‘Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders’ by Rishi Gulati has just been published by Cambridge University Press. The author has kindly provided us with the follow summary:

This book addresses some of the most difficult legal challenges that international institutions confront. As is all too evident, we live in a denial of justice age when it comes to the individual pursuit of justice against international organisations (IOs). Victims of institutional conduct are often denied reasonable means of dispute settlement at the international level. Victims are also generally unable to seek justice at the national level due to IO immunities, which aim to secure institutional independence. Access to justice and IO independence are equally important values and satisfactorily realising them both has so far proven elusive. In this book, Rishi Gulati argues that private international law techniques can help allocate regulatory authority between the national and institutional orders in a nuanced manner by maintaining IO independence without sacrificing access to justice. As private international law rules can be adjusted nationally without the need for international action, the solution proposed can be readily implemented, thereby resolving a conundrum that public international law has not been able to address for decades.

The book is divided into five chapters. Chapter 1 provides the basis of, and nature of an IO’s access to justice obligation. It  demonstrates that under international law, IOs must provide ‘appropriate’ modes of dispute resolution to the victims of institutional conduct. Relying on international human rights law in general, and the right to a fair trial in particular, chapter 2 goes on to specify the criteria for assessing the ‘appropriateness’ of dispute resolution mechanisms that should be created at IOs. The discussion does not stop here. Chapter 3 goes on to rigorously apply those criteria to assess dispute resolution mechanisms at IOs, where such mechanisms even exist. It is concluded that where such mechanisms exist, they tend to be deficient. This is the case with several international administrative tribunals created to resolve employment disputes. Alarmingly, in many instances, dispute resolution mechanisms are completely absent, meaning that a denial of justice is a foregone conclusion.

It is thus hardly surprising that more and more, national courts are asked by victims to adjudicate claims against IOs. However, adjudication at the national level is complicated due to the existence of an IO’s jurisdictional immunities before national courts. Chapter 4 considers the nature of institutional immunities, and shows that the application of IO immunities is a conundrum that is yet to be resolved. This chapter considers the latest jurisprudence on the topic. It provides a succinct analysis of all aspects of the law on IO immunities, showing that the manner in which the law is currently applied results in further denials of justice. It is pointed out that no satisfactory solution has been implemented to realise access to justice for victims and an IO’s functional independence simultaneously. Chapter 5 resolves this long-standing international legal challenge. It shows how private international law techniques can be used to realize access to justice in claims against IOs but without compromising on IO independence. This book shows how the various branches of public international law, including international human rights  and international organisations law, do and should interact with private international law with a view to solve a particularly difficult regulatory challenge. The work is not only intended to be academically rigorous, but it seeks to provide real life answers to hard cases.

The war in Ukraine has also affected the lives of legal researchers. The Max Planck Institute for Comparative and International Private Law is extending support to these individuals.

The Institute would like to assist scholars who have had to discontinue their research activities because of the war in Ukraine. Towards this end, the Institute is offering scholarships supporting a stay in Hamburg for research in the field of private law. In addition to office space and access to our library, we can also provide assistance in locating housing.

Affected researchers can contact the Institute’s Welcome Center. The offer is directed at doctoral candidates as well as individuals who have already earned their doctorates.

 

 

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

 

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

 

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

 

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

 

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

 

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

 

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.

NASAMER Law Blog, by Dr. Nüsret-Semahat Arsel International Business Law Implementation and Research Center at Koç University, is an online platform featuring posts about international business law – defined broadly.

The blog has been launched in January this year with the inaugural piece written by Prof. Dr. Klaus Hopt entitled “Corporate Governance in the International Discussion“. The Academic Advisory Board of the blog is comprised of prominent scholars from the Universities of Oxford, Zürich, Singapore, LSE and Koç University.

The Editorial Board would like to invite submissions in the form of opinion & current awareness pieces discussing recent news and developments such as judgments and legislative changes and research pieces reporting on recently published or forthcoming literature such as journal articles and books, as well as on recent academic events such as conferences and workshops.

More information about the submission rules, the Academic Advisory Board, and the Editorial Board can be found on the blog website. For any inquiries, please do not hesitate to contact the editors via nasamerblog@ku.edu.tr.