Call for papers: ‘International Investment and Trade Agreements: Recent Developments and Problems’

Dear all,
We would like to inform you that an international conference on ‘International Investment and Trade Agreements: Recent Developments and Problems’ is going to be held in Istanbul, Turkey on 25 October 2018. The conference will be jointly organized by Marmara University Faculty of Law and Economic Development Foundation (IKV).
The main goal of the conference is to discuss the recent developments in the field of international investment and trade law. In this regard, it is possible to submit papers regarding various issues such as international investment agreements, international trade agreements, current legal developments regarding the World Trade Organization (WTO), trade quotas and non-tariff barriers, new generation free trade agreements, the trade policy of the European Union and its effects on national laws.
We invite our colleagues wishing to present a paper in this conference to send their abstracts to our email address ikvinvestment2018@gmail.com. We kindly request that the abstracts include the name of the study as well as the name, title, workplace and contact information of the author and consist of 300 to 500 words.
Please note that the deadline for the submission of abstracts is 1 September 2018.
For further information, please see the conference website: http://etkinlik.marmara.edu.tr/en/uluslararasiyatirim
We are looking forward to hosting you in Istanbul.

Call for papers: ‘Contractual Issues in Private International Law’

Dear all,
We would like to inform you that an international conference on ‘Contractual Issues in Private International Law’ is going to be held in Istanbul, Turkey on 11 October 2018 by Marmara University Faculty of Law.
The main goal of the conference is to study and discuss contractual matters in international legal practice within the context of private international law discipline. In this regard, it is possible to submit papers regarding various issues such as applicable law to international commercial contracts, jurisdiction agreements, international commercial arbitration, contract-related matters in international family law, contracts of carriage in private international law and party autonomy in private international law.
We invite our colleagues wishing to present a paper in this conference to send their abstracts to our email address pilcontracts2018@yahoo.com. We kindly request that the abstracts include the name of the study as well as the name, title, workplace and contact information of the author and consist of 300 to 500 words.
Please note that the deadline for the submission of abstracts is 20 August 2018.
For further information, please see the conference website: http://etkinlik.marmara.edu.tr/en/contractsinpil
We are looking forward to hosting you in Istanbul.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 4/2018: Abstracts

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

A. Dickinson: Tough Assignments: the European Commission’s Proposal on the Law Applicable to the Third-Party Effects of Assignments of Claims

In March 2018, the European Commission published its long awaited Proposal on the law applicable to the third-party effects of assignments of claims. The proposal aims to fill the gap left in EU private international law following the adoption of the Rome I Regulation, when it was not possible to reach a settlement of this difficult and controversial issue. It is a welcome, and overdue, step. This article seeks to address two aspects of the Commission Proposal, which give rise to issues of some complexity. The first point involves questions of characterisation, and the second questions concerning the definition of the connecting factor. Unfortunately, neither the Proposal nor the accompanying Impact Assessment provide a clear indication as to the Commission’s drafting intentions with respect to these questions.

M. Gebauer: The German-Turkish bilateral succession treaty in the wake of developments in European private international law

The EU Succession Regulation, in terms of Art. 75 (1), afforded priority to those existing treaties concerning international succession already entered into by one or more EU member states. This provision has been particularly relevant for Germany in so far as the long-standing German-Turkish bilateral succession treaty of 1929 is concerned. The treaty’s choice of law rules differ starkly from those found in the EU Succession Regulation. The article primarily considers the interplay between the EU Succession Regulation and the German-Turkish bilateral succession treaty. Despite the treaty appearing, on the face of it, to have continuing relevance in cases with Turkish elements, the article demonstrates that the EU Succession Regulation’s choice of law rules will nonetheless often be applicable in Germany, and in important situations. The reason for this is that the scope of the German-Turkish bilateral succession treaty is limited. The problem is particularly acute in so far as the interplay between matrimonial property law and succession law is concerned, both in terms of German-Turkish couples and dual nationals. In light of this background, the article questions whether the treaty’s continued existence can be justified.

B. Hess: Abgrenzung der acta iure gestionis und acta iure imperii: Der BGH verfehlt die völkerrechtliche Dimension der Staatenimmunität

This article reviews a recent German decision on state immunity. In this judgment, the Bundesgerichtshof delineated acta iure gestionis from acta iure imperii according to the lex fori. Although the judgment follows a longlasting line of reasoning in German case law, the article demonstrates that international law has developed more sophisticated criteria. These are found in the UN Convention on State Immunity of 2004. Although the convention has not yet entered into force, it is of great importance as it has the ambition to codify and clarify the state of customary international law. Unfortunately, the Bundesgerichtshof mainly refers to a decision of the German Constitutional Court of 1963 which today seems to be outdated. Furthermore, the Bundesgerichtshof does not sufficiently consider the case-law of foreign and international courts which consider state loans as acta iure gestionis – even in the case of subsequent state intervention. All in all, a more international and comparative approach is needed to comprehensively assess the modern state of customary international law.

