The Conference represents the final event of the JUDGTRUST Project (2018-2020), funded by the Justice Programme of the European Union (2014-2020). The objective of the Project is to identify best practices and to provide guidelines in the interpretation and application of Regulation 1215/2012 (BI-bis). The JUDGTRUST Project is coordinated by the T.M.C. Asser Instituut and carried out in partnership with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The Conference will host panels on, inter alia, the scope of application, relationship with other instruments, rules on jurisdiction, provisional measures, as well as enforcement and recognition of foreign judgments. Additionally, the key findings from the National Reports of the EU Member States will be presented. It aims to bring together academics, policy makers and legal practitioners. It will take place on Thursday 24 September 2020 at the T.M.C. Asser Instituut, The Hague. 

More information will be provided on the Project website (https://www.asser.nl/judgtrust) shortly.

Advocate General Szpunar proposes that the Court should rule that the victims of the sinking of a ship flying the Panamanian flag can bring an action for damages under the Brussels I Regulation as a “civil and commercial matter” in the sense of Article 1 before the Italian courts against the Italian bodies which classified and certified that ship.

At para. 47, the Opinion deals with the effect of customary international law on the scope ratione materiae of the Brussels I Regulation and holds:

[t]he EU legislature might have drawn inspiration from customary international law and taken general guidance from it in so far as concerns the distinction between acta iure imperii and acta iure gestionis. However, I am of the opinion that it did not have recourse to the concept of immunity from jurisdiction in order to define precisely the reach of EU rules in the area of judicial cooperation in civil matters having cross-border implications or, in particular, the material scope of Regulation No 44/2001.

At para. 59, the Opinion explains the concept of “civil and commercial matters” abstractly with a view to previous case law and holds:

[t]he Court has repeatedly held that it is the exercise of public powers by one of the parties to the case, inasmuch as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, that excludes such a case from civil and commercial matters within the meaning of Article 1(1) of that regulation. On that basis the Court has already held that an action whereby a tax authority of one Member State claims damages for loss caused by a tortious conspiracy to commit value added tax (VAT) fraud in that Member State falls within the concept of ‘civil and commercial matters’, provided that the tax authority is in the same position as a person governed by private law in the action in question. I infer from this that, in order to determine whether or not Regulation No 44/2001 is applicable in a case, it is not necessary to focus upon the field or area to which belongs the act in respect of which liability is alleged; it is necessary to consider whether that act proceeds from the exercise of public powers

As an interim conclusion, the Opinion states, at paras. 99 et seq.:

99. …[t]he mere fact that the defendants carried out the acts at issue upon delegation from a State does not in itself mean that the dispute in which liability for those acts is alleged falls outside the scope ratione materiae of Regulation No 44/2001. Secondly, the fact that those acts were carried out on behalf of, and in the interests of the delegating State does not have that effect either. Thirdly and last, the fact that those operations were carried out in performance of international obligations of the delegating State in no way calls the foregoing conclusions into question.

100. Nevertheless, whenever recourse is had to public powers when carrying out acts, Regulation No 44/2001 will not as a result apply ratione materiae in a dispute in which liability for those acts is alleged. Given the range of powers exercised by the defendants in carrying out the classification and certification of the Al Salam Boccaccio ’98, those operations cannot be regarded as proceeding from the exercise of public powers.

101.  In light of the foregoing, it should be held that Article 1(1) of Regulation No 44/2001 is to be interpreted as meaning that an action for damages brought against private-law bodies concerning classification and certification activities carried out by those bodies upon delegation from a third State, on behalf of and in the interests of that State, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

After rejecting jurisdictional immunity for the defendants, the Advocate General concluded, at para. 155:

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that an action for damages brought against private-law bodies in respect of classification and certification activities carried out by those bodies as delegates of a third State, on behalf of that State and in its interests, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

The principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of Regulation No 44/2001 in proceedings relating to such an action.

The Opinion can be found here.

The Annual Survey of American Choice-of-Law Cases for 2019, now in its 33rd year, has been posted on SSRN. A summary of the contents is reproduced below. If you are interested in the Survey, you can download it here

Here is the abstract:

This is the Thirty-Third Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 32 years: to inform, rather than to advocate.

