Edited by Delphine Porcheron, Mélanie Schmitt and Juliette Lelieur

The University of Strasbourg is organizing workshop series on the protection of Human Rights in transnational situations. The research is conducted in criminal law, labour law, and private international law. After the first meeting which took place last January with the presence of Horatia Muir Watt, Dominique Ritleng and Patrick Wachsmann, the second one will be held in Strasbourg on June 5, focusing on civil and environmental liabilities and private international law.

Speakers include :

• Bénédicte Girard, University of Strasbourg
• Marie-Pierre Camproux, University of Strasbourg
• Pauline Abadie, University of Paris Sud
• Fabien Marchadier, University of Poitiers
• Patrick Kinsch, University of Luxembourg, Attorney at law Luxembourg
• Louis d’Avout, University of Paris II
• Jean-Sylvestre Bergé, University of Lyon III
• Caroline Kleiner, University of Strasbourg

For more information click here.

David Restrepo Amariles (HEC Paris), Eva Mouial Bassilana (Université Côte d’Azur) and Matteo Winkler (HEC Paris) have posted on SSRN an article titled The Impact of the French Doctrine of Significant Imbalance on International Business Transactions. The paper is forthcoming on the Journal of Business Law.

The abstract reads as follows.

This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1 October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy v Expedia, Inc (2015) had qualified SI as an “overriding mandatory provision” (“loi de police”) under Regulation 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting the French legislator’s disapproval of SI allocates great power to French courts and the French Government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared with those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case law throughout the years, will give rise to uncertainty in international business transactions and may eventually disadvantage France in the global competition in such a field.

Thanks to Héloïse Meur, Lilia Aït Ahmed and Estelle Gallant for this post.

On June 21, 2018 a full-day colloquium will take place in Paris on the protection of unaccompanied minors at the former Courthouse. The colloquium will see the participation of prestigious speakers from institutions dealing with the issue of unaccompanied minors :

The speakers will discuss the root causes of the migration flows of unaccompanied minors, the limits of their treatment by French authorities, the difficulties to coordinate with other EU member States, and envisage the possible room for improvements, notably vis-à-vis what is done abroad, and especially in Belgium.

The program is available here. For registration send an email to colloquemna@gmail.com.

The School of Law of the University of Bologna is organizing the III Edition of the Summer School on European and Comparative Environmental Law, to be held in Ravenna, July 9-13, 2018. Read more

The 2017 Hague Lecture of Prof. Burkhard Hess, just published in the Recueil des Cours, addresses dispute resolution in international cases from the classical perspective of the private-public divide. This distinction is known in almost all legal systems of the world, and it operates in both domestic and in international settings. The main focus of the Lecture relates to overlapping remedies available under private international and public international law; it maps out the growing landscape of modern dispute resolution, where a multitude of courts and arbitral tribunals operating at different levels (domestic, international and transnational) is accessible to litigants in cross-border settings. Today, a comprehensive study of these developments is still missing. This Lecture does not aim to provide the whole picture, but focusses instead on some basic structures, revealing three main areas where the distinction between private and public disputes remains applicable today:

First, the divide delimitates the jurisdiction of domestic courts in cases against foreign states and international organisations (immunities); it equally limits the possibilities of foreign and international public entities to enforce public law claims in cross-border settings. As a matter of principle, public law claims cannot be brought before civil domestic courts of other states. However, this rule has been challenged by recent developments, especially by the private enforcement of (public) claims and by the cross-border cooperation of public authorities. Moreover, the protection of human rights and the implementation of the rule of law in cross-border constellations entail a growing need for a judicial control of acta iure imperii – even if only by the courts of the defendant state.

The second area of application of the divide relates to the delineation between domestic and international remedies. In this field, the distinction has lost much of its previous significance because nowadays individual commercial actors may bring their claims directly (often assisted by experienced actors like litigation funders) before international arbitral tribunals, claims commissions and human rights courts. In this area of law, individuals’ access to international dispute resolution mechanisms has been considerably reinforced. Here, Prof. Hess argues that it would be misleading to qualify parts of the current dispute resolution system as purely “commercial” and other parts as purely “public or administrative”. There are revolving doors between the systems and the same procedures are often applied; what really matters is the proper delineation of  different remedies which functionally protect the same interests and rights.

The third area relates to the privatization of dispute settlement, especially in the context of private ordering. At present, powerful stakeholders often regulate their activities vis à vis third parties (including public actors) by globalized standard terms. Pertinent examples in this respect are financial law (i.e. ISDA), the organization of the internet (i.e. ICANN) and sports law (i.e. CAS). In this context, there is a considerable danger that the privatization of law-making and of the corresponding dispute settlement schemes does not sufficiently respect general interests and the rights of third parties. A residual judicial control by independent (state) courts is therefore needed. Data protection in cyberspace is an interesting example where the European Union and other state actors are regaining control in order to protect the interests of affected individuals.

Finally, the Lecture argues that the private-public divide still exists today and – contrary to some scholarly opinions – cannot be given up. At the same time, one must be aware that private and public international law have complementary functions in order to address adequately the multitude of disputes at both the cross-border and the international level. In this context the private-public divide should be understood as an appropriate tool to explain the complementarity of private and public international law in the modern multilevel legal structure of a globalized world.

The Lecture has been published in vol. 388 of the Recueil, pg. 49-266. A pocket book will be available in the coming months.