P. Mankowski: Orthodoxy and heresy with regard to exclusive jurisdiction for registered IP rights and ownership claims

All quiet on the Luxembourgian front: Ownership claims regarding trademarks are not subject to exclusive jurisdiction under Art. 24 No. 4 Brussels Ibis Regulation, following the footsteps of Duijnstee ./. Goderbauer of 1983 on ownership claims regarding patents. Yet closer scrutiny reveals that some parts of the underlying fundament have changed since GAT ./. LuK and its legislative offspring. Even a surprise candidate might enter the ring: namely Art. 24 No. 3 Brussels Ibis Regulation, hitherto rather not in the spotlight, but worth to be reconsidered and reconstrued heretically, taking into account Art. 1 (1) Brussels Ibis Regulation.

D. Looschelders: Jurisdiction for Actions Brought by the Injured Party Against Compensation Bodies and Green Card Bureaus Located in Foreign States

Since the ECJ judgment in the Odenbreit case, it has been acknowledged that according to the Brussels I Regulation, the injured party can assert its direct claim against the insurer of the injuring party before the court of jurisdiction of his own residence. In the event of traffic accidents that display a cross-border element, the injured party may also approach the compensation body in his country of residence established in accordance with the Motor Insurance Directive or the Bureau in the accident state according to the Green Card System. Against the background of a decision of the Regional Court of Darmstadt, the article deals with the question of whether the injured party can also sue a compensation body or a Green Card Bureau located in a foreign state at its own place of residence according to the Brussels I Regulation, answering it in the negative.

V. Pickenpack/A.-G. Zimmermann: Translation requirements for the service of judicial documents to legal entities

According to Art. 8 (1) lit. a of the Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13/11/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, the addressee has a right to refuse the acceptance of judicial documents in case that the document is not drafted in a language which the addressee understands. However, the Regulation does not itself stipulate who the authorized addressee is. In particular, in case of service to legal entities and companies the question arises whose linguistic knowledge is decisive. It is also unregulated whether the addressee of the document is allowed to decide for himself whether he has appropriate language skills or that this has to be decided by the court on the basis of indications. The District Court of Berlin-Mitte has – in its decision of 8/3/2017 – recently dealt with the right to refuse acceptance of judicial documents under Art. 8 (1) lit. a Council Regulation (EC) No 1348/2000 in case of service to legal entities. The Court has assessed the right of the Irish-based Facebook Ireland Limited to refuse acceptance of the service on the basis of objective criteria and based on the actual language skills of its legally trained employees. The Court applied the criteria in a convincing manner. However, a more specific legal framework would nevertheless be favorable as this would avoid existing uncertainties in the application of the rules for the serving party especially in case of service to legal entities. Unnecessary translations as well as time and costs incurred would become redundant.

A. Staudinger/S. Friesen: International jurisdiction and applicable law concerning a road traffic accident abroad with debtors from several countries

The article at hand deals with the judgement of the Higher Regional Court Brandenburg of 18/2/2016 (reference number: 12 U 118/15). The ruling refers to a traffic accident abroad. Apart from the place of general jurisdiction (Art. 2 [1] Brussels I Regulation) the court discussed the option of a coherence action (Art. 6 No. 1 Brussels I Regulation) as well as of a direct claim (Art. 11 [2] in conjunction with Art. 9 [1] lit. b Brussels I Regulation). Moreover, the issue of the scope of the consumer protection jurisdiction (Art. 16 [2] in conjunction with 15 [1] lit. c Brussels I Regulation) was raised. In addition, the article illustrates the advantages of the supranational jurisdictional regime in cases where the damaged party claims directly against the liability insurer.

Even though the ruling refers to the legal situation before the unification of international tort law by the Rome II Regulation. The points made by the court of appeal can be cautiously transferred on this act of law. In particular, the case demonstrates that not all claims of a damaged party against different drivers and vehicle owners are necessarily governed by a uniform national tort law even if the damage is caused by a single accident.

