Out now: Hannah L. Buxbaum, Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict

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The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).

Here is an overview kindly provided by the author:

The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.

The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.

The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.

Highly recommended!

More information can be found here.

Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2019: Abstracts

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The second issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:

Adrian Briggs, Professor at Oxford University, Brexit and Private International Law: An English Perspective (in English)

The effect of Brexit on private international law in England will depend on the precise terms on which the separation is made. However, if no comprehensive withdrawal agreement is concluded and adopted, the result will be that private international law in the United Kingdom will revert to its original common law structure. This will make the law and practice of dispute resolution more effective in some respects, and more problematic in others. While it is regrettable that so much time and labour has to be spent on planning for a future which the politicians are incapable of defining, it does allow the distinctions between common law legal thinking, and European legal principles, in the field of private international law to be compared and understood more clearly than they have been for many years.

Burkhard Hess, Director of the Max Planck Institute Luxembourg for Procedural Law, Protecting Privacy by Cross-Border Injunction (in English)

Injunctive relief is of paramount importance in the protection of privacy, especially in the context of the Internet. In the cross-border setting, injunctions entail specific problems: on the one hand, jurisdiction may lie with many courts – often worldwide due to the ubiquity of the Internet. On the other hand, injunctions operate with an extraterritorial effect, ordering or prohibiting conduct outside of the State where the court issuing the order is located. Cross-border injunctive relief does not only raise issues of jurisdiction and territorial scope: in fact, additional problems relate to its enforcement. Furthermore, the need may arise to adapt the injunction to an equivalent measure in the State of enforcement. This paper addresses the problems of cross-border injunctive relief from the perspectives of jurisdiction and territorial scope, as well as of recognition and enforcement. While actions for damages and for injunctive relief are regulated in similar ways, the Author of this paper demonstrates that the specific circumstances and necessities that characterize injunctive relief warrant additional and specific solutions.

Chiara E. Tuo, Associate Professor at the University of Genoa, The Consequences of Brexit for Recognition and Enforcement of Judgments in Civil and Commercial Matters: Some Remarks (in English)

This article aims at addressing some questions regarding the impact of Brexit on recognition and enforcement of judgments in civil and commercial matters with a view to investigating the rules applicable, first, in the case that Brexit occurs without any withdrawal agreement (“hard Brexit”) and, second, regardless of whether such an agreement will be actually entered into, in the context of a future and renewed judicial cooperation relationship between the EU and UK. To this end and in relation to the first part of the analysis, the relevant passages of both the EU Commission’s guidelines and UK statutory instruments dealing with the issue of recognition and enforcement of judgments are taken into exam and compared the ones with the others in order to assess the different extent to which they provide for the continuous post-Brexit application of the existing EU instruments. On the other hand, and in relation to the second part of the article, the options currently available for a future EU-UK cooperation are considered with the purpose of shedding some light on their respective main advantages and disadvantages.

In addition to the foregoing, the following comments are featured:

Cinzia Peraro, Post-Doctoral Fellow at the University of Verona, L’istituto della kafala quale presupposto per il ricongiungimento familiar con il cittadino europeo: la sentenza della Corte di giustizia nel caso S.M. c. Entry Clearance Officer (Kafala as a Prerequisite for Family Reunification with a European Citizen: The Judgment of the Court of Justice in S.M. v. Entry Clearance Officer; in Italian)

The family reunification of a European citizen and a foreign minor entrusted to him by kafala has been addressed by a recent judgment of the Grand Chamber of the Court of Justice on the notion of direct descendant pursuant to Directive 2004/38 concerning the free movement of Union citizens and their family members. The Italian judges have also dealt with the issue of the recognition of this institute, widespread in most Islamic countries, in a variety of situations, where the best interests of the child and the European courts’ decisions have been considered. Domestic jurisprudence appears to be in line with the interpretation given by the judges of Luxembourg, which nevertheless leaves the question of the unequal treatment between Italian citizens and third country nationals unresolved.

