Attention scholars of international law: The registration for the 2018 summer courses of The Hague Academy of International Law has opened. Over the years, thousands of students and professionals have come to the Peace Palace in The Hague to acquire a deeper understanding of Public International Law and Private International Law. Have a look at the program here:
On Friday, 15 December 2015, the Opening Ceremony of the Humboldt Consumer Law Clinic’s fifth cycle will take place. The ceremony will focus on current developments in the law of general terms and conditions which, from a legal perspective, create new challenges and pose numerous interesting and controversial questions.
“Fundamentals and latest challenges of the control of general terms and conditions”
Speaker: Prof. Dr. Phillip Hellwege, M.Jur. (Oxford), University of Augsburg and Vice President of the European Society for Comparative Legal History
Panelists: Jutta Gurkmann, Federation of German Consumer Organisations, and Martin Freitag Association of the German Construction Industry.
The ceremony will start at 4 p.m. and take place at the Festsaal Luisenstraße 56, 10115 Berlin.
If you wish to participate please register here.
The International Conference “Regulation and Enforcement in the Digital Age” will take place on 16 & 17 November in Nicosia, Cyprus.
The conference sessions are the following:
Copyright law in the digital era
Internet regulation and enforcement
Special issues in online data protection
Data protection and consumer rights
Emerging trends and challenges of e-commerce and consumer law
Cybersecurity and Internet regulation
PhD Students Special Session: Internet regulation: New challenges, new ideas.
For more info, press here
It is our pleasure to announce the third edition of the International Association of Procedural Law (IAPL) – Max Planck Institute Luxembourg Summer-School, which will take place in Luxembourg from the 1st to the 4th of July 2018.
The 3rd edition of the Summer School has chosen to explore the topic of “Privatizing Dispute Resolution and its Limits”, where “privatizing” is understood in a broad sense. Different avenues can be envisaged thereto related. The first one focuses on the defense of public interests by means of private litigation; a second comprises the mechanisms for dispute resolution alternative to State justice; the third one deals with the commercialization of the judicial system. Applications under the first prong shall address the case of litigation in the interest of the broader (public) interest of the law: a regulatory approach that in Europe has been adopted in the context of competition law, intellectual property law, consumer protection, data protection and to some extent, also for the defense of the environment, in the search of avenues for the extraterritorial application of mandatory law. Under the second prong applications shall refer to commercial and investment arbitration, sports arbitration, consumer ADR, online dispute resolution for domain names controversies and the like. The third prong candidates shall focus on the development of private access to justice (litigation insurance, third party funding, etc), ”marketization” of the bar activity, emergence of new private actors with the legaltech, etc. Proposals must take into account that for different reasons all the phenomena alluded to are subject to limits: to be feasible, the extraterritorial application of mandatory national or regional law requires procedural and substantial preconditions such as international jurisdiction over the defendant, or the support of an appropriately designed choice of law rule. As for alternative mechanisms of dispute resolution, in spite of their detachment from the control of State courts important interfaces remain, as demonstrated by the possibilities to apply for the annulment of the arbitral award or its non-recognition; or by the on-going contestation of CAS decisions before the ECHR. Finally, although schemes of third party funding and the like facilitate access to justice for single claims that wouldn’t be brought individually to the court, they raise many controversies and challenges while remaining unregulated.
All papers submitted to the 2018 Summer School should delve into one or several of these issues.
Up to 20 places will be available for applicants having procedural law and/or dispute resolution mechanisms as their main field of academic interest and meeting the conditions explained in the dedicated website.
Please follow this link for the online application.
The 15th edition of the leading text on private international law, Cheshire, North & Fawcett: Private International Law, has been released.
This new edition is edited by Paul Torremans, Uglješa Gruši?, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, and Lara Walker, with James J. Fawcett as the Consultant Editor. It provides comprehensive coverage of the full range of private international law topics; offers not only in-depth academic treatment of the principles, but also an examination of important commercial topics within the subject, such as the private international law treatment of contracts, jurisdiction and enforcement of judgments; and written by an expert team with a wealth of both academic and practical experience.
The new edition of this well-established and highly regarded work has been fully updated to encompass the major changes and developments in the law, including coverage of the Recast Brussels I Regulation which came into force in 2015. The book is invaluable for the practitioner as well as being one of the leading students’ textbooks in the field, giving comprehensive and accessible coverage of the basic principles of private international law.
It offers students, teachers and practitioners not only a rigorous academic examination of the subject, but also a practical guide to the complex subject of private international law. Written by an expert team of academics, there is extensive coverage of commercial topics such as the jurisdiction of various courts and their limitations, stays of proceedings and restraining foreign proceedings, the recognition and enforcement of judgments, the law of obligations with respect to contractual and non-contractual obligations. There are also sections on the various aspects of family law in private international law, and the law of property, including the transfer of property, administration of estates, succession and trusts.