Y. Diehl: Transnational Skiing Accidents in Private International Law

The present article criticizes the higher regional Court (Oberlandesgericht) Munich’s decision regarding the interpretation and use of the so-called FIS rules for conduct. The court had to deal with an accident of two German citizens in the Austrian alps. German law was applicable. Art. 17 Rome II states independently that rules of safety and conduct at the place of conduct must be taken into account. Therefore, the court based its decision on rule 3 of the FIS rules for conduct presuming local Austrian law to appeal the FIS rules. Besides the complicated methodical problems arising by the need to take the rules and norms into account, Art. 17 Rome II harbors difficulties in defining the scope of the term “rules of safety and conduct”. According to some scholars this term should be interpreted in a very broad way, including “private” or even non-binding norms. Therefore, most of the authors plead for the possibility of taking into account the FIS rules in transnational Skiing-accidents under Art. 17 Rome II. As it is debatable whether the FIS rules are binding at all, the article at hand first defines the legal nature of those rules by investigating different possibilities in national law. The author’s conclusion that there is not a binding character of the FIS rules at all subsequently raises the question whether they can fit in the scope of Art. 17 Rome II after all. According to the author, there is neither a possibility nor a need for private international law to take into account the FIS rules. Therefore, national law applies. The national tort law systems provide a general clause for judging tortfeasor’s behavior and conduct. Accordingly the FIS rules therefore function as aid in interpretation.

S.L. Gössl: A further piece in the mosaic regarding the recognition of a status acquired abroad or: under which circumstances is a name “legally acquired”?

In “Freitag” the CJEU again had to deal with the question whether and under what condition a name acquired in a Member State has to be recognised in another Member State. The decision clarifies one question in the ongoing debate: only “legally acquired” names have to be recognised. Whether a name has been “legally acquired” has to be determined via a referral en bloc to the law of the country in which the name potentially has been acquired. Furthermore, the Court hints indirectly at an exception of such an obligation to recognize, i.e. in the case of circumvention of law when there is no connection to the original Member State at all.

M. Andrae/U. Ising: Modalities of choice of law under Art. 10 (2) EGBGB

Under Art. 10 (2) EGBGB (Introductory Act to the Civil Code) the spouses may choose the law applicable to their married name. By their choice, the parties can determine 1. the law of the country which one of the spouses is a national of or 2. German law given one of them has their habitual residence in Germany. Requirements as to time and proper form of their choice are specified by law. In addition, the choice of law shall be declared to the Registrar’s Office (Standesamt). The law does not lay out any additional details. This problem led to two decisions by the Kammergericht and the Oberlandesgericht (Higher Regional Court) Nürnberg dealing with the legitimacy and the requirements for a tacit choice of law, the law applicable to its validity, contractual annulment or change ex nunc and its voidability by the spouses. This review focuses on these problems.

C. Thole: Art. 16 EIR 2017 (Art. 13 EIR 2002) between lex causae and lex fori concursus

In its judgment, the ECJ strengthens the procedural autonomy of the Member States in the context of the objection to an avoidance claim pursuant to Art. 16 EIR 2017 (Art. 13 EIR 2002). The Court decided on the applicability of Art. 3 para. 3 Rome I Regulation with respect to determining the applicable law (lex causae) and thus whether a choice of law clause may be validly relied upon if any other elements relevant to the situation in question are not located in the state whose law is chosen. Christoph Thole finds the judgment to be only partly convincing.

A. Piekenbrock: The treatment of assets situated abroad in local insolvency proceedings

The paper deals with two recent decisions delivered by the German Federal Court of Justice (BGH) regarding the treatment of assets situated abroad in insolvency proceedings opened in Germany. The Court has correctly stated that notwithstanding Art. 7 EIR 2015 the debtor’s rights in rem regarding real estate situated in another Member State are governed by the lex rei sitae. As far as pensions in Switzerland are concerned, the Court has correctly come to the conclusion that the question whether or not the claim is attachable and thus part of the debtor’s insolvency estate has to be answered in accordance with the lex fori concursus. Unfortunately, the Court has only applied German conflict law. Yet, the preliminary question to answer would have been whether or not Art. 7 EIR also applies in cases concerning third countries such as Switzerland. That question should have been referred to the E.C.J.

H. Wais: Compatibility of damages for willful litigation under Italian law with the German ordre public

Pursuant to Art. 91 (3) c.p.c. (Italy), a party who unjustifiably files a claim or unjustifiably defends himself can, under certain conditions, be ordered to pay to the other party a certain sum the amount of which is established by the court. In a case litigated before the courts of Milan the claimant was ordered to pay the defendant € 15.000 on the basis of the aforementioned provision. The defendant subsequently sought recognition and enforcement of the judgment in Germany. The claimant argued that the judgment was against the German ordre public since Art. 91 (3) c.p.c. provided for punitive damages and deterred the parties from seeking judicial relief. The Bundesgerichtshof, however, rightly held that the judgment was compatible with the German ordre public.

