Annual Survey of American Choice-of-Law Cases for 2018

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Symeon Symeonides‘ Annual Survey of American Choice-of-Law Cases for 2018, now in its 32nd 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 by clicking here.
If you are interested in the Private International Law Bibliography for 2018, you can download it from SSRN by clicking here.

Symeon sends his best wishes for the New Year, and I concur.

Table of Contents

Introduction

I. The Extraterritorial Reach of Federal Law

A. The Alien Tort Statute

B. The Fourth and Fifth Amendments and Cross-Border Shootings

C.-M. Other Federal Statutes

II. Choice of Law

A. Proof of Foreign Law

B. Anti-Foreign Law Amendments

C. Choice-of-Law Methodology

D. Contracts

1. Contracts with Choice-of-Law Clauses

a. Choice of Procedural or Conflicts Law

b. Choice-of-Law Clauses and Statutes of Limitation

c. Plain Choice-of-Law Clauses

d. Choice-of-Law and Forum-Selection Clauses

e. Choice-of-Law and Arbitration Clauses

2. Contracts without Choice-of-Law Clauses

E. Torts

1. Common Domicile Cases

2. Cross-Border Unfair Trade Practices

3. Other Torts

F. Products Liability

G. Statutes of Limitation

H. Insurance Conflicts

I. Nazi-Looted Art

J. Domestic Relations

1. Marriage and Divorce

2. Marital Property

3. Adoption and Succession

4. Child Custody and the Hague Convention

III. Recognition of Foreign Judgments and Awards

A. Foreign-Country Judgments

B. Sister-State Judgments

C. Foreign Arbitral Awards

 

 

 

 

Conflict of Laws Panel at the AALS Conference in New Orleans, Jan 4, 2019

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The American Association of Law Schools will hold its annual conference in New Orleans this year, from January 2-6. In this conference, the meeting of the Conflict of Laws Interest Group will be on Friday January 4, 8:30-10:15. (Yes, early.) The topic is the new Hague Judgments Convention (the draft Convention is here.) Speakers will include Louise Ellen Teitz (Rhode Island University) with a view from the Hague, Trey Childress (Pepperdine/State Dept) with a view from the State Department, and John Coyle (UNC) with a view from academia. I will chair. The remarks will be published later in the Duke Journal of Comparative and International Law, but if you are at the AALS Conference, please do come and discuss there!

Luxemburg, 22 January 2019: Conference on Third-Party Effects of Assignments of Claims

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On 22 January 2019, the Arendt House (Luxembourg) will host a conference organised by The Luxembourg Association of Law Graudates of the University of Louvain (UCL) and the Law Review Le droit des affaires – Het ondernemingsrecht (DAOR) on the Proposal for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims.

The conference will be chaired by Prof. Marie-Elodie Angel (University Paris Est Créteil, UPEC). Speakers, who will discuss assignment of claims, security rights and securitisation, include Prof. Denis Philippe (Philippe & Partners; University of Louvai), Grégory Minne (Arendt & Medernach; University of Luxembourg) and Jean-Paul Spang (Kleyr Grasso; University of Luxembourg).

The conference will be in French without translation into English.

Details are available here.

Draft Guide to Good Practice on the Use of Video-Link under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters is available on the HCCH website

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The Draft Guide to Good Practice on the Use of Video-Link under the Evidence Convention has been submitted for the approval of the HCCH governance body (i.e. the Council on General Affairs and Policy of the Hague Conference on Private International Law), which will meet in March 2019.

This Guide analyses developments in relation to the use of video-link in the taking of evidence under the Evidence Convention, including references to internal law and other international agreements. It also outlines good practices to be followed and reflects additional information provided by Contracting Parties in their respective Country Profiles.

In my personal opinion, the most striking conclusion was that responding States to the Country Profiles are almost evenly divided as to whether evidence may be taken directly by video-link by means of a Letter of Request (under Chapter I of the Evidence Convention). In other words, there is no clear consensus on whether the requesting court can take evidence directly in the Requested State by video-link under Chapter I of the Evidence Convention (e.g. take testimony from a witness by videoconference). Some see legal obstacles whereas others do not. The Convention was after all negotiated in the late sixties. A question may arise as to whether an international treaty is needed to address particularly this issue and include the necessary safeguards for video-link taking of evidence.

Ontario Court Holds Law of Bangladesh Applies to Rana Plaza Collapse Claim

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The Court of Appeal for Ontario has upheld a decision of the Superior Court of Justice dismissing a $2 billion claim against Loblaws relating to the 2013 collapse of the Rana Plaza building in Savar, Bangladesh.  In Das v George Weston Limited, 2018 ONCA 1053 (available here) the court concluded that the claims were governed by the law of Bangladesh (not Ontario).  It went on to conclude that most of the claims were statute barred under the Bangladeshi limitation period and that it was “plain and obvious” that the remaining claims would fail under Bangladeshi tort law.

Unlike some of the recent cases in this area, this was not a case about a Canadian parent corporation and the operations of its own foreign subsidiary.  It was a case about a contractual supply relationship.  Loblaws bought clothes (to sell in its Canadian retail stores) from corporations whose workers manufactured the clothes in Rana Plaza.

The key conflict of laws point was the choice of law issue.  The rule in Ontario is that tort claims are governed by the law of the place of the tort: Tolofson v Jensen, [1994] 3 SCR 1022.  The plaintiffs had argued that they were suing Loblaws for negligent conduct that exposed those working in Rana Plaza to harm.  They argued that Loblaws had, by adopting corporate social responsibility policies and hiring Bureau Veritas to conduct periodic “social audits” of the workplace, assumed a degree of responsibility for the safety of the workplace in Bangladesh (para 20).  They argued that the key steps and decisions by Loblaws took place in Ontario rather than in Bangladesh and therefore Ontario was the place of the tort (para 80).  The court rejected these arguments.  It held that the place where the alleged wrongful activity occurred was Bangladesh (para 85), that the alleged duty was owed to people in Bangladesh (para 87) and that the injury suffered in Bangladesh “crystallized the alleged wrong” (para 90).

