The Centre for the Study of European Contract Law of the University of Amsterdam is offering a PhD position in the field of private law (including private international law). Interested parties can formulate their own research proposal which has to be submitted before 1 October 2018. More information can be found here.
The UNCITRAL has published the Report from the 51st session. Annexes to the report contain the proposed United Nations convention on international settlement agreements resulting from mediation, the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, and the UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments.
The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:
S.H. Elsing/A. Shchavelev: The new DIS Arbitration Rules 2018
On 1/3/2018, the new arbitration rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) came into force. The revision process took almost two years and resulted in a comprehensive overhaul of the former arbitration rules which date back to the year 1998. The new rules combine well-tried elements of the former regime with much-anticipated improvements which will help the DIS and the arbitration practice in Germany in general to keep up with the changes and developments in domestic and international arbitration. Notably, the DIS now has two authentic versions of its arbitration rules: a German and an English one. The most relevant amendments include (1) several provisions aimed at enhancing the efficiency of the proceedings and promotion of early settlements; (2) the foundation of a new body, the Arbitration Council, which will now decide, inter alia, on the challenge and removal of arbitrators, the arbitrators’ fees and the amount in dispute; and (3) new comprehensive provisions on consolidation, multi-party and multi-contract proceedings and the joinder of additional parties. In addition, the DIS will now be more closely involved in the administration of the arbitration after the constitution of the arbitral tribunal. With these amendments, the new arbitration rules will arguably become more accessible and thus more appealing to foreign users and will help the DIS to expand its position beyond the German speaking countries towards a truly international arbitral institution.
E. Jayme: Draft of a German statute against the validity of polygamous marriages celebrated abroad – critical remarks
The draft of a German statute against polygamous marriages does not take into account the bilateral treaty on social security between Germany and the Kingdom of Morocco, which presupposes the validity of polygamous marriages: both widows share the social security benefits. In view of current court practice there is no need for a German statute, which in situations in which both spouses have their habitual residence in Germany, provides for court action in order to declare the second marriage null and void. The general clause of public policy (art. 6 of the Introductory Act to the German Civil Code [EGBGB]) seems to be sufficient for dealing with polygamous marriages.
A. Wolf: Jurisdiction of German Courts for cartelists’ recovery claims due to a joint and several liability
In its decision, the Higher Regional Court Hamm determined under § 36 Sec. 1 No. 3 ZPO on the so-called „Schienenkartell“ that the German District Court Dortmund has international jurisdiction for recovery claims between jointly and severally liable cartelists from Germany, Austria and the Czech Republic. Therefor it applied Art. 8 No. 1 Brussels I recast together with German rules on subject matter jurisdiction and interpreted § 32 ZPO following the Court of Justice in its CDC-judgment with regard to Art. 7 No. 2 Brussels I recast.
W. Wurmnest/M. Gömann: Shaping the conflict of law rules on unfair competition and trademark infringements: The “Buddy-Bots” decision of the German Federal Supreme Court
On 12 January 2017 the German Federal Supreme Court (Bundesgerichtshof) rendered its judgment on the unlawful distribution of supporting gaming software – so-called “Buddy-Bots” – for the multiplayer online role-playing game “World of Warcraft”. This article takes a closer look at the application of Art. 6 and Art. 8 Rome II Regulation by the Supreme Court. The authors argue that the principle of uniform interpretation could be threatened by the Court’s tendency to align its reading of European conflict of law rules with the interpretation of the “old” German law now superseded by the Rome II Regulation, especially with regard to the market effects principle under Art. 6(1) Rome II Regulation.
O.L. Knöfel: Delegated Enforcement vs. Direct Enforcement under the EU Maintenance Regulation No. 4/2009 – The Role of Central Authorities
The article reviews a decision of the European Court of Justice (Case C-283/16), dealing with questions of international judicial assistance arising in enforcement procedures under the European Maintenance Regulation No. 4/2009. The Court held that a maintenance creditor is entitled to seek cross-border enforcement directly in a court, without having to proceed through the Central Authorities of the Member States involved. National regulations such as the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, demanding applications to be submitted to the Central Authority of the requested Member State, must be interpreted in the light of the European Maintenance Regulation. The author analyses the relevant issues of cross-border recovery of maintenance and explores the decision’s background in European Union law.