P. Franzina/E. Jayme: The International Protection of Reproduction Rights Claimed by Museums Over their Works of Art: Remarks on the Decision Given by the Tribunal of Florence on 26/10/2017 in the ‘David’ Case

The law of some countries, like Italy, explicitly grants museums and other cultural institutions exclusive reproduction rights over works of art exhibited or stored therein. In 2017, at the request of the Italian Ministry for Culture and Heritage, the Tribunal of Florence issued an injunction prohibiting a travel agency based in Italy from further using “in Italy and in the rest of Europe” an unauthorised reproduction of the “David”, a statue by Michelangelo, which the agency had included in its website and in advertising material distributed in Italy and abroad. The paper discusses the issues surrounding the protection of reproduction rights in cross-border cases under the Rome II Regulation. It also hints at the advantages that the adoption of harmonised substantive standards at EU level regarding the exploitation of these rights would entail for the effective protection of cultural heritage, while giving due account to competing rights, such as the so-called freedom of panorama, i.e., the right to take and reproduce pictures of works of art located in, or visible from, a public place.

O.L. Knöfel: Cross-Border Online Defamation Claims Cases in Austrian Civil Procedure: The Austrian Supreme Court on the Autocomplete Function of Search Engines

The article reviews a decision of the Supreme Court of the Republic of Austria (Case 6 Ob 26/16s), dealing with questions of cross-border litigation raised by the autocomplete function of a search engine. The mere accessibility of a website normally does not suffice for conferring international jurisdiction on any State’s courts. But in the case at hand, the Supreme Court applied domestic Austrian rules on jurisdiction, namely sec. 83c Jurisdiktionsnorm (JN). If an online statement brought about by a search engine is considered defamatory, Austrian Courts are said to gain jurisdiction to entertain lawsuits against the alleged perpetrator, simply by assuming that a tort was committed in Austria. What the Supreme Court’s decision boils down to is that Austrian procedural law opens an exorbitant head of jurisdiction. The Supreme Court also held that Austrian substantive law applied. The author analyses the relevant issues of Austrian law and explores the decision’s relation to international case-law on the autocomplete feature of search engines.

L. Hübner: Substitution in French Mortgage Law

The following article deals with the requirements of the substitution in French and German PIL. In the specific judgment, the Cour de cassation applies the method of équivalence. The ruling concerns the substitution of a French notary by an Australian notary public as regards the authorisation to create a mortgage (Hypothek) by formal act. This case offers the opportunity to sketch not only the PIL solution in the French and German legal order but also solutions provided by each substantive law.

H. Odendahl: New international regulations on conflict of law and their impact in the field of family and inheritance law in relation to Turkey

At the international level, a number of new regulations have entered into force over the past six years, relating – inter alia – to the conflicts of law provisions regarding divorce, custody, alimony, matrimonial property and inheritance law. Even to the extent Turkey is not directly bound by such regulations, they have an effect on Turkey and Turkish nationals – in particularly in the context of substantive law provisions providing for choice of law rules. Any migration event, in one direction or the other, may trigger an assessment of the effects due to such statutory changes.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 3/2018: Abstracts

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

M. Andrae: The Scope of Application of the Regulation (EU) 2016/1103

The Regulation (EU) 2016/1103 will be the central European legal instrument governing matters of matrimonial property regimes having cross-border implications. This includes any property relationships, between the spouses and in their relations with third parties resulting directly from the matrimonial relationship, or the dissolution thereof. From this it follows a broad objective scope of application. Excluded from the scope the Regulation (EU) 2016/1103 are inter alia: the succession to the estate of a deceased spouse and the nature of rights in rem relating to a property. This contribution discusses which typical legal relationships are covered by the regulation and which are precluded. Particular attention is given to: the responsibility of one spouse for liabilities and debts of the other spouse, the powers, rights and obligations of either or both spouses with regard to property, gratuitously allowance between spouses, undisclosed partnerships between spouses, employment contracts between spouses, the allocation of matrimonial home in case of separation, the distinctness of a matrimonial property agreement and a contract of inheritance as well as the relationship between the legal system of marriage property and the numerus clausus of rights in rem known in the national law of the Member States. The Regulation (EU) 650/2012 should be applied in the case, if the inheritance of the surviving spouse increases by a quarter under Art. 1371 para. 1 German Civil Code (BGB).

E. Jayme: Reform of Tort Law in Germany (2017): compensation of dependent survivors of dead persons for pain and suffering: problems of jurisdiction and conflict of laws

The German legislator has introduced, recently, the right of the surviving dependents of a person who has been killed, e.g. in a car accident, to ask for compensation for pain and suffering. The article deals with the rules concerning jurisdiction and the applicable law in international cases such as car accidents abroad, when the survivors live in a foreign country. In addition, solutions are proposed for the question, how the personal relation are to be determined, when the person killed and his or her survivors live in a foreign country.

P. Mankowski: Liability insurance, direct action, forum actoris: no deviating by jurisdiction clause in the insurance contract

Liability insurance and direct claims are everyday appearances in European private international law and international procedural law. Odenbreit has awarded the injured party with a forum actoris. Now, and consequentially, Assens Havn supplements this with protection against derogation to the injured party’s detriment: The injured party is rightly held not to be bound by a derogating urisdiction agreement in the insurance contract between the policyholder (i.e. the tortfeasor in relation to the injured party) and his insurer.

D. Coester-Waltjen: Opportunity missed: The CJEU and private divorces

This article comments on the decision of CJEU in the case of Sahyouni ./. Mamisch (C-372/16). The CJEU accepted jurisdiction because the applicability and interpretation of the Rome III-Reg. (No. 1259/2010) was at issue. However, the Court following the advice of the Advocate General decided that a private divorce does not fall within the scope of the Rome III-Reg. Consequently, the court was not concerned with the interpretation of Art. 10 Rome III-Reg. in cases where the applicable divorce law provides different rules based on gender. The Advocate General had recommended the non-application of all rules which are not gender-neutral irrespective of the fact whether the result in the case at hand was or would be discriminatory or not. This article analyses critically the reasoning of the Court and the Advocate General, especially the lack of any differentiation between the different kinds of private divorces and the emphasis put on the applicability of the Brussels IIbis-Reg. (No. 2201/2003). The author expresses regret over the interpretation of Art. 10 by the Advocate General.

M. Andrae: Petition for divorce of marriage before a sharia court in Lebanon and Germany

According to s. 109 of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (Familienverfahrensgesetz, FamFG) German courts will recognize a decree of divorce of marriage given by sharia courts abroad. Therefore, a pending petition for divorce before such a court will be recognized as well. The Higher Regional Court of Hamm (Oberlandesgericht Hamm) had to decide in this matter. Traditionally, lis pendens of litigation in familiy matters in a third State is an obstacle to the decision of a German court given the following premises: The parties and the subject matter of proceedings are identical, the foreign court was seized first and the foreign court is expected to give a decision capable of recognition within reasonable time. The OLG Hamm does not comply with this established body of case law. Instead, it is guided by Art. 29 (EC) Regulation No 44/2001 and Art. 27 Lugano Convention, respectively. Drawing on the ECJ’s doctrine in Gubisch (1987) it does not take into account whether the foreign decision is expected to be capable of recognition. The article critically analyzes this ruling.

S. Korch/M. Konstantin: From Freedom of Establishment to Free Choice of Corporate Form – The Implications of Polbud

The ECJ judgment in Polbud is a landmark decision in international corporate law. Summarizing, the ECJ no longer focuses on protecting the free establishment (of corporations) but instead embraces the idea of allowing European corporations to freely choose a corporate form from any EU Member State’s legislation. This switch confronts the national legal systems with a wide range of challenges, especially with regard to the protection of creditors, transformation law, and employee co-determination. The analysis in this paper reveals that the relevant German statutes do not adequately cover these challenges.

C. Thomale: The “Centre of Main Interests” in international corporate insolvency proceedings

The Landgericht Berlin has used the Niki insolvency proceedings, which have been attracting wide public attention, for a deep discussion of the criterion “Centre of main interest” as contained in the European Regulation on Insolvency Proceedings. This case note carefully evaluates the decision and tries to highlight possible venues for legal reform.

E. Jayme/C.F. Nordmeier: Greek Muslims in Thrace: dépeçage and new opt-in-requirement in family and inheritance

In the northern Greek region of Thrace, Greek citizens enjoy a special status in family and inheritance law. The Greek law 1920/1991 of 24 December 1990 regulates the jurisdiction of the Mufti and thus the application of Islamic law in the execution of international treaties after the end of the Greek-Turkish war. The provisions of Law 1920/1991 have been significantly amended by Law 4511/2018 of 15 January 2018. The focus is on the need to agree on the mufti’s jurisdiction in family matters. In the absence of an agreement, the state courts have sole competency. In matters of succession, the testator must have opted for the application of Islamic law. The present article presents the new rules in greater detail and examines their effects in European international private and procedural law. In addition, the question of what impact they have on the practice of German family and probate courts is examined.

F. Heindler: The right of direct action in international road accidents

The annotated judgement focuses on the scope of application of Art. 9 Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents. The Austrian Surpreme Court in Civil and Criminal Matters (Oberster Gerichtshof) has ruled that the law applicable under Art. 9 does not oust the law applicable to the insurance contract in relation to the extent of the insurer’s liability. In contrast, Art. 9 merely determines whether a claim can be brought directly against the insurer. By way of obiter dictum, the Oberster Gerichtshof suggested that it would adopt the same position when applying Art. 18 Rome II which was not applicable in the current case since the Convention has priority in accordance with Art. 28 s. 1 Rome II and the EU Member States’ international law obligations.

M. Komuczky: Dogmatic Assessment of Surrogacies undertaken abroad in Austria

The article discusses the family law consequences of surrogacy conducted abroad from an Austrian perspective. This question is discussed in the light of the ECtHR’s jurisprudence. If a court order was rendered in the state where surrogacy was performed, this decision may be capable of being recognized in Austria, provided that the child obtained the citizenship of the other state. In all other cases, a conflict of law analysis according to the principle of the strongest connection is necessary, as §§ 21, 21 autIPRG only apply to naturally conceived children. It is of pivotal importance that the child maintains effective family relationships. Only in exceptional cases, Austrian public policy may be invoked.

D.B. Adler: Post Daimler: Foreign companies still run the risk to be subject to U.S. general jurisdiction throughout the US.

In Daimler AG v. Bauman, the U.S. Supreme Court overturned nearly seventy years of law on general jurisdiction. According to Daimler, the general jurisdiction inquiry is no longer whether a foreign corporation’s in-forum contacts can be said to be in some sense continuous and systematic, but rather whether that corporation’s affiliation with the forum is so continuous and systematic as to render it essentially at home in the forum. Except in rare situations, general jurisdiction henceforth should be proper over a corporation only in the corporation’s state of incorporation or principal place of business. This article proceeds in three main sections. Part one provides a brief analysis of the Daimler decision, including a critique on both its shortcomings and the court’s rationale. Part two focuses on the post-Daimler developments highlighting three points. First, the article evaluates how lower courts throughout the US have adapted to the newly developed “at home” standard. Second, it shows how litigants are more often than not successful at circumventing Daimler’s “at home” test by reviving century-old cases in order to establish general jurisdiction on a “consent-by-registration” theory. According to this theory, foreign corporations consent to general jurisdiction when they register to do business in states outside their place of incorporation or principal place of business. The author critically assesses this theory and its effects on foreign companies and banks in the context of Daimler’s rationale and questions its validity as a basis for general jurisdiction. He then evaluates a recent New York State legislative initiative, which attempts to further “clarify” Daimler and to strengthen the validity and foundation of the “consent-by-registration” theory. Part three summarizes the findings.

A. Anthimos: The application of the Rome I Regulation in Greece

The present article serves as an inventory of published and unpublished case law in regards to the application of Rome I Regulation in Greece. It focuses solely on provisions, which were examined and interpreted by domestic courts. The author’s purpose is to provide a concise report of the existing trends in the application of the EU Regulation.

Z. Csehi: New Hungarian Legislation on conflict of laws, jurisdiction and procedure in private international law matters

In Hungary, Private International Law has been changed fundamentally by Act No XXVIII, which entered into force on 1 January 2018. These legislative changes are related to the recent reform of Hungarian civil law, which made modifications in the area of Private International Law necessary. From now on, rules regarding the conflict of laws, the international procedural law as well as the recognition and enforcement of foreign judgments are codified in a single legal act. The aim of this new codification of Private International Law was also to bring Hungarian legislation in line with the relevant European regulations, which was not entirely the case with the previous provisions. The present contribution describes the legal modifications in Hungarian Private International Law and the key changes of the reform.

PhD position at the University of Antwerp

The University of Antwerp is seeking a PhD candidate for their research group “Personal Rights and Property Rights”. Although you might not guess so at first sight, Private International Law is part of this research group, which focuses on private law and its international aspects.

Candidates should submit a research proposal, which should fit into the research of the group (see https://www.uantwerpen.be/en/research-groups/personal-rights-and-property-rights/). The deadline is 30 september 2018.