Mariangela La Manna, Post-Doctoral Fellow at the Università Cattolica del Sacro Cuore, The ECHR Grand Chamber’s Judgment in the Naït-Liman Case: An Unnecessary Clarification of the Reach of Forum Necessitatis Juridsdiction? (in English)

The Grand Chamber judgment in the Naït-Liman v. Switzerland case is certainly a much anticipated one. Its outcome had, however, long been foreshadowed by commentators and practitioners alike. The decision confirmed the 2016 Chamber’s judgment by holding that the Swiss Federal Tribunal’s decline of jurisdiction in a civil case involving reparation for torture committed outside the territory of Switzerland by foreign authorities against a foreign national did not amount to a violation of Article 6(1) ECHR. However, the Court’s reasoning in the case under review is susceptible of being criticized in more than one respect. The compatibility of the conduct of the Swiss judiciary with Article 6(1) ECHR is dubious to say the least, even more so since the Federal Tribunal’s restrictive interpretation of the requirements for the application of forum necessitatis jurisdiction, and especially of the “sufficient connection” requirement, managed to produce a fully-fledged denial of justice. Should such a trend gain consistency, the effectiveness of the right of access to a court may be put at risk.

 

Call for Papers: International Conference at Loyala University Andalusia, 20-21 January 2020

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The Department of Law of Loyola University Andalusia will be hosting an International Conference on 20-21 January 2020 in Seville, Spain, to discuss the impact of digitalization.

The Conference which will revolve around five major thematic areas from a multi-disciplinary approach, will also include panels on digitalization and Private International Law. 

This International Conference will be a unique opportunity to discuss the new technological and digital challenges with an outstanding group of experts from different fields and a great venue to create and consolidate scientific and collaborative networks. Some of the experts who have already confirmed their participation include professors from Cornell, Harvard and other universities worldwide, officials from the United Nations, UNIDROIT, judges, members of the EU Commission expert groups, lawyers and ICT professionals.

Senior and junior scholars (including Ph.D. students) and professionals at all stages of their careers are invited to submit abstracts on some of the following, fairly broad, topics or any other related issues of novel and ground-breaking character: Ability of the basic principles of private international law to adapt to the immateriality of the digital space and new approaches to the theory of private international law in the digital context.

SUBMISSION PROCEDURE AND TIMELINE

  • We invite authors to submit extended abstracts of a minimum of 800 words with the author’s name, affiliation and an updated CV including contact details to the conference directors, in the item “Documents” on the website: http://www.uloyolaict.es. All submissions may be written in either English or Spanish.
  • The submitted abstracts will be assessed and selected by the Conference’s international scientific committee. In addition to the quality of the proposals, special consideration will be given to gender balance and the representation of professionals, associations and social partners in the different panels.
  • The deadline for submitting proposals is 15 October 2019.
  • Authors of selected abstracts for the Conference will be notified by 15 November 2019.
  • The deadline for submitting the final draft paper (3,000-5,000 words) is 10 January 2020. A ‘no paper – no podium’ strict policy applies.
  • The Conference will be held at the Dos Hermanas campus of Loyola University Andalusia, in Seville, on 20-21 January 2020.
  • Authors of accepted abstracts are expected to bear the costs of their own travel and accommodation.
  • The Conference directors are planning to publish the most relevant papers presented in the conference.
  • The deadline for submitting the final version of the selected papers (6,000-8,000 words) will be 21 February 2020. Further information about the publication process will be conveyed to selected proposal authors in due course.

VENUE

The Conference will be held at the Sevilla-Ciudad del Conocimiento campus of Loyola University Andalusia in Dos Hermanas, Seville.  Seville’s Old Town contains three UNESCO World Heritage Sites: the Real Alcazar palace complex, the Gothic Cathedral and the General Archive of the Indies. Other important sites are the Golden Tower (Torre del Oro), the Maria Luisa’s Park & Plaza de España and the ruins of the Roman City “Itálica”, used as location for some scenes of the television series Games of Thrones.

For more information, visit the official Conference website.

Scientific Committee

  • Tine Sommer (Professor of Law, Advisory Board Member of CREDI, Center for Law and Digitalization, University of Aarhus, Denmark);
  • Víctor Luis Gutiérrez Castillo (Associate Professor of Public International Law, University of Jaén);
  • Fernando Miró Llinares (Professor of Criminal Law and Criminology, Miguel Hernandez University, CRIMINA Research Center);
  • Alberto Elisavetski (Professor Law, Untref University of Buenos Aires, Director of On Line Dispute Resolution Latinamerica);
  • Michael D. Green (Professor of Law, Wake Forest University, North Carolina, USA);
  • Marie-Cécile Escande-Varniol (Professor of Law, Universidad Lumière Lyon 2)

Co-directors

  • Manuel Paniagua Zurera (Professor of Commercial Law, Loyola University Andalusia);
  • Gloria Fernández- Pacheco Alises (Assistant Professor of Criminology, Loyola University Andalusia);
  • Maria Lubomira Kubica (Assistant Professor of Civil and Comparative Law, Loyola University Andalusia);
  • Jonatan Cruz Ángeles (Assistant Professor of Public International Law, Loyola University Andalusia);
  • Rafael Aguilera Gordillo (Part-time Lecturer of Criminal Compliance and International Security, Loyola University Andalusia);
  • Ana Mercedes López Rodríguez (Associate Professor of Private International Law, Head of the Law Department, Loyola University Andalusia)

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 5/2019: Abstracts

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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

E. Jayme: On the Legal Status of Indigenous Peoples in German Cultural Property Proceedings

The Nama Traditional Leaders Association asked the Constitutional Court of the federal state Baden-Wurttemberg to issue an interim order to prevent its government from returning certain pieces of cultural property to the Republic of Namibia. These cultural goods had been taken by Germans during the colonial period and have been displayed in the Linden-Museum in Stuttgart since 1902. The Nama Association relied on the argument that these goods belonged to the Witbooi family and were part of the Nama cultural heritage. The Constitutional Court dismissed the action on procedural grounds. According to the Court, an interim order required a main action which lacked in that case. In addition, the Court remarked that the litigation was such to be better handled within Namibia. The restitution of colonial goods from European museums to the territories of their origin has been discussed widely since President Macron, in 2017, gave a speech in Ouagadougou (Burkina Faso) asking for the return of colonial goods to African countries. This idea throws up many questions of law and particularly of conflict of laws, as is evident in the Nama-case, which centres around the legal status of indigenous people in German court proceedings concerning cultural goods. The author also discusses problems of private international law, such as the law applicable to the question of property regarding such colonial goods.

M. Drehsen: Service of judicial documents within the context of the EuMahnVO

The intersection of the Regulation (EC) No 1896/2006 and the Regulation (EC) No 1393/2007 is the service of the European order for payment. Even if Art. 12 (5), 13 to 15 Regulation (EC) No 1896/2006 contain provisions on the service of the same, these are not complete upon closer examination, so that according to the decision of the ECJ of 6.9.2018 worthy of approval, recourse may be had to the Regulation (EC) No 1393/2007 and in particular to Art. 8 Regulation (EC) No 1393/2007 and the case-law of the ECJ issued in this regard. Even if the same legal consequences as for the absence of a corresponding translation are to apply to the non-addition of the form under Annex II of the Regulation (EC) No 1393/2007, the period for statement of opposition under Art. 16 (2) Regulation (EC) No 1896/2006 can begin differenthy for these two service defects to be distinguished.

S. Arnold/T. Garber: A Pyrrhic victory for Greece: International Procedure and the limits of state sovereignty

In 2012, Greek government bonds were restructured which caused enormous losses to private investors. Many of them sued the Hellenic Republic, especially in German and Austrian courts. Following a referral of the Austrian Supreme Court (OGH) the ECJ decided that actions brought by private investors against the Hellenic Republic are not covered by the scope of application of the Brussels Ibis Regulation. After the ECJ’s decision, the OGH even denied international jurisdiction of Austrian courts according to the national (Austrian) rules of civil procedure. Both decisions are flawed as regards their outcomes and their reasonings. The following lines will explore these flaws and shed some light on the decisions’ consequences.

Q.C. Lobach: International jurisdiction of the courts at the place of performance of a contract of carriage for air passengers’ claims under the Flight Compensation Reg. against a third-party operating carrier

In the Rehder/Air Baltic case, the CJEU held that the places of performance of a contract of carriage pursuant to art. 7 (1) (b) second indent Brussels I Recast Reg. are both the place of departure as well as the place of arrival of a flight. Consequently, air passengers’ claims for compensation on the basis of the Flight Compensation Reg. can be pursued before a court at either place at the election of the claimant. However, divergent opinions existed on whether these principles were accordingly applicable in cases in which a journey by air consists of various legs, while the contracting air carrier on the basis of code sharing has engaged an operating air carrier for one of the legs. In such a situation, the question is whether merely the courts at the places of departure and arrival of that particular leg or rather the courts at these places of the air travel in its totality are competent to hear the passenger’s claims against the operating air carrier. In the case at hand, the CJEU answers these as well as various other questions on international jurisdiction in relation to air passengers’ compensation claims under the Flight Compensation Reg.

H. Roth: Agreement of jurisdiction according to Art. 25 Brussels Ia Reg. and ex officio review by national courts

According to German Civil Procedure law, jurisdiction is always reviewed ex officio. Hereby, the Brussels Ia Reg. leaves room for the application of the respective national civil procedure law. According to German Civil Procedure law, the plaintiff has to conclusively present the relevant facts of the case, which are sufficient to establish the international jurisdiction of the court seized. In case of an effective objection by the defendant, the court has to take evidence. The same is true in case of an international trade custom (Art. 25 par. 1 s. 3 lit. c Brussels Ia Reg.). The German Federal Supreme Court’s decision is therefore persuasive not only by its legal outcome but also by its legal reasoning.

V. Lipp: Applicable law to child support when child changes habitual residence

The ECJ case KP./. LO is its very first case on the interpretation of the “Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations”. This “Protocol”, in fact an international convention drafted by the Hague Conference on Private International Law, contains the rules on applicable law to maintenance obligations for all member states of the European Union except Denmark and the UK. The ECJ thus first clarifies the status of the Protocol as secondary law of the EU and its competence to interpret it. It then deals with Art. 4 para. 2 of the Protocol when a child changes its habitual residence and now claims support from a parent for the period before that change took place. The following article discusses these issues in the context of the new regime for international maintenance, both within the EU and outside of it.

J. Antomo: International child abduction or homecoming: HCA caught between the best interests of the child and general prevention

In cases of child abduction, the HCA intends to restore the status quo ante by requiring the return of the child to be ordered forthwith. Judicial authorities in the state where the child is located must order the child’s return, and can only refuse to do so in strictly limited exceptional situations. This principle is based on the assumption that, as a general matter, returning the child to his or her familiar environment is in the child’s best interest. In addition, establishing an expectation that return orders will swiftly issue aims to minimize any incentives for abducting children across borders. However, in cases where the child’s habitual residence frequently changes, it is doubtful whether a return order actually serves the child’s best interests. Nevertheless, the Higher Regional Court of Stuttgart recently ordered the return of two children to Slovakia in a case where the children had only spent six months there, then moved back to their former home country Germany together with their mother. This article evaluates whether in such cases of removal to the former home country the interest of the individual child should take priority over the general preventive objectives of the Convention. The author shows that the stress that HCA procedures impose on children could particularly be reduced by promoting mediation and amicable settlements.

