International Business Courts – seminar and NCC update

As announced earlier the seminar Innovating International Business Courts, organized by Erasmus School of Law (ERC project Building EU Civil Justice), the Max Planck Institute Luxembourg, and the Montaigne Center of Utrecht University) will take place in Rotterdam on 10 July 2018. We have a great line-up of speakers and over 100 participants, including practitioners, academics, business representatives and policy makers from from all over Europe and beyond. During the drinks young researchers will do a poster presentation.

While the expectation was that the Netherlands Commercial Court (NCC) would open its doors on 1 July 2018 (see also the previous post), discussions in the Senate have caused delay. The discussions evolve around a number of issues, but most importantly the relatively high flat fee (compared to the fees of ordinary proceedings and for smaller companies/claims). Prof. Eddy Bauw, one of the founding fathers of the NCC, will update us on the 10th of July.

For more information and registratation click here; registration closes on 9 July at 9 a.m.

Job Vacancy at the University of Trier (Germany)

The Faculty of Law at the University of Trier is looking for a research fellow (Wissenschaftliche(r) Mitarbeiter(in)) at the Chair for Private Law, Private International Law and Comparative Law (Prof. Dr. Jens Kleinschmidt, LL.M. (Berkeley)) on a part-time basis (50 %) as soon as possible.

The position will be paid according to the salary scale E 13 TV-L, and the contract will be for an initial period of two years.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the chairholder’s supervision (according to the applicable regulations of the Law Faculty). His/her tasks will include supporting the chairholder in research, teaching and administrative matters, an independent teaching obligation of 2 hours/week (in German) and pursuing his/her own Ph.D. project.

The successful candidate holds a first law degree (Erste juristische Prüfung) above average and has a particular interest in private law and the willingness to work in the research areas of the chair. A very good command of German and, in addition, English or French is required. Knowledge of another language or a stay abroad will be an asset.

Candidates with disabilities will be given preference in case of equal qualification. Applications by qualified women are particularly welcome.

If you are interested, please send your application (cover letter in German, CV, all relevant documents including transcripts and copy of law degree) by 31 July 2018 to: Professor Dr. Jens Kleinschmidt, Universität Trier, FB V – Rechtswissenschaft, 54286 Trier, Germany.

The job advert in full detail is available here.

From the editors’ desk: Construction zone ahead

Dear readers,

some of you might have noticed that we are currently working to improve conflictoflaws.net. If the site does not look the way it used to look like, that is why.

We do our best to keep the blog up and running while we are working on it, but ask for your understanding if once in a while things do not work out or do not look as expected. Thank you! Read more

New online service on International Arbitration

The publisher’s blurb is as follows:

“The Chinese perspective on The South China Sea Arbitration, is just one of the 40+ texts searchable on the new online service, International Arbitration.

The service is made up of content from three respected publishing brands (Hart Publishing, CH Beck-Nomos and Bloomsbury Professional). It provides access to materials by over 60 respected author names with the speed and convenience of online research.

International coverage in depth and breadth

The content covers a broad range of jurisdictions from arbitration centres all over the world including:

  • China
  • New York
  • Switzerland
  • Germany
  • The Middle East

Expert authors and contributors

Authors and contributors are drawn from leading firms and academic institutions, including:

  • Allianz SE
  • Gleiss Lutz
  • PriceWaterhouseCoopers
  • Herbert Smith Freehills LLP
  • Freshfields Bruckaus Deringer
  • Oxford University
  • University College London

Regional experts include Kun Fan on Arbitration in China and Reinmar Wolff on the New York Convention.

You can only fully appreciate the quality of International Arbitration by trying it for yourself. For more information, or to sign up for a free trial please visit http://www.bloomsburylawonline.com/internationalarbitration/

 

 

Out now: Festschrift in honour of Jolanta Kren Kostkiewicz

Although it is hard to believe in light of her vitality and prolific academic output, Professor Dr. Jolanta Kren Kostkiewicz (University of Berne, Switzerland) will actually retire at the end of the spring term 2018. On this occasion, many colleagues and friends both from Switzerland and abroad have contributed to a voluminous Festschrift in her honour which is published under the general heading “Civil procedure and execution in the national and international sphere – intersections and comparisons” (Alexander R. Markus/Stephanie Hrubesch-Millauer/Rodrigo Rodriguez [eds.], Zivilprozess und Vollstreckung national und international – Schnittstellen und Vergleiche, Stämpfli Verlag AG, Bern 2018, 858 pp., ISBN: 978-3-7272-2289-4, CHF 158). Read more

Symposium in honour of Professor Gabrielle Kaufmann-Kohler

The Law Faculty and the Department of Private International Law of the University of Geneva are organizing a symposium on international dispute settlement in honour of Prof. Gabrielle Kaufmann-Kohler. This event will take place on 27 September 2018 in Geneva. The organizers wish to celebrate Kaufmann-Kohler’s career as professor, arbitrator, counsel, researcher and director of research. Her colleagues, friends and former students will gather to celebrate this extraordinary lawyer whose talents and personality are recognized worldwide. Further information about the programme and details on registration may be found here.

