to documents can be found at Frydman’s blog site.

 

 

Revisiting the ‘Content-of-Laws’ Enquiry in International Arbitration

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Soterios Loizou at King’s College London has uploaded an interesting article on ssrn entitled “Revisiting the ‘Content-of-Laws’ Enquiry in International Arbitration”. The abstract is:

Establishing the content of the applicable law is one of the most important, albeit seldom examined, topics in the theory and practice of international arbitration. Setting as point of departure the regulatory vacuum in nearly all national laws on international arbitration, this study examines in depth this “content-of-laws” enquiry in an attempt to foster doctrinal integrity, legal certainty and predictability in arbitral proceedings. Specifically, this study encompasses a three level analysis of the topic. Firstly, it explores the theoretical underpinnings and the various approaches articulated in legal theory to the establishment of the content of the applicable law in international litigation and arbitration. Secondly, on the basis of an elaborate comparative review of the various legal regimes and jurisprudence in the most frequently selected venues of arbitration, namely England & Wales, France, Hong Kong, Singapore, Switzerland, the state of New York (USA), and Sweden, as well as in leading investment arbitration fora, it challenges conventional wisdom by showcasing the emerging trend towards the application of a “facultative” jura novit arbiter principle in international arbitral proceedings. Thirdly, it delineates a clear modus operandi for arbitral tribunals, and national courts reviewing arbitral awards in annulment proceedings, and offers model clauses, arbitration rules, and national law provisions on the content-of-laws enquiry. The study concludes with some final remarks and observations that amplify the importance of continuous governing law related consultations between the parties and the arbitrators throughout the arbitral proceedings, and, certainly, before the tribunal has rendered its final award.

The full article can be accessed here.

Out now: Issue 2 of RabelsZ 82 (2018)

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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: Read more

ERA Summer Courses: Cross-Border Insolvency Proceedings and Cross-Border Civil Litigation

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ERA Summer course on cross-border insolvency proceedings

Trier, 11-13 June 2018

This intensive course on insolvency law will introduce lawyers to practical aspects of cross-border insolvency proceedings: different national insolvency laws, EU legislation and major CJEU case law will be presented.

The course will focus on the recast EU Regulation No 2015/848 on insolvency proceedings, including the following key topics:

  • Centre of main interest (COMI) and forum shopping
  • Coordination of proceedings
  • Insolvency, cross-border security and rights in rem

Following an introduction to different insolvency law systems within the EU, participants will discuss the recent proposal for a Directive on insolvency and post-Brexit implications for insolvency and restructuring. Participants will be able to deepen their knowledge through case studies and workshops.

Cross-border civil litigation: summer course

Trier, 2-6 July 2018

“How do I recover money owed to me by my business partner residing abroad?” This is a problem that many companies and individuals are facing nowadays. The ERA summer course will provide you with answers. Get to know Brussels Ia, Rome I, Rome II, the European Account Preservation Order, the European Enforcement Order, the European Payment Order, the Small Claims Regulation, the Regulation on service of documents and taking of evidence, and the EU framework on mediation, ADR & ODR – and find out which path best to take!

You will learn:

  • …which court is competent to hear your case
  • …how to serve a judicial document
  • …how to take evidence abroad
  • …to advice on how to enforce a judgment abroad
  • …to apply the recent CJEU case law in the field
  • …which way to choose to recover money owed to your client
  • …to provide guidance on how to efficiently freeze monies in foreign bank accounts
  • …how to best apply the Rome I & II Regulations
  • …what is the added value of ADR & mediation

 

This course will provide you with hands-on experience on cross-border civil litigation cases and the recent jurisprudence of the European Court of Justice. All relevant EU instruments will be presented and analysed, both by way of lectures and case studies. You will profit from daily workshops where active participation is encouraged.