I just was alerted to a proposal that was put forward to create an International Arbitral Tribunal on business and human rights.  The authors of the proposal are Claes Cronstedt, Robert C Thompson, Rachel Chambers, Adrienne Margolis, David Rönnegard and Katherine Tyler, all (save for Ms Margolis, a journalist, and Dr Rönnegard, a philosopher and economist) one-time or current private practice lawyers with a background and/or practice in human rights and CSR.

The initiative seeks to respond, in part, to the US Supreme Court’s decisions in Kiobel v Royal Dutch Petroleum and Daimler AG v Bauman.  In short, it is now difficult to plead international human rights violations against corporations in U.S. courts.  As I discuss in a forthcoming article, foreign courts may move in to fill the gap.  This proposal raises another question:  Are international tribunals the right forum for such cases?

Anna-Lisa Kühn has authored a book on the imbalance in joint and several debt in private international law  (“Die gestörte Gesamtschuld im Internationalen Privatrecht. Am Beispiel einer Spaltung des Mehrpersonenverhältnisses zwischen deutschem und englischem Recht”). The book is written in German and has been published by Mohr Siebeck.

The abstract reads as follows:

Anna-Lisa Kühn analyzes a situation in which a creditor has a claim against several debtors whose obligations are governed by different legal systems and who would be liable for the same claim could one of them not rely on an exemption from liability, the impact of which is assessed differently by the legal systems involved. She shows how this should be treated under the Rome I and Rome II Regulations.

More information is available here.

On 23 and 24 October 2014 Bettina Nunner-Krautgasser and Thomas Garber, both from the University of Graz, will host a conference on the recast Brussels I Regulation (“Die neue EuGVVO – Verbesserung des Rechtsschutzes im Europäischen Binnenmarkt?”). