New resource on New Zealand conflict of laws

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The University of Otago recently set up an online platform dedicated to the conflict of laws in New Zealand: www.otago.ac.nz/conflicts/index.html

The platform includes (1) a reference database of New Zealand scholarship on the conflict of laws, originally created by Professor Elsabe Schoeman at Auckland University, (2) a blog, and (3) links to relevant sources and materials.

Feedback and suggestions on the site are much appreciated. In particular, if you are aware of any relevant materials that are currently missing from the database, I would be very grateful if you could let me know.

Issue 2017.4 of Dutch Journal on Private International Law (NIPR)

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The fourth issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 developed by the Hague Conference on Private International Law, the interpretation of Article 9(3) of the Rome I Regulation by the Court of Justice of the European Union in the case Nikiforidis v. Republik Griechenland, the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations, and new developments in China’s recognition and enforcement of foreign judgments.

Matthijs ten Wolde & Kees de Visser, ‘Editorial’, p. 725-726.

Akinwumi Ogunranti, ‘The Hague Principles – a new dawn for developing countries?’, 727-746

This paper focuses on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 (hereafter: Principles) developed by the Hague Conference on Private International Law. It makes two claims: that Article 2(4) of the Principles which permits parties to make an unrelated choice of law in international contracts, without generally protecting weaker parties, may not be favourably received by developing countries. Second, that Article 3 of the Principles on non-state law may also not be viewed favourably by developing countries because such provisions are always seen with distrust. In effect, this paper examines the likely reactions of developing countries to these pivotal provisions of the Principles. It then asks the question of whether a new dawn has arrived in private international legislations relating to choice of law or whether developing countries should be charting roads that lead to more places than just The Hague.

A.E. Oderkerk, ‘Buitenlandse voorrangsregels in de context van de Griekse crisis: geen rol voor het unierechtelijk beginsel van loyale samenwerking’, p. 747-758

In its ruling of 18 October 2016, the Court of Justice of the European Union (CJEU) answers a number of questions related to the interpretation of Article 9(3) of the Rome I Regulation, two of which confirm the current legal doctrine on this matter. Firstly, it is confirmed that Article 9 should be interpreted restrictively; no other overriding mandatory rules than those of the forum State or the State where the obligations in the agreement are (to be) fulfilled can be applied. Secondly, it is acknowledged that a national court may take into account other overriding mandatory rules as facts in so far as this is in accordance with the lex causae. In this ruling the Court departs from the doctrine with regard to the temporal scope of the Regulation, holding that the phrase ‘the conclusion of the agreement’ in Article 28 must be interpreted autonomously. The Court also clarifies under which circumstances a long-term contract concluded before 17 December 2009 may fall within the temporal scope of the Regulation. Finally, it is of interest that the Court takes the position that the principle of loyal cooperation has no influence on the (strict) interpretation of Article 9(3).

Just van der Hoeven, ‘Zachte conclusies over de betekenis van een harde Brexit voor het internationaal personen- en familierecht’, p. 759-771

This article gives an overview of the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations. It examines the applicability of various international instruments in these areas, and gives a brief answer to the question how the current EU regulations differ from these international instruments.

Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’, p. 772-789

In the case of Kolmar Group AG v. Jiangsu Textile Co. Ltd. (the Kolmar case), a Chinese court has for the first time recognized and enforced a foreign civil judgment based on reciprocity. This article regards this case as a turning point of reciprocity in China’s recognition and enforcement of foreign judgments. Before 2016, the reliance on treaty-based and factual reciprocity led to some defects in China’s judicial practice, which could be attributed to the strict standards of reciprocity and deficient judicial interpretations. Through the Belt and Road initiative, China is seeking to improve international transactions between China and foreign countries – including some EU countries. In line with this development, the Chinese Supreme People’s Court seems to be transforming the strict criteria of reciprocity, adopting presumed reciprocity in its judicial practice. This article argues that execution of the Belt and Road initiative, establishing an efficient court reporting system and participating in international conventions are essential to China’s judicial reform.

Proposed U.S. law could moot the Microsoft Ireland case — and have implications for private international law

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Professor Jen Daskal writes on Just Security about a potential legislative solution to the Microsoft Ireland case pending in the U.S. Supreme Court, which presents the question of whether a U.S. warrant requires Microsoft to hand over a user’s data that Microsoft stores in Ireland:

“A bipartisan group of Senators today introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act—a bill that moots the pending Supreme Court Microsoft Ireland case and authorizes the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the Microsoft Ireland case. It also has the support of many other tech companies.

As it should.

…”

Read the full post here.

For Professor Daskal’s thoughtful analysis of the conflicts of laws issues presented in the Microsoft case and their relationship to private international law issues, see her earlier analysis here.