This Survey covers cases decided by American state and federal appellate courts during 2019 and posted on Westlaw by December 31, 2019. Of the 1,404 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and in particular choice of law.

The Survey proceeds in four parts. The first describes fourteen cases decided by the United States Supreme Court. The second part discusses judgments delineating the reach of federal law in cases with foreign elements (extraterritoriality). The third part focuses on the choice-of-law part of conflicts law, in both interstate and international cases. The fourth part deals with the recognition of sister state and foreign country judgments, as well as domestic and international arbitral awards.

The Editorial Team of CoL wishes all of you a Happy New Year! We will continue trying our best to keep you posted on conflict of law views and news from around the world.

A first moment of interest might be on Tuesday 14/01/2020, 09:30 CET. According to the Judicial Calendar of the European Court of Justice, Advocate General Maciej Szpunar will deliver his Opinion on the Request for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 12 October 2018 — LG and Others v Rina S.p.A. and Ente Registro Italiano Navale (Case C-641/18).

The question referred to the ECJ relates to the application of the Brussels I Regulation and it reads (OJ C-25/18 of 21 January 2019):

Should Articles 1(1) and 2(1) of Regulation (EC) No 44/2001 (1) of 22 December 2000 be interpreted — particularly in the light of Article 47 of the Charter of Fundamental Rights of the European Union, Article 6(1) of the European Convention on Human Rights and recital 16 of Directive 2009/15/EC (2) — as preventing a court of a Member State from waiving its jurisdiction by granting jurisdictional immunity to private entities and legal persons carrying out classification and/or certification activities, established in that Member State, in respect of the performance of those classification and/or certification activities on behalf of a non-EU State, in a dispute concerning compensation for death and personal injury caused by the sinking of a passenger ferry and liability for negligent conduct?

As is explained in the Request for the Preliminary Ruling

[T]he applicants — relatives of the victims and survivors of the sinking of the Al Salam Boccaccio ’98 ferry in the Red Sea on 2 and 3 February 2006, in which more than 1 000 people lost their lives — filed a lawsuit against the defendants seeking a judgment on their collective and/or joint and several civil liability for all pecuniary and non-pecuniary losses suffered as a result of the disaster in jure proprio or jure successionis and, as a result, the award of compensation in respect of those losses. The applicants submit that the defendants acted negligently when carrying out their classification and certification activities and when adopting decisions and guidelines, thereby rendering the vessel unstable and unsafe and causing it to sink.

The defendants entered an appearance […], challenging the applicants’ claims on various grounds, including in particular — with regard to the present proceedings — the defendants’ immunity from Italian jurisdiction. Briefly, that plea is based on the fact that RINA S.p.A. and RINA ENTE were summonsed in relation to activities carried out as delegates of a foreign sovereign State, the Republic of Panama. Those activities were an expression of the sovereign prerogatives of that delegating foreign State, in whose name and in whose interest the defendants acted.

We will keep you posted…

Under the direction of Professor Eduardo Oteiza (La Plata National University, Argentina) and Professor Burkhard Hess (Max Planck Institute Luxembourg for Procedural Law), the 4^th edition of the IAPL–MPI Summer School will take place at the MPI Luxembourg on 27-30 July 2020.

The Summer School aims at bringing together outstanding young post-Doc researchers dealing with international and comparative procedural law as well as with other relevant dispute mechanisms for civil disputes. By way of exception, researchers at the very final stage of their Ph.D. project may also be admitted.

In 2020, the Summer School will focus on the interplay of global tendencies with local traditions in procedural law. This interplay may be analyzed from different perspectives, such as the cross-fertilization in lawmaking processes and between regulatory concepts or the impact of innovative methods and tools in procedural law. The Summer School also intends to reflect on the cultural dimension of litigation and dispute resolution mechanisms and on the role of local culture in shaping the approach to procedural law.

The application form and further information on the Summer School’s research focus are available here.

The deadline for applications is 31 January 2020.