R.A. Schütze: Cautio iudicatum solvi in case of uncertainty of seat of companies
110 German Code of Civil Procedure requires plaintiffs with an ordinary residence or seat (if a company or other legal entity) outside the European Union or the European Economic Area (EWR) to provide – on request of the defendant – a cautio iudicatum solvi. In two judgments – commented below – the Bundesgerichtshof and the Oberlandesgericht Düsseldorf have decided on the ratio of security for costs under German law and on important issues of proof in case that the seat of the plaintiff (inside or outside EU or EWR) is contested. The Oberlandesgericht Düsseldorf qualifies the right of the defendant to demand security of cost from the plaintiff as an exceptio for which the burden of proof lies with the defendant. But as the plaintiff is more familiar with its organization and activities it has a secondary burden of asserting relevant facts (sekundäre Vortragslast). However, this does not change the burden of proof.
L. Kopcznyski: Confusion about the reciprocity requirement
According to domestic German law, the recognition and enforcement of foreign judgments is dependent on the requirement of reciprocity (sec. 328 (1) no. 5 of the German Code of Civil Procedure). It is, however, not an easy task to assess whether a foreign state would recognise a German judgment in similar circumstances. Courts regularly struggle to apply correctly the specific prerequisites which have to be met in this regard. A recent judgment of the Regional Court in Wiesbaden demonstrates that. In its decision, the court refused to enforce a Russian judgment because it set the bar for reciprocity far too high.
M. Gebauer: Compulsory recognition procedure according to Section 107 FamFG in order to determine the validity of a divorce registered at a foreign consulate located in Germany
German law requires that foreign decisions (originating beyond the EU) affecting the status of a marriage, e.g. divorce judgements, are subject to a compulsory recognition procedure (Anerkennungsverfahren), according to paragraph 107 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). This requires a free-standing application by an interested party to the relevant state authority which is responsible for determining the application. The decision, rendered by the Court of Appeal (Oberlandesgericht) in Nuremberg, reinforced long-standing judicial reasoning, albeit made with reference to a previous similarly worded statute, that the recognition procedure is also required where a foreign diplomatic mission situated in Germany is responsible for an official act potentially affecting the parties’ marriage in Germany. The Court of Appeal in Nuremberg correctly reasoned by way of analogy that while the paragraph does not specifically deal with circumstances where a divorce is registered by a foreign diplomatic mission situated in Germany, the legislator had not intended for the previous judicial approach to be reviewed. Thus, courts should continue to treat divorces in which a foreign diplomatic mission situated in Germany has been involved in the same way as judgements issued in foreign countries. This meant that the local court had no jurisdiction to determine the validity of a divorce registered at the Thai consulate located in Frankfurt. An application to the relevant state authority in terms of the compulsory recognition procedure must first be disposed of before matters can be considered by the local court
K. Siehr: „Wrongful Retention“ of a Child According to Article 3 of the Hague Abduction Convention of 1980
A couple habitually resident in South Africa had two children living with them. The couple separated but had joint custody for the children. The mother travelled to Senegal with the children but did not return them until January 3, 2016. In August 2016 mother and children took refuge in Germany. On January 2, 2017 the father in South Africa asked German authorities to return the wrongfully retained children to South Africa. The court of first instance (Amtsgericht Pankow-Weißensee) refused to do so because the children were not wrongfully retained because Senegal is no State Party of the Hague Abduction Convention of 1980. The Court of Appeal in Berlin (Kammergericht) reversed the decision of first instance and correctly interpreted Art. 3 Hague Abduction Convention as not requiring abduction wrongfully committed in a State Party. According to Art. 4 Hague Abduction Convention, the abducted or retained child must have had his/her habitual residence in a State Party immediately before the removal or retention. Art. 3 and 4 Hague Abduction Convention are discussed and analyzed, also with respect to the more restricted wording of Art. 2 No. 11 Hague Custody Convention of 1996. Finally, it is stressed that it does not matter whether the wrongfully abducted child spent some time in States not being State Parties to the Hague Abduction Convention as soon as the one year time limit for the application of return (Art. 12 sec. 1 Hague Abduction Convention) has been met.