B. Hess: Not a simple footnote: 9/11 litigation in the civil courts of Luxembourg

On 27/3/2019, the Tribunal d’Arrondissement de Luxembourg refused to recognise two default judgments rendered by the U.S. District Court for the Southern District of New York amounting to 2.1 billion USD.2 These judgments had been given in favour of 92 victims of the 9/11 terrorist attacks. The 16 defendants included inter alia the Islamic Republic of Iran, its former heads of state and of government as well as several governmental entities and state enterprises. In a 160 pages judgment, the Luxemburg court held that recognition of the American judgment against the state defendants would amount to a violation of state immunity under customary international law. Referring to the 2012 ICJ’s judgment on state immunity3 the Luxemburg court expressly stated that neither a “terrorists exception” nor a non-commercial tort exception from immunity were applicable to the case at hand. Therefore, state immunity barred the recognition of the judgment. Besides, the court declined recognition with regard to the non-state defendants because their rights of defence had not been sufficiently respected in the original proceedings as (substantial) amendments of the lawsuit had not been served on the defendants. The judgment carefully assesses the current developments of state immunity under customary international law. It is also important for the private international law of the Grand Duchy.

I. Schneider: EIR: The reach of the lex fori concursus in lease agreements for companies with real estate property

In its decision in case 1 Ob 24/18p (21 March 2018) the Supreme Court of Austria dealt with various questions regarding the European Insolvency Regulation (EIR). Unfortunately, the court did not make a final statement on these questions since it was not essential to decide the case. The article attempts to reach a solution for the issues raised in the judgement which still remain unsolved by applying the EIR. That is the interpretation of the term “immoveable property” in Art. 11 para. 1 EIR, the relevance of the choice of law and the scope of the public policy-clause in Art. 33 EIR.

P.A. Nielsen: EU PIL and Denmark 2019

The author explains the reasons for Denmark’s reservation from 1992 towards EU cooperation in civil and commercial matters and its “opt-out” nature as well as the failed attempt in 2015 to change it to an opt-in mechanism identical to the British and Irish reservations. Furthermore, the author examines the existing parallel agreements from 2005 between the EU and Denmark in respect of originally the Brussels I Regulation and the Service Regulation and gives an account of which EU instruments Denmark is bound by.

A. Wohlgemuth: On the International Family Law of Indonesia

Indonesia, domestically equipped with a diversity of laws, that needs internal law allocation, nearly a century after independence, has not yet even codified its Private International Law, the last project of which dates from 2015. Concerning conflict of laws Indonesia is still relying on a handful of rules mostly inherited from the Dutch colonial period. These provisions, for their part, are rooted in the French Civil Code of 1804. International family law, especially on mixed marriages, is covered by the Marriage Law No. 1/1974. The following is a review of the scarce published case law of Indonesian courts and the more comprehensive legal Indonesian literature on the matter.

ASIL’s 2018-2019 U.S. Supreme Court “International Law” Year in Review

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American Society of International Law’s Dispute Resolution Interest Group will be presenting its 2018-2019 U.S. Supreme Court “International Law” Year in Review. This panel discussion will review decisions from the U.S. Supreme Court’s 2018-2019 term involving issues relating to international law and/or international relations. The discussion will include an in-depth look at the reasoning behind the decisions Republic of Sudan v. Harrison and Jam v. International Finance Corp., and will look at the prospects for several Foreign Sovereign Immunities Act cases granted or pending certiorari for the upcoming 2019-2020 term, among others. Our panelists, comprising some of the leading experts on international law issues, will also explore what these decisions tell us about the current Supreme Court’s views on matters of international interest, as well as the influence the newly appointed Justice Kavanaugh has had on these issues.

Please join us for a lively and interactive discussion and debate.