The successful candidate will be funded for a four-year period, from 1 February 2019 to 31 January 2021.

For more information and the application procedure, see https://www.uantwerpen.be/en/jobs/vacancies/ap/2018bapfrechex262/

London, 6/7 September 2018: Environmental Dispute Resolution and Small States

The aim of this two-day conference is to bring together representatives of Small States, government officials, academics and NGOs, as well as lawyers who are involved in dispute resolution in or for Small States (defined as those states with a population of 1.5 million or less). Conference participants will explore how (international) environmental dispute resolution can be used to combat climate change or environmental degradation and will discuss how Small States can obtain reparation for suffered environmental and/or climate change damage.

Many Small States are small island states. Climate change presents unique challenges to those states in particular. The difficulties that all countries face in effectively coping with the impact of climate change or environmental issues are exacerbated in Small (island) States because of their geographical area, isolation and exposure.

The conference is free of charge. Registration and programme can be found here.

Verona, 23/24 May 2019:  Trending International Law Topics – #TILT

The Law Department of the University of Verona (Italy), in cooperation with the Ph.D. School of Law and Economics and the European Documentation Centre, welcomes submission to the #TILT Young Academics Colloquium, to be held on 23-24 May 2019. It is the first meeting involving early career scholars on trending international and EU law topics to be organised in the unique location of the city of Verona.

The Colloquium falls within the activities of the research project “Trending International Law Topics – #TILT”, supervised by Maria Caterina Baruffi (Full Professor of International Law, University of Verona), which is aimed at deepening the investigation and fostering scientific discussion on trending topics in international and EU law, including also their impact on domestic legal systems. A series of seminars featuring prominent foreign academics and other events have already been organised so far, focusing for example on the relationships between the EU and national legal orders, migration, the EU Regulations in family law matters, the free movement of persons and the protection of fundamental rights.

In this context, the Colloquium represents a further activity dedicated to open issues in international and EU law, but specifically addressed to Ph.D. students and young researchers of any nationality and affiliation, who will be the leading speakers at this event. First, they are expected to present the results of their research, and then, to engage in the debate with the invited international experts acting as chairpersons and discussants.

The Call for Papers “What’s #Trending in International and EU Law” has been issued to select the papers that will be included in the Colloquium’s program. It is directed at advanced Ph.D. students (or within three years of its completion), post-doc research fellows and academics at early stages of their career, who are encouraged to submit proposals (in English) concerning public international law, private and procedural international law, or EU law, including also comparative perspectives, as well as issues related to law and economics.

Interested applicants are invited to submit:

  • a proposed title,
  • an abstract in English of max. 8000 characters (including spaces),
  • 3 keywords,
  • a CV

through the Call for Papers Application Form.

The deadline for submission is 15 October 2018 and applicants will be informed of the outcomes by 15 December 2018.

Detailed information about the Call for Papers are available here.

Any inquiry about the #TILT Young Academics Colloquium or the Call for Papers can be directed at this e-mail: trendingtopics.univr@gmail.com.

Winter academic conference on the topic of Global Social Justice

Dear LSGL members,

We are pleased to announce that there will be a winter academic conference on the topic of Global Social Justice, hosted by the Department of Law, Juridicum, at the Stockholm University, Sweden, on Tuesday, 19 February in conjunction with the Dean’s meeting planned for 18 February, 2019. We ask that you send the attached call for papers to any senior and/or junior researchers at your institutions who may be interested in participating on a panel within the topic. Potential themes include:

• The globalization of discrimination protections (e.g., labour/employment discrimination; gender-based discrimination including issues relating to the #MeToo movement)
• Equality in global trade – the roles of the WTO and other international actors
• Environmental law as a guarantor of global social justice
• Corporate social responsibility – An avenue to greater global justice?
• The potential role of digital technology in promoting global social justice

We anticipate having four panels each with three speakers and a moderator, thus accepting 12 papers. The LSGL will pay for two hotel nights for each one of the 12 speakers.
Paper proposals of 300 to 500 words should be submitted no later than 6 October 2018 together with a brief CV. Decisions will be announced by 1 November 2018 and the papers should be ready for circulation no later than 1 February 2019. Please send any inquiries and paper proposals to presidency@lawschoolsgloballeague.com.