A. Piekenbrock: Jurisdiction for damage claims regarding forum shopping in European Insolvency Law: commentaries on Court of Cassation, Social Chamber, 10.1.2017
The paper deals with a decision delivered by the French Court of Cassation regarding damage claims within the context of the initiation of English administration proceedings for all EU companies of the Canadian Nortel Networks Group including the French Nortel Networks SA in January 2009. The Social Chamber has come to the conclusion that English Courts have exclusive jurisdiction regarding damage claims of a former employee of the French company based on alleged falsehood by the opening of the main insolvency proceedings in England. The decision emphasises correctly the binding force of the English opening decision. Yet, the reasoning seems erroneous insofar as the claim is not directed against the insolvent company itself or its liquidator, but rather against another company of the same group (the British Nortel Networks UK Limited) and the insolvency practitioners involved (Ernst & Young). At least the Court of Cassation as a court of last resort should have referred the case to the C.J.E.U. pursuant to Art. 267(3) TFEU.
K. Lilleholt: Norwegian Supreme Court: The Law of the Assignor’s Home Country is Applicable to Third-Party Effects of Assignments of Claims
In its judgment of 28/6/2017, the Norwegian Supreme Court held that the effects in relation to the assignor’s creditors of an assignment of claims by way of security was governed by the law of the assignor’s home country under Norwegian choice of law rules. This issue has not been dealt with in Norwegian legislation, and earlier case law is sparse and rather unclear. Application of the law of the assignor’s home country has been recommended by legal scholars, but these views are not unanimously held. The Supreme Court’s decision is in line with the later proposal for an EU regulation on the law applicable to the third-party effects of assignments of claims. The proposed regulation will not be binding on Norway, as it will not form part of the EEA agreement. This is also the case for other EU instruments regarding private international law, like the Rome I and Rome II Regulations and the Insolvency Regulation. In several recent judgments, however, the Supreme Court has stated that EU law should provide guidance where no firm solution can be found in Norwegian choice of law rules (IV.). The case also raised a jurisdiction issue. The Supreme Court found that the insolvency exception in the Lugano Convention Art. 1(2)(b) applied and that Norwegian courts had jurisdiction because the insolvency proceedings were opened in Norway. This article will record the facts of the case (II.) and present the jurisdiction issue (III.) before the Supreme Court’s discussion of the choice of law rule is presented and commented upon (IV.).
K. Thorn/M. Nickel: The Protection of Structurally Weaker Parties in Arbitral Proceedings
In its judgment, the Austrian Supreme Court of Justice (OGH) ruled on the legal validity of an arbitration agreement between an employer based in New York and a commercial agent based in Vienna acquiring contracts in the sea freight business. The court held that the arbitration agreement was invalid and violated public policy due to an obvious infringement of overriding mandatory provisions during the pending arbitral proceedings in New York. The authors support the outcome of the decision but criticize the OGH’s reasoning that failed to address key elements of the case. In the light of the above, the article discusses whether the commercial agent’s compensation claim relied on by the court constitutes an overriding mandatory provision although the EU Commercial Agents Directive does not cover the sea freight. Further, the article identifies the legal basis for a public policy review of arbitration agreements and elaborates on the prerequisites for a violation of public policy. In this regard, the authors argue that arbitration agreements can only be invalidated due to a violation of substantive public policy if a prognosis shows that it is overwhelmingly likely and close to certain that the arbitral tribunal will neglect applicable overriding mandatory provisions.
Roxana Banu of Western University has published Nineteenth-Century Perspectives on Private International Law, a new book in the Oxford University Press series on the history and theory of international law. Information from the publisher can be found here. From the website:
Private International Law is often criticized for failing to curb private power in the transnational realm. The field appears disinterested or powerless in addressing global economic and social inequality. Scholars have frequently blamed this failure on the separation between private and public international law at the end of the nineteenth century and on private international law’s increasing alignment with private law.
Through a contextual historical analysis, Roxana Banu questions these premises. By reviewing a broad range of scholarship from six jurisdictions (the United States, France, Germany, the United Kingdom, Italy, and the Netherlands) she shows that far from injecting an impetus for social justice, the alignment between private and public international law introduced much of private international law’s formalism and neutrality. She also uncovers various nineteenth century private law theories that portrayed a social, relationally constituted image of the transnational agent, thus contesting both individualistic and state-centric premises for regulating cross-border inter-personal relations.
Overall, this study argues that the inherited shortcomings of contemporary private international law stem more from the incorporation of nineteenth century theories of sovereignty and state rights than from theoretical premises of private law. In turn, by reconsidering the relational premises of the nineteenth century private law perspectives discussed in this book, Banu contends that private international law could take centre stage in efforts to increase social and economic equality by fostering individual agency and social responsibility in the transnational realm.
The Journal of Private International Law is inviting abstracts for its 8th conference to be held at the Ludwig-Maximilians-University Munich from 12-14 September 2019. Abstracts of up to 500 words from scholars, at any stage of their career, should be sent to jprivintl2019@lmu.de by Monday 7 January 2019.
The Journal has held very successful conferences in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio de Janeiro (2017). Its biennial conferences provide a unique forum for scholars from all over the world to meet and advance the discipline of private international law.
Speakers will not be required to pay a registration fee but must cover their own travel and accommodation costs. It is expected that speakers will, before the end of 2019, submit the final version of their papers to be considered for publication in the Journal in the first instance.
Further details can be found in volume 14(2) of the Journal or on the University’s website.
Thanks go to Michael Douglas for alerting me to the call for papers.
Applications for the 2019 Nygh Hague Conference Internship Award close at the end of this month. The award contributes towards the costs of a student or graduate, of an Australian law school, working for up to six months at the Secretariat of the Hague Conference on Private International Law in the Netherlands.
The internship aims to foster Australian involvement in the work of the Hague Conference and is established in memory of the late Hon. Dr. Peter Nygh AM. The Australian Institute of International Affairs and the Australian Branch of the International Law Association sponsor the award.
The successful candidate is expected to start the internship in The Hague on 14 January 2019. Further details and information on how to apply is available here.
The Institute of German and International Procedural Law at the University of Bonn is looking for research fellows (Wissenschaftliche Mitarbeiterin / Wissenschaftlicher Mitarbeiter) at the Chair of Prof. Dr. Matthias Weller on a part-time basis (50% and 25%).
Your task will include supporting the chair in research and teaching, especially in the areas of conflict of laws, international civil procedure, private law and cultural property law.
A candidate should hold a first law degree (i.e. the German First State Exam) above average (at least “vollbefriedigend”). A very good command of German is required, further language skills will be an asset.
The positions will be paid according to the salary scale E 13 TV-L. The contract period will be limited to 3 years (with a possibility of renewal). Supervision of a PhD in the research fields of the chair will be offered.
The University of Bonn aims at increasing the number of women in academia. Therefore, applications of qualified women are particularly welcome. Candidates with disabilities will be given preference in case of equal qualification.
If you are interested, please send your application per email to: Prof. Dr. Matthias Weller (weller@jura.uni-bonn.de).
For further information see here.
On Thursday 11 October 2018, the Maastricht Private Law Lecture, which is hosted by the Maastricht Department of Private Law, will take place at Maastricht University (Faculty of Law). This lecture will be delivered by Prof. dr. Symeon C. Symeonides and is entitled “The ‘Private’ in Private International Law”. An interactive seminar with PhD researchers will follow the next day. This event is open to everyone but registration is required and is free of charge. More information is available here.
Interested persons may also wish to read Prof. Symeonides’ excellent General Course given at the Hague Academy, which deals with this subject matter in greater depth: Symeon C. Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (General Course on Private International Law), Recueil des cours, tome 384, Brill/Nijhoff, Leiden/Boston, 2016 (see in particular Chapter IV pp. 100-130).
By the Permanent Bureau of the Hague Conference on Private International Law
During the solemn ceremony celebrating its 125th Anniversary, the Hague Conference on Private International Law (HCCH) launched a new video “HCCH: Connecting. Protecting. Co-operating.” In a visually appealing way, the video explains the work of the HCCH and the importance of the Organisation in a globalised world.