The enactment of Regulations 2016/1103 and 2016/1104, implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and of the property consequences of registered partnerships, represents a significant step forward in the development of a European Private International Law in the field of Family and Successions Law.

The application of the application of these instruments from January the 29th 2019, is also going to deeply affect the autonomous Private International Law systems of those Member States which participate in such enhance cooperation proceeding.

A selected group of Spanish academics and legal practitioners (including, Lawyers, Judges, Notaries and Land Registers) published a profound analysis of those Regulations, as well as their coordination with other instruments in the field of Judicial Cooperation in Civil matters and its interaction with national provisions from participating Member States: see here.)

This book constitutes the first Spanish Commentary devoted to Regulations 2016/1103 and 2016/1104, prepared by the same experienced group of specialists, edited by Profs. Iglesias Buhigues and Palao Moreno (University of Valencia), who previously edited an aclaimed Commentary to the EU Successions Regulation 650/2012 (see  here).

Prof. Dr. Marta Requejo Isidro (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) recently posted a new paper in the MPILux Research Paper Series, titled International Commercial Courts in the Litigation Market.

Here is an overview provided by the author.

The expression “international commercial courts” refers to national judicial bodies set up in the last fifteen years in several jurisdictions throughout the world -Asia, Middle East, Europe- to suit the specific demands of international commercial litigation. The courts and the proceedings before them share unique features often imported from the common law tradition and the arbitration world, with a view to providing a dispute resolution mechanism tailored to the subject-matter. This notwithstanding there is no single model of international commercial court: on the contrary, each of them presents distinctive characteristics, which determine their greater or lesser capacity to fulfil the objective of serving international commercial litigation. By way of example: in their origin the courts of Dubai and Abu Dhabi were created not so much to reproduce a successful model of international commercial litigation, as to separate – and complement at the same time – the local legal system of the Emirates, based on Sharia and the tradition of civil law and with Arabic as the official language. In the wish to capture in as much as possible the advantages of international arbitration, parties before the Dubai International Financial Centre Courts are given the possibility of “converting” a DIFC Court’s decision into an arbitral award; no other court offers this chance. The authorization to use English as the language of the process varies from court to court in Continental Europe. In the Old Continent only the (still pending) Brussels International Business Court would be staffed with foreign judges.

This paper summarizes the main traits of several international commercial courts prior to exploring their relationship with international arbitration, on the one hand, and among them, on the other, at a time when the term “litigation market” is used matter-of-factly, and the “competition” among dispute resolution mechanisms is regarded as an incentive for the improvement within justice systems at a global level. In this context, elements such as the language of the process, the possibility of being represented by a foreign lawyer, the facilities to apply English law to the merits of the case, or the existence of a network of instruments for the enforcement of decisions abroad, may prove decisive in the choice of the users to file a claim with an international commercial court (and which one among them), or going to arbitration.

The latest issue of RabelsZ has just been released. It contains the following articles:

Kutner, Peter, Recognition and Enforcement of Foreign Judgements – The Common Law’s Jurisdiction Requirement, pp. 1 et seq

The “Dicey Rule” has been treated as canonical in England and elsewhere. However, it has changed over time, it has been based in part on UK legislation, and it does not reflect other possible bases of jurisdiction that have been accepted in some cases. This article will set forth what the common law (the law without specific alteration by statute) has been and now is on the subject of “ jurisdiction in the international sense”. Drawing on case law and authoritative writing from across the common law world, the article will identify and examine established and debatable grounds for jurisdiction and how they have been applied. As will be seen from references to cases in courts outside England and writings on conflict of laws in countries other than England, for some countries the law on jurisdictional “competence” is or may be different from what is stated in the current version of the Dicey Rule.

Lehmann, Matthias and Eichel, Florian, Globaler Klimawandel und Internationales Privatrecht – Zuständigkeit und anzuwendendes Recht für transnationale Klagen wegen klimawandelbedingter Individualschäden (Climate Change and Private International Law – Jurisdiction and Applicable Law in Transnational LitigationConcerning Individual Losses Caused by Global Warming), pp. 77 et seq

Increasingly, victims of global warming venture outside their own jurisdiction to sue polluters. Following the example of the United States, the phenomenon has now reached Europe. This article addresses the many questions raised by climate change litigation in a cross-border context. Starting from the treaty framework for greenhouse gas emissions, it analyses issues in respect of court jurisdiction and the applicable law from a European perspective. The authors argue for a balancing of the legitimate interests of, on one hand, private individuals who suffer the consequences of climate change and, on the other, industrial firms that have acquired and relied on emission rights. With regard to the competent court, they suggest limiting court jurisdiction under Art. 7(2) Brussels Ia Regulation to those places where it was foreseeable, from the perspective of the polluter, that damage would occur. With regard to the applicable law, they propose tempering Art. 7 Rome II Regulation by an analogous application of Art. 5(1) para. 2 of the same Regulation. While the victim can generally choose between the law of the country where the damage originated and where the damage occurred, the latter option should be restricted in the case of climate change litigation because the place of damage is typically unforeseeable for the tortfeasor. Furthermore, a valid authorization by the state of emission should be taken into account under Art. 17 Rome II Regulation insofar as appropriate. The law of the country where the damage occurred could apply to liability where an authorization does not exist, was obviously invalid, obtained by fraud or where such authorization has been consciously transgressed.