The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles: Read more
The XXIII Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL) will take place at the University of Ferrara on 7 and 8 June 2018. Read more
I was recently asked to shortly analyse the key issues of the UK government’s policy paper on providing a cross-border civil judicial cooperation framework with the EU after Brexit from a dispute resolution perspective. The text of the inteview is available here.
The University of Sydney Law School is hosting a conference on Commercial Issues in Private International Law on 16 February 2018. The organisers have provided the following information about the conference’s theme: Read more
The first ruling on Regulation (EU) No 650/2012 was rendered on Thursday 12. These are the facts of the case as summarized by the Court:
Ms Kubicka, a Polish national resident in Frankfurt an der Oder (Germany), is married to a German national. Two children, who are still minors, were born from that marriage. The spouses are joint owners, each with a 50% share, of land in Frankfurt an der Oder on which their family home is built. In order to make her will, Aleksandra Kubicka approached a notary practising in Slubice (Poland).
Ms Kubicka wishes to include in her will a legacy ‘by vindication’, which is allowed by Polish law, in favour of her husband, concerning her share of ownership of the jointly-owned immovable property in Frankfurt an der Oder. She wishes to leave the remainder of the assets that comprise her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.
She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code, since such a legacy would entail difficulties in relation to the representation of her minor children, who will inherit, as well as additional costs.
On 4 November 2015, the notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka on the ground that creation of a will containing such a legacy is contrary to German legislation and case-law relating to rights in rem and land registration, which must be taken into consideration under Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 and that, as a result, such an act is unlawful.
The notary’s assistant stated that, in Germany, a legatee may be entered in the land register only by means of a notarial instrument containing an agreement between the heirs and the legatee to transfer ownership of the immovable property. Foreign legacies ‘by vindication’ will, by means of ‘adaptation’, be considered to be legacies ‘by damnation’ in Germany, under Article 31 of Regulation No 650/2012. This interpretation is clear from the explanatory memorandum of the German law which amended national law in accordance with the provisions of Regulation No 650/2012 (Internationales Erbrechtsverfahrensgesetz (Law on international succession proceedings), of 29 June 2015, BGBl. I p. 1042).
On 16 November 2015, Aleksandra Kubicka submitted to the notary an appeal pursuant to Article 83 of the Law on notaries against the decision refusing to draw up a will containing such a legacy ‘by vindication’. She claimed that the provisions of Regulation No 650/2012 should be interpreted independently and, in essence, that none of those provisions justify restricting the provisions of succession law by depriving a legacy ‘by vindication’ of material effects.
Since her appeal to the notary was not upheld, Aleksandra Kubicka brought an appeal before the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland).
The referring court considers that, pursuant to Article 23(2)(b) and (e) and Article 68(m) of Regulation No 650/2012, legacies ‘by vindication’ fall within the scope of succession law. However, it is uncertain to what extent the law in force in the place where the asset to which the legacy relates is located can limit the material effects of a legacy ‘by vindication’ as provided for in the succession law that was chosen.
Given that, under Article 1(2)(k) of Regulation No 650/2012, the ‘nature of rights in rem’ is excluded from the scope of the regulation, legacies ‘by vindication’, as provided for by succession law, cannot create for an asset rights which are not recognised by the lex rei sitae of the asset to which the legacy relates. However, it is necessary to determine whether that same provision also excludes from the scope of the regulation possible grounds for acquiring rights in rem. In that regard, the referring court considers that the acquisition of rights in rem by means of a legacy ‘by vindication’ is governed exclusively by succession law. Polish legal literature on the matter takes the same position, while the explanatory memorandum of the German draft law on international succession law and amending the provisions governing the certificate of succession and other provisions (Gesetzesentwurf der Bundesregierung, BT-Drs. 17/5451 of 4 March 2015) provides that it is not obligatory, in the context of Regulation No 650/2012, for German law to recognise a legacy ‘by vindication’ on the basis of a will drawn up according to the law of another Member State.
Referring to Article 1(2)(l) of Regulation No 650/2012, the referring court also wonders whether the law governing registers of rights in immoveable or moveable property may have an impact on the effect of a legacy under succession law. In that regard, it states that if the legacy is recognised as producing material effects in matters relating to succession, the law of the Member State in which such a register is kept would govern only the means by which the acquisition of an asset under succession law is proven and could not affect the acquisition itself.
As a result, the referring court considers that the interpretation of Article 31 of Regulation No 650/2012 also depends on whether or not the Member State in which the asset to which the legacy relates is located has the authority to question the material effect of that legacy, which arises under the succession law that has been chosen.
In those circumstances the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 1(2)(k) and (l), and Article 31 of Regulation (EU) [No 650/2012] be interpreted as permitting refusal to recognise the material effects of a legacy ‘by vindication’ (legatum per vindicationem), as provided for by succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?’
The CJEU answer is:
Article 1(2)(k) and (l) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.
Conclusions were written by Advocate General Y. Bot and delivered on May 17, 2017; C. Toader acted as Rapporteur.