Vacancy: Senior Research Assistant sought for global project on choice of law

Professor Daniel Girsberger of the University of Lucerne is seeking to employ a Senior Research Assistant to work on a global project on Choice of Law in International Commercial Contracts. The part-time position is funded by the Swiss National Research Fund (SNF), initially for a period of three years. It is envisaged that the successful candidate would work from the University of Lucerne (and/or Geneva).

The successful candidate will:

– be a lawyer
– have very good credentials
– have completed a doctoral dissertation or be an advanced doctoral candidate
– be multilingual: ideally a native (or otherwise an excellent) English speaker with excellent English writing skills, and with very good writing (and good speaking) skills in German and at least two other languages, such as French and Spanish
– have specific research and practical skills, experience and an interest in:
o private international law on a domestic as well as regional or global level
o (ideally) international arbitration
o international instruments in the area of commercial law (such as the CISG, UNIDROIT Principles, New York Convention 1958 and Hague Conference instruments)
– have very good practical skills in using legal databases (search and management of such databases) and electronic data processing
– be very well organized and have very good communication skills to communicate with legal academics from all over the world.

Enquiries and applications (CV and covering letter) should be directed to Daniel Girsberger: Daniel.Girsberger@unilu.ch.

Applications close on 31 August 2018.

A link to the advertisement on SSRN is available here.

Tort Litigation against TNCs in the English Courts

Ekaterina Aristova, a PhD in Law Candidate at the University of Cambridge, has made available on SSRN her article “Tort Litigation against TNCs in the English Courts: The Challenge of Jurisdiction”. Published earlier this month in the Utrecht Law Review the article discusses a recent trend of private claims alleging direct liability of parent companies for overseas human rights abuses (‘Tort Liability Claims’) focusing on the rules of civil jurisdiction applied by the English courts. It demonstrates how jurisdictional issues arising in Tort Liability Claims challenge the traditional value-neutralism paradigm of private international law as an abstract and technical disciplineby necessitating increasing involvement of domestic courts in the regulation of transnational corporations (‘TNCs’).

The author has kindly provided us with a brief summary of her key findings:

1) Tort Liability Claims are typically initiated in England by private partiesaffected by the activities of TNCs in the host (foreign) state.These arecivil liability cases in which the cause of actionagainst English-domiciled parent companiesis framed through the tort law concept of duty of carerather than the corporate law doctrine of piercing the corporate veil or customary international law on human rights. The allegations are based on the common law principles which provide that in certain circumstances the parent company may be found to have assumed a duty of care, owed to the claimants, to ensure their safety.The article explainsthat duty of care is invoked by the claimants in order to: (1) attribute liability for the overseas abuse to the parent company; (2) establish the necessaryterritorialconnection between the alleged tort and England; and (3) weaken the extraterritoriality concerns raised by the judgment of the English courtswith respect to the events occurred on the territory of the host(foreign)state.

2) To date, the application of Brussels I and English common law by English courts to Tort Liability Claims has resulted in the development of a jurisdictional solution for claims brought against English-domiciled parent companies and their foreign subsidiaries as co-defendants. The concept of duty of care allows claimants to bring claims against English-domiciled parent companies as anchor defendants so as to allow the joinder of the foreign subsidiary as a necessary or proper party under common law. Following the CJEU’s decision in Owusuthe general rule of domicile under Article 4 of Brussels I has a mandatory effect in the proceedings against English-domiciled parent company and claimants cannot rely onthe doctrine of forum non conveniens under English traditional rules. As a result, claims brought against foreign subsidiaries are also likely to survive the forum convenienscontrol. The overall analysis of the rules of jurisdiction in this article suggests that: (1) claims against the English-domiciled parent company in relation to the overseas operations of its foreign subsidiary can be heard in the English courts; and (2) the existence of an arguable claim against an English-domiciled parent company also establishes jurisdiction of the English courts over the connected claims against the subsidiary even if the factual basis of the case occur almost exclusively in the foreign state.

3) One of the most recent successful attempts of foreign citizens to establish English jurisdiction over legal entities of TNC is litigation against English-based mining corporation Vedanta Resources Plc (‘Vedanta’) and its Zambian subsidiary Konkola Copper Mines (‘KCM’) in relation to the environmental pollution in Zambia resulting from the KCM’s operations. Both the High Court (discussed by the author earlier on this blog) and the Court of Appeal (also refer to author’s earlier post) confirmed that Zambian citizens can pursue in England claims against Vedanta and KCM. Decisions of the English courts inVedanta allow making few important observations. Firstly, if the parent company merely held shares in the capital of a foreign subsidiary this would not lead to the establishment of a duty of care and additional circumstances are required to conclude whether the parent company could be held responsible. Second, the parent’s direct and substantial oversight of the subsidiary’s operations in question, including specific environmental and technical deficiencies of the infrastructure in the host state, is likely to give rise to the duty of care. Third, engagement in a mini-trial on the substantive liability issues is not appropriate at the early jurisdictional stage of proceedings, before full disclosure of the relevant documents. Fourth, in the context of applying the ‘necessary or proper party’ gateway, the practical objectives of avoiding two trials on similar facts and events in different parts of the world outweigh the need for the existence of a territorial connection between England and the claim against a foreign subsidiary of the English-domiciled parent company.

4) Unlike in Vedanta, the foreign claimants in Okpabi v Shellfailed to establish jurisdiction of the English courts over claims against Royal Dutch Shell, an English-domiciled parent company (‘RDS’), and its Nigerian operating subsidiary Shell Petroleum Development Company of Nigeria Ltd (‘SPDC’) for the ongoing pollution and environmental damage caused by the oil spills in Nigeria. In 2018, the Court of Appeal in a split decision concluded that the claimants had not established an arguable duty of care assumed by RDS in relation to SPDC’s operations and that, hence, there was no real issue to be tried by RDS and the claimants. As a result, claims against RDS and SPDC were dismissed. The article criticises the Court of Appeal decision for two major shortcomings. First of all, it is submitted that the court took a highly restrictive approach for the imposition of the duty of care on English-domiciled parent companies in relation to the overseas activities of their subsidiaries. The second serious shortcoming of the Court of Appeal’s majority decision in Okpabiis an unreasonably high burden on the claimants to establish an arguable case on the duty of care at the jurisdictional stage of proceedings. Arguably, such approach blurs the boundary between jurisdictional inquiry and resolution of the case on the merits.

5) Finally, the article also discusses the Anglo American Group litigation, where the South African claimants contended that they had suffered from silicosis and silico-tuberculosis in the course of their employment by AASA, the South African company. The claimants argued that the central administration of AASA was in London, since this was the location of Anglo American plc, its English-based parent company, and that it followed that AASA was domiciled in England under the meaning of Brussels I. The Court of Appeal, who defined ‘central administration’ as the place ‘where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations’, declined to find that decisions of the English-domiciled parent company with respect to the operations of the group had any relevance in determining the domicile of the foreign subsidiary. As a result, it is challenging for the claimants in the Tort Liability Claims, if not impossible, to assert jurisdiction over a foreign subsidiary directly without also commencing proceedings against an English-domiciled parent company. The article further criticised Court of Appeal decision for the lack of jurisdictional analysis of the integrated nature of TNCs and their managerial organisation.

6) The overall conclusion of the article is that Tort Liability Claims offer the discipline an opportunity to reconsider its role of the neutral mediator in international litigation and contribute to the debate on international corporate accountability. Itis notargued that private international law should close the gap in group liability through unilateral transformation of judges into agents of justice by substituting the norms of public international law and substantive domestic law governing overseas operations of business actors. Rather,the disciplinemay engage where appropriate and the uniform rules of jurisdiction are capable of balancing the regulatory impact of these jurisdictional rules with its potential to cause inter-state jurisdictional conflicts.

Newcastle University PhD Studentship in Law (including private international law)

Value of award: 100% of UK/EU tuition fees for 3 years and an annual stipend at the UKRI postgraduate rate, currently £14,777.

Start date and duration: 1 September 2018 for 3 years.

Application closing date: 12 July 2018.

Overview: Applications are invited from candidates with an interest in pursuing a PhD in any area of Law in which the School offers supervision. See our list of staff members to find an appropriate supervisor for your research topic.

Eligibility Criteria: Candidates are expected to hold at a minimum either a first class, or a very good upper second class undergraduate degree in Law.

Applications will be considered on their merits, including further education at Masters level, a publication record, professional qualifications, or relevant work experience.

The successful candidate must take up their scholarship at the commencement of the 2018/19 academic year, studying full-time.

It is a condition of the award that the successful candidate undertake some undergraduate teaching and academic support activities within the Law School, normally from the second year of their PhD studies, to a maximum not normally exceeding an average of 6 hours per week during semester 1 and 2 of the academic year.

How to apply: You must apply through the University’s online postgraduate application system. To do this please ‘Create a new account’.

All relevant fields should be completed, but fields marked with a red asterisk must to be completed. The following information will help us to process your application. You will need to:

  • insert the programme code 8230F in the programme of study section;
  • select ‘PhD Newcastle Law School (full-time)’ as the programme of study;
  • insert the studentship code LAW007 in the studentship/partnership reference field;
  • attach a covering letter and  CV. The covering letter must state the title of the studentship, quote reference code LAW007, and state how your interests and experience relate to the project;
  • attach degree transcripts* and certificates and, if English is not your first language, a copy of your English language qualification.

*You will not be able to submit your application until you have submitted your degree transcript/s.

Candidates who have already applied for a place on the Law PhD programme from September 2018 will be considered and need not reapply.

Contact: Professor Sophia Tang

“Recognition of Foreign Judgments in China: The Liu Case and the ‘Belt and Road’ Initiative,” a New Article by Professor Ronald Brand

Professor Ronald Brand has recently posted a paper titled “Recognition of Foreign Judgments in China: The Liu Case and the ‘Belt and Road’ Initiative.” The posting includes an English translation of the first Chinese case to recognize and enforce a U.S. judgment, prepared by Yuting Xu. The combined paper and case translation are available here.

By way of a brief summary, in June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.