Book Launch: Rethinking Choice of Law in Cross-Border Sales

Gustavo Moser has authored a new book on choice of law in cross-border sales. He has kindly provided the following summary:

The choice of a governing contract law is a paramount contractual decision. This is because the governing contract law will dictate a contract’s life from beginning to end, thereby attaching legal and economic consequences to each step taken in the course of a contractual relationship. Yet, this choice is seldom subject to an ex anteevaluation by the parties being rather often defer to an ex postverification. Would this be a contracting parties’ behaviour verified in cross-border contracts? If so, what would be the underlying cause(s) of this pattern of conduct?

Despite its acknowledged theoretical importance, it is often suggested that negotiators might dedicate less attention than they should to the particulars of the choice of law clause. Instead, negotiators tend to opt for law that may be convenient for business, or be the result of previous experiences, including, for example, following in a partner’s footsteps, or a successful deal in the past, without further deliberation. Parties may thus simply attribute a “tag” to this experience and evaluate it according to the outcomes achieved in these previous experiences. However, these evaluations may not always be accurate and can be clouded by emotion. Are there rational and non-rational elements involved in this choice? How can we ascertain these elements?

In light of this apparent discrepancy between theory and practice, we decided to investigate further how traders actually choose the law for their deals. We also wanted to find out the reasons for these decisions and the foundations on which these decisions are based. We therefore mapped out and delved into studies and surveys conducted in the past to appreciate the empirical efforts that had been undertaken so far.

Despite their unquestionable importance, scarce information is available in these studies on how this decision is taken, and the main factors informing choice of governing contract law. The alternatives available to improving and optimising this choice are likewise unexplored.

Additionally, the connection and role of law, economics and psychology in decision-making processes is often underexplored and possibly underestimated. Unfortunately, in a dynamic, globalized and complex world of contracts, interdisciplinary approaches are rarely studied. Therefore, there does not seem to be any answer to these practical questions:

  • Are contracting parties maximizers of their welfare?
  • Are they, generally speaking, self-interested players who seek to reach efficient results?
  • Does it depend on the context and external stimuli?
  • Do emotions play any role in the choice?
  • Can these emotions cloud or enlighten the judgment of these choices? If so, to what extent?
  • How can we avoid, control or minimize the effects of these emotional factors?
  • How can parties seek to influence and improve choice of governing contract law?

This is how the Global Empirical Survey on Choice of Law (for the purposes of this summary, the Global Empirical Survey) was conceived in 2014. The survey was essentially designed to investigate parties’ concerns regarding choice of law, reveal how and what factors determine the way contracting parties choose the law to govern their agreements, and to assess whether neutral legal frameworks were welcome in addressing these concerns.

The first chapter of the book sets out evidence on the choice of law and include a focus on how negotiators typically approach the subject and what are the main drives and triggers of this decision. We further investigate whether contracting parties are aware of the vast legal market options available and whether they actually enjoy their benefits. The first part also unveil the results of the Global Empirical Survey, which shown a rather clearer picture of the imperfections produced by cognitive limitations while choosing a governing contract law. In the second and third chapters, we map out some of the market distortions and imperfections to which negotiators are (consciously or not) routinely exposed. We also reveal the common psychological triggers that influence decision-making processes and how to identify and better control them to a party’s best advantage. We further shed light on the idiosyncratic contract design and the mechanisms to manage this properly in an international context, all in an attempt to identify and use the appropriate tools to make better decisions and obtain more efficient outcomes.

Readers will subsequently be invited to consider the major market distortions and failures to which contracting parties are routinely exposed.  We demonstrate that, with the increase of market activities and complexity of deals worldwide, parties need to be equipped with the most efficient tools to maximize gains from cross-border contracts, thereby avoiding risks and costly mistakes. With this purpose in mind, we analyse choice of law studies undertaken and offer alternatives to be used in practice, which seek to overcome recurrent complaints, uncertainties and fears when it comes to choosing governing contract law, including potential interplays and intersections with jurisdictional choices. We also attempt to verify the effectiveness of these solutions in light of the evidence presented.

The final chapter of the book concentrates on alternatives to escape “arm-wrestling”, “home turf”, deadlock situations and other tactical scenarios in cross-border contracts. We present and compare alternatives which can be used in international contract settings and then test the effectiveness of the solutions they can provide, taking into account both the legal and economic aspects and contracting parties’ real-life concerns and preferences collected in the earlier chapters. Readers are invited to find out the answers to the following questions: what really matters to contracting parties when drafting choice-of-law clauses? Are there key provisions, “backbones”, legal standards or frameworks that are indeed indispensable? Do contracting parties consider legal and economic choices at all? With this in mind, we aim to offer to legal practitioners tools that enable them to excel and effectively optimise, at a rather even level between parties, the exchange of goods worldwide.