DETAILS:

Thursday, September 12
6-8pm
ASIL Tillar House, Washington DC

Registration is available here

PANELISTS

Lori Damrosch, Hamilton Fish Professor of International Law and Diplomacy, Columbia Law School

Matthew McGill, Partner, Gibson Dunn LLP

David Stewart, Professor of Law, Georgetown University Law Center

Moderated by

Caroline Edsall Littleton, Jones Day

Jennifer Permesly, Skadden Arps Slate Meagher & Flom LLP

Conflict of Laws Section of the American Association of Law Schools (AALS) Panel on Jan. 4, 2020 in Washington, DC

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On January 4, 2020, the Conflict of Laws Section of the American Association of Law Schools (AALS) will host a panel at the AALS Annual Meeting in Washington, DC.   Registration is available here.

Sessions Information
January 4, 2020

10:30 am – 12:15 pm

Room: Maryland Suite B
Floor: Lobby Level
Hotel: Washington Marriott Wardman Park Hotel

Description: The biggest development in conflict of laws in the last 100 years is the move to party autonomy. The panel will discuss issues relating to the interpretation and enforcement of choice-of-law clauses, forum selection clauses, and arbitration clauses. It will also discuss the reasons why parties may choose to arbitrate or litigate future disputes at the time of contracting.

Speakers

Moderator: John F. Coyle, University of North Carolina School of Law

Speaker: Pamela Bookman, Fordham Law School

Speaker: Christopher R. Drahozal, University of Kansas School of Law

Speaker: Laura E. Little, Temple University, James E. Beasley School of Law

Speaker: Julian Nyarko, Stanford Law School

Two new resolutions by the Institut de Droit International

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In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

  1. If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

  2. If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

  3. If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

  4. If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

  5. If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Out now: T.M.C. Asser: In Quest of Liberty, Justice, and Peace

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Arthur Eyffinger, legal historian and former Head Librarian of the International Court of Justice, recently published T.M.C. Asser (1838–1913): In Quest of Liberty, Justice, and Peace (Brill 2019). As the name suggests, the two-volume biography retraces the life of Tobias Asser, who famously won the Nobel Peace Prize in 1911 for his contributions to the field of private international law, including the establishment of the Hague Conference on Private International Law, the initiative to found the Institut de Droit International, and his role in the subsequent creation of the Hague Academy of International Law.

A copy of the book was presented to the great-grandson of Tobias Asser, Professor Daan Asser, yesterday in the context of a mini-symposium co-hosted by the Royal Netherlands Society of International Law (KNVIR) and the Institut de Droit International, which is currently holding its 79th session in the Peace Palace in the Hague. The symposium featured contributions by Marta Pertegás Sender, Janne Nijman, Jean Salmon, Hans van Loon, and the author, Arthur Eyffinger, himself.

 

Collective Actions in Europe – A Comparative, Economic and Transsystemic Analysis, C Nagy.

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Given that the UK Supreme Court has given permission to hear a third appeal concerning collective actions – two of which have direct cross-border relevance (Merricks v MasterCard Inc [2019] EWCA Civ 674; Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191; and Wm Morrisons Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339) – it may be timely to also reflect on the development of border-crossing collective actions considered in a European context.

To this end, Csongor István Nagy (of University of Szeged’s Faculty of Law) has just published an interesting open access monograph with Springer on collective actions in Europe. It is called Collective Actions in Europe – A Comparative, Economic and Transsystemic Analysis and is available at https://ssrn.com/abstract=3440551 .

Preview: Zeitschrift für Vergleichende Rechtswissenschaft – Abstracts

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The upcoming issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 118 [2019], No. 3) features the following contributions:

40 Years Convention on the International Sale of Goods (CISG) – Even More Important Today than 40 Years Ago to Encourage Trade?

Petra Butler[1]

ZVglRWiss 118 (2019) 231–256

Taking note of the United Nations Convention on Contracts for the International Sale of Good’s (CISG) upcoming 40-year anniversary the article discusses its success in light of empirical research into the contractual behaviour of small and medium-sized enterprises. The article argues that given the way small and medium-sized businesses manage their dispute resolution risk when contracting cross-border, the CISG is needed today more than ever before.