The court also refused to apply Tolofson‘s narrow exception to the place of the tort rule.  One reason the plaintiffs raised for triggering the exception was the lack of punitive damages under the law of Bangladesh.  The court noted that the lower court’s decision had suggested such damages might actually be available under that law, but in any case “the absence of the availability of punitive damages is not the type of issue that offends Canadian fundamental values” (para 95).  The court raised no basis on which to disagree with this analysis.

Because the applicable law was that of Bangladesh, and because some of the claims were not statute-barred, the court was required to do a detailed analysis of Bangladeshi tort law on the duty of care issue in order to determine whether those claims were to be dismissed as not viable.  This aspect of the decision may be the most disquieting, since there was little if any on-point authority in the Bangladeshi jurisprudence (para 130).  The court had to rely on experts who were relying on a considerable volume of Indian and English cases and then debating the extent to which these would impact the issue if determined by a Bangladeshi court.  Ultimately the court concluded that under Bangladeshi law the claims could not succeed.

Grand Chamber judgment: case of Molla Sali v. Greece (application no. 20452/14)

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In a much anticipated outcome, the Grand Chamber of the European Court of Human Rights held unanimously that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, read in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention.

The case concerned the application by the domestic courts of Islamic religious law (Sharia) to an inheritance dispute between Greek nationals belonging to the Muslim minority, contrary to the will of the testator (a Greek belonging to the Muslim minority, Ms Molla Sali’s deceased husband), who had bequeathed his whole estate to his wife under a will drawn up in accordance with Greek civil law.

The full text of the decision may be found here. 

The press release of the Court is available here.

For the recent amendments in pertinent Greek legislation, see here.

 

Conclusions of the EC-HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults are now available

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The conclusions of the EC-HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults are now available here.

See also related post by Pietro Franzina here.

 

Diplomat Lawyer (Secretary) Vacancy at the Permanent Bureau of the HCCH

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The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking to fill a Diplomat Lawyer (Secretary) position. The deadline for applications is 31 December 2018 (12.00 a.m. CET). For more information, click here.

Given diversity of geographic representation and of legal expertise requirements as set out in the HCCH Statute, candidates should preferably not have (exclusively) Swiss, Canadian, Italian, Portuguese, or Singaporean nationality. Currently, there are Diplomat Lawyers of those nationalities at the HCCH.

As announced, “[t]he main priorities for this position currently include the ongoing parentage/surrogacy project and the work relating to the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. This said, the successful candidate will be expected to work on any other project or file that the work programme of the HCCH and related resource allocation may require (be it in relation to post-Convention services or the development of legislative projects).”

IAFL European Chapter Young Lawyers Award 2019

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Approximately eight years ago, the European Chapter of the International Academy of Family Lawyers (“IAFL”) established a writing award for young family lawyers to be awarded on an annual basis. The award aims to promote research and excellence among young family lawyers and to increase awareness among other legal professionals of the work and objectives of the IAFL. The Young Lawyers Award carries a prize of €1,000, awarded to the author of the winning contribution, and two €500 prizes for the best runners up. For more information, please click here.

No fake news: the Netherlands Commercial Court proposal approved!

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By Georgia Antonopoulou, Erlis Themeli, and Xandra Kramer, Erasmus University Rotterdam (PhD candidate, postdoc researcher, and PI ERC consolidator project Building EU Civil Justice)

Today, the Dutch Senate (Eerste Kamer) finally voted in favour of the legislative proposal for the establishment of the Netherlands Commercial Court (NCC) (see here). As of 11 December 2018, the Netherlands is added to the countries  that have created an English language court or chamber specialized in international commercial disputes, including Singapore and France.

The proposal was already approved by the House of Representatives (Tweede Kamer) on 8 March 2018 (see our previous blogpost). Shortly after, we optimistically reported that the bill was scheduled for rubber-stamping by the Senate on 27 March 2018, making it realistic that the NCC would open its doors on 1 July 2018. However, not all senators were convinced by the need for and the modalities of the NCC proposal and it led to heated debates.

The discussions geared primarily around the cost-effective court fees and the fear for a two-tiered justice system (see Report of the meeting of 4 December 2018). The court fees are much higher than in other cases: 15.000 Euros in first instance and 20.000 Euros for appeal proceedings at the NCCA. It was argued that the cost-covering nature of the NCC fees is at odds with the current Dutch court fee system and that it may create and obstacle for small and medium-sized businesses to access the NCC. In response to these objections, the Dutch Minister of Justice and Security emphasized the importance of the NCC for the Netherlands as a trade country, the high quality of the Dutch civil justice system that was nevertheless unattractive due to the Dutch language, and pointed to the  establishment of similar courts in other countries. He underlined that the NCC is only available in cross-border cases, that it offers an additional forum that parties can choose while the ordinary courts are still available, and that the court fees are relatively low compared to arbitration or to the fees for commercial courts in several other countries, including the London Commercial Court.

Information on the NCC, a presentation of the court – a chamber of the Amsterdam District Court – and the Rules of Procedure are available on the website of the Dutch judiciary.

The Minister of Justice and Security will issue a decree soon announcing the date of entry into force of the NCC legislation, but in any case the NCC will open its doors early 2019.