The Hague Conference has posted its annual report 2018, in traditional pdf and even more traditional paper format. Much space is taken up by reminiscences of the 125th anniversary , including the publication of several speeches. Beyond that are reports of other events, as well as general information, some more useful (new ratifications and accessions in 2018), some perhaps less so (the number of followers on twitter).
The Swiss Institute of Comparative Law has just published the proceedings from its 30th Private International Law Day, which focused on digital platforms and their implications for the conflict of laws. The following teaser, as well as the volume’s table of contents, have been kindly provided by its editor and main organiser of the conference, Ilaria Pretelli:
Since its creation in the early 1990s, the World Wide Web has intensified its role and skills at too speedy pace for any sober reflection in human sciences.
The exponential rise of tech oligopolies is also a consequence of the “statelessness” of the platform economy, a circumstance that explains the great interest of the subject for lawyers and the choice of this topic for the 30th day conference in Private International Law of the Swiss Institute of Comparative Law, held on June 28th, 2018 whose proceedings, enriched by further contributions, are collected in the 86th volume of its red series.
The disruptive potential of the platform economy challenges traditional approaches based on the bilateral legal relationship and its geographical location.
It is worth asking whether the basic principles of private international law can be adapted to the immateriality of the digital space, whether a new revolution in the theory of private international law can be expected, or whether private international law is an inapt tool for platform governance and the only promising way is that of a multilateral and harmonising approach.
Collecting the proceedings of the conference, the 86th volume of our red series aims to contribute, through a multidisciplinary analysis, to the collective effort to build a legal theory adapted to digital platforms.
By presenting the first national and supranational responses to the challenges of the platform economy – still disordered and sometimes contradictory – the book attempts to synthesise the main trends in the legal developments that are forthcoming in various legal fields, with a focus on the need to protecting weak parties (workers, consumers, small and medium businesses).
Please see the the last issue of 2018 of the Belgian Journal of Private International Law here.
Besides the latest judgments by the Court of Justice of the European Union, it also contains case law of the Belgian Constitutional Court and courts of appeal. The cases are in Dutch or French.
The judgment of the Constitutional Court (of 11 October 2018) concerned the response to a question posed to this court by the Commercial Court of Liège (p. 14 pof the issue). It involved the so-called cautio judicatum solvi. The question was whether the fact that only foreign national plaintiffs can be requested to give a warranty for costs infringes the Belgian Constitution, particularly its Articles 10 and 11 guaranteeing equality and prohibiting discrimination. The Court referred to the limitations that the Court of Justice of the EU had already set to the application of the cautio (it cannot be used against EU citizens). Moreover, the provision only applies in the absence of international conventions eliminating the cautio.The issue in this case was that Belgian plaintiffs living abroad (in Ecuador in the current instance), even if they have no assets in Belgium cannot be subjected to such warranty. The court found that the cautia juricatum solvi (Art. 851 of the Code of Civil Procedure) infringes the Constitution. The differentiation in treatment is not justifiable as it is not the plaintiff’s nationality but his or her residence outside Belgium and lack of property in Belgium that can cause the defendant to fear that he or she will not be able to recover costs. The Court left the provision intact and gave the legislator until 31 August 2019 to fix it.
* In the meantime, on 24 Januari 2019, a legislative proposal was submitted to delete the cautio judicatum solvi from the Code of Civil Procedure.
Other judgments deal with the attribution of Belgian nationality, with parentage and with the recognition of marriages.
A judgment by the Court of Appeal of Brussels (judgment of 10 August 2018) addresses the recognition of the parentage of twins born out of a surrogate mother in California (p. 15 of the issue). The Californian judgment establishing the parentage of two men (one Belgian and one French) was at issue. The Court of appeal recognised the Californian judgment, thus recognising both fathers as parents. The Court considered two grounds for refusal (under Art. 25 of the Belgian Code of Private International Law). First it found that the recognition of the judgment would not amount to a result that was manifestly contrary to public policy. The Court on the other hand found that the intending fathers did attempt to evade the law that would have been applicable, i.e. Belgian law as the intended father whose parentage was at issue had Belgian nationality (and this law governs parentage according to Art. 62 of the Belgian Code of Private International Law). However, the Court, after considering the particular situations of the children and the facts surrounding the case, found that the best interests of the children had the result that the parentage should be recognised in this case.
* See also the case note (in French) by Patrick Wautelet entitled “De l’intérêt supérieur de l’enfantcomme facteur de neutralisation de la fraude à la loi” (On the best interests of the child as a neutralising factor for evasion of the law) at p. 61 of the issue.
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).
The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process.
Ronald Brand’s new article discusses the advantages and disadvantages of each of the 2018 draft Convention text as well as the alternative approach. It then suggests that, no matter which approach one considers to be better, the 2019 Diplomatic Conference should begin with an awareness of both options, and an understanding of the advantages and disadvantages of each, and move forward with a clear decision that the option chosen is the best alternative. Such consideration may (1) lead to the conclusion that the choices already made are the best for a multilateral treaty; (2) result in a determination that an alternative approach is a better option; or (3) demonstrate that one approach works best for some legal systems while another approach works best for other legal systems – leading to dual texts that could form the bases for differing bilateral and multilateral treaty relationships across the globe, while still improving the global framework for the recognition and enforcement of foreign judgments.
It is available 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.
Registration for the Second German Conference for Young Scholars in Private International Law, which will be held at the University of Würzburg on 4 and 5 April 2019, are still possible for another two weeks (until 10 March 2019). Further information can be found in this flyer and on the conference website; registrations can be completed via this online form.
The conference will be followed by an international workshop, further information on which can be found here.
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).