Anbahnung, Abschluss und Durchführung von Smart Contracts im Rechtsvergleich

Francesco A. Schurr

ZVglRWiss 118 (2019) 257–284

In Germany and worldwide the Smart Contract is a legitimate form that can be used to conclude and to exercise contracts. Due to the enormous relevance in all the world, it seems to be essential to use the method of legal comparison in this field. This seems to be important in order to distinguish the Smart Contract from the Distributed Ledger Technology (DLT) in general and more specifically the Blockchain. The comparative analysis of the paper shows, that the fundamental aspects of the Smart Contract, therefore the immutability, the self-enforcement and the unlimitedness, are understood differently in the various legal cultures. Still there seem to be good reasons to assume, that software algorithms will change the contractual landscape in the future: maybe one day a contractual link will be feasible without law and this link will be allocated in a global space without national boundaries. The paper shows that the national law of the respective applicable jurisdiction, that is expressed in a natural language and not in a Code, is still essential. Without that, the features of a contractual relationship and the resulting rights cannot be determined. The most recent legislative initiatives in Italy and Liechtenstein can serve as examples for the future legal development in Europe.

Is the Law Ready to Face the Progressing Digital Revolution? – General Policy Issues and Selected Aspects in the Realm of Financial Markets from the International, European Union and German Perspective

Gudula Deipenbrock[2]

ZVglRWiss 118 (2019) 285–313

The progressing digital revolution is in full swing. It dramatically transforms economies, societies and law. To financial markets, cross-border business, opaque interconnections and rapid transformation are nothing new. It is however the accelerated high-speed growth of technical complexity and advanced levels of digitalisation that force financial markets actors in an unprecedented way to adjust to it. But is the law or – more specifically – are policy makers, legislators, and particularly regulators and supervisors ready to face the manifestations of the progressing digital revolution particularly in financial markets? Such readiness to respond entails at the outset to generally define and critically assess which policies are suitable and shall be pursued in finding adequate legal answers. This paper aims to contribute to this discussion. The paper concludes that the law plays a core part in framing, channelling, structuring and monitoring the progressing digital revolution in financial markets.

Grenzüberschreitende Musterfeststellungsklagen

Simon Horn

ZVglRWiss 118 (2019) 314–340

The paper discusses under which conditions the German Model Declaratory Action allows international participation. The interaction of Sec. 606 et seqq. of the German Code of Civil Procedure and the Brussels Ibis Regulation (Regulation (EU) No 1215/ 2012) provides various possibilities for cross-border Model Declaratory Actions and generally allows international participation in all roles. However, as the Brussels Ibis Regulation is not suited for collective redress mechanisms and the Model Declaratory Action has been drafted from a strictly national perspective without sufficiently considering the problems arising from international participation, cross-border Model Declaratory Actions are a challenge for both German civil procedure and European conflict of jurisdiction rules.

 

[1] Professor Dr. Petra Butler, Victoria University of Wellington and Director Institute of Small and Micro States. – I am indebted to Chris Nixon, senior analyst (NZIER), Hanneke van Oeveren and Georgia Whelan (both former students at Victoria University Faculty of Law) for the vital empirical research they have done underlying this paper and my enthusiastic colleagues and fellow MSME researchers in Spain, Canada, Singapore, Hong Kong, Belgium, Australia, and the UK (see www.msmejustice.com). I would also like to thank my colleagues at the Max-Planck-Institute for International, European, and Regulatory Procedural Law for providing me with a stimulating and supportive research environment. The article is partly based on a paper delivered at the “The CISG as Middle Age” conference at the University of Pittsburgh in March 2019.

[2] Prof. Dr. iur. Gudula Deipenbrock, Professorin für Wirtschaftsrecht, HTW Berlin, University of Applied Sciences, Germany, and Associate Research Fellow 2018/2019 at Institute of Advanced Legal Studies (IALS), University of London, UK. The author gave talks on selected aspects of preliminary versions of this paper at HTW Berlin, University of Applied Sciences, Germany, on 16 November 2018, and at Institute of Advanced Legal Studies (IALS), University of London, UK, on 26 February 2019.