German Workshop on Cross-Border Enforcement in the EU (“IC²BE”)

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On Friday, 13 April 2018, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. As a result, it is intended to create a database of national case law. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen), Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, such as Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Partcipation is free of charge, but requires a registration. For further information about the program and the process of registration, please click here.

Workshop on the EU Matrimonial and Partnership Property Regulations at the University of Strasbourg (France), 7 February 2018

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On February 7th, a workshop on the EU Matrimonial and Partnership Property Regulations will take place at the University of Strasbourg. Coordinated by Prof. Estelle Naudin and Delphine Porcheron, the workshop will explore the strategies of anticipation provided by the new regulations and some of the practical issues raised by French-German situations.

Speakers include :

  • Richard Crône, Notary in Paris, Member of the Institut Notarial Europe et International (INEI)
  • Alain Devers, University of Lyon III
  • Claire Farge, Lawyer, Member of the Legal Committee of FNDP
  • Michel Farge, University of Grenoble-Alpes
  • Eric Fongaro, University of Bordeaux
  • Estelle Gallant, University Paris I
  • Estelle Naudin, University of Strasbourg
  • Delphine Porcheron, University of Strasbourg

Click here to access the full program.

EU Procedural Law Study: Consumer Protection General Report published by the European Commission

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On 26 January 2018, the European Commission published the second General Report of the study on procedural law undertaken by the Max Planck Institute Luxembourg. This strand of the study concerned the effect of divergences in national procedural laws on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law.

For the first strand of the study, see here.

More information is available here.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1/2018: Abstracts

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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles: Read more

Commentary on the Service Regulation

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The first Commentary on the Service Regulation (1393/2007) in Greece has just been published. The volume sheds light on all aspects of cross border service within the EU, approaching the topic both from a domestic and an EU-case law viewpoint. Read more

Fourth Issue of 2017’s Revue Critique de Droit International Privé

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The last issue of the “Revue critique de droit international privé” will shortly be released. It contains several casenotes and one article, authored by Professor Andrea Bonomi (Lausanne University): « La compétence internationale en matière de divorce. Quelques suggestions pour une (improbable) révision du règlement Bruxelles IIbis ».

A full table of contents is available here.

The CJEU on the scope of the Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims.

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On 14 December 2017  the CJEU has ruled on the scope of the Regulation (EC) No 805/2004  European Enforcement Order for uncontested claims – Case C-66/17.

As stated by the CJEU, ‘Article 4(1) and Article 7 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims must be interpreted as meaning that an enforceable decision on the amount of costs related to court proceedings, contained in a judgment which does not relate to an uncontested claim, cannot be certified as a European Enforcement Order.’

In the meantime, given the definition of an uncontested claim, a EEO can be issued only in relation to a condemnatory decision, not in relation to a declaratory one.

Facts and main proceedings

Mr and Mrs Chudas had brought a declaratory action before a Polish court of first instance to establish whether they had acquired the right of ownership over a motor vehicle. The DA Deutsche Allgemeine Versicherung Aktiengesellschaft (Germany) was summoned to appear in the proceedings as defendant, but did not appear.

The court delivered a default judgment, in which it held that Mr and Mrs Chuda? had acquired the right of ownership over the motor vehicle and ordered DA Deutsche Allgemeine Versicherung Aktiengesellschaft to pay the costs of the proceedings. Mr and Mrs Chudas then initiated the procedure in order to have to the costs of the proceedings certified as a European Enforcement Order.

The District court had doubts as to whether the type of decision felt within the substantive scope of the Regulation No 805/2004 and referred following question to the Court of Justice for a preliminary ruling.

Question for a preliminary ruling

[24] ‘Should Article 4(1) of Regulation … No 805/2004 …, read in conjunction with Article 7 of that regulation, be interpreted as meaning that a European Enforcement Order certificate may be issued in respect of a decision concerning reimbursement of the costs of proceedings contained in a judgment in which a court has established the existence of a right?’

Main considerations

According to the CJEU,

…

[31] Article 4(1) of that regulation defines a ‘judgment’ as encompassing any judgment given by a court or tribunal of a Member State, including ‘the determination of costs or expenses by an officer of the court’. Second, an enforceable decision on the amount of costs related to the court proceedings amounts, in principle, to a ‘claim’ within the meaning of the definition of that term provided by Article 4(2) of the regulation.

[32]  However, as has been noted in paragraph 29 of the present judgment, under the specific provisions governing costs related to court proceedings laid down in Article 7 of Regulation No 805/2004, a decision on the amount of such costs cannot be certified as a European Enforcement Order independently of a judgment on an uncontested claim. In so far as the decision on those costs is intrinsically linked to the outcome of the principal action, which alone justifies the certification of a judgment as a European Enforcement Order, the definitions laid down in Article 4 of that regulation cannot affect the applicability of the regulation.