Wendelstein, Christoph, „Menschenrechtliche“ Verhaltenspflichten im System des Internationalen Privatrechts (The Role of Human Rights in Private International Law), pp. 111 et seq

The article examines the significance of human rights in the field of private law and conflict of laws. The author points out that human rights per se have no relevance in the field of private law. However, human rights are suitable for modifying the content and scope of subjective private rights, particularly through the (judicial) elaboration of behavioural duties. With regard to Art. 4(1) Rome II Regulation and the question of determining the place where the damage occurs, the author proposes to distinguish between “subjective private rights with a physical reference object defined also via the duty side” (e.g. property) and “subjective private rights without a physical reference object defined only via the duty side” (e.g. personality rights). As to the former, rights are located at the place where one finds the reference object (e.g. “things” in the case of property law). As to rights associated with the latter, a further distinction is offered: (i) If the duty limits another subjective right having a physical reference object, the non-objective subjective private right is located at the place where the reference object of the restricted subjective right is found. (ii) If the duty limits a subjective right without a physical reference object, the habitual residence of the bearer of the right should be decisive. A deviation from the designated law through escape clauses (Arts. 4(3), 17 Rome II Regulation), the public policy exception (Art. 26 Rome II Regulation) or mandatory rules (Art. 16 Rome II Regulation) is excluded for methodological reasons. Moreover, a correction is not required as the connecting factor of Art. 4(1) Rome II Regulation leads to just and reasonable results even in constellations with a link to human rights.

Rupp, Caroline S.,Verliebt, verlobt, rückabgewickelt? – Ansprüche bei der Auflösung von Verlöbnissen aus grenzüberschreitender Perspektive (Enamoured, Engaged, Annulled – Broken Engagement Claims from a Cross-Border Perspective), pp. 154 et seq

Even in the twenty-first century, financial claims after a broken engagement to marry play an important role and can cause difficulties, especially in cross-border relationships. Firstly, damages may be claimed for financial losses due to wedding and marriage preparations; secondly, the fate of engagement gifts, especially the ring, needs to be determined. This article examines engagement-related claims under German, French and English law, deriving a suggestion for useful contemporary rules from their comparison. A comparative inquiry into the conflict of laws rules then shows that the current rules pose various problems due to lacunae and disputes. The article develops a proposal to resolve these problems through clear, specifically engagement-related conflict of laws rules.

On 22 March 2019 the Catholic University of Milan will host a seminar (in English) on The International Protection of Adults in the European Union – Improving the Operation of the Hague Convention of 13 January 2000 between Member States.

The event is part of the European Law Institute’s project on The protection of adults in international situations.

The aim of the project is to outline the text of the measures that the European Union could adopt in order to enhance, in cross-border situations, the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The project builds on the idea that the Hague Convention of 13 January 2000 on the international protection of adults, which is currently in force for twelve States (eleven of which are Member States of the Union), provides an excellent framework of cooperation in this area, but that its operation could be further improved regionally through Union’s legislation.

The main proposals prepared by the expert group in charge of the project will be illustrated and discussed in the seminar, in light of the latest developments in this area, including the Conclusions and recommendations adopted at the EC-HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults of 5-7 December 2018 in Brussels.

Speakers include academics, representatives of the Union’s institutions and the Permanent Bureau of the Hague Conference, notaries and government officials.

The agenda of the seminar is available here.

Attendance is free, but those wishing to take part in the seminar are invited to send an e-mail to pietro.franzina@unicatt.it by 10 March 2019 (early registration is recommended).

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint a Research Assistant (Wissenschaftliche/r Mitarbeiter/in) with knowledge of French, Italian, Dutch, or Spanish (edit: and who have completed a German State Exam in Law with an above-average degree). It is a part-time position with 19.92 hours per week (50%), which allows for the completion of a PhD thesis. Provided that the legal conditions are met, the remuneration will be based on pay group 13 TV-L. The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and are given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are welcome. They will be given preferential consideration if they are suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents by 20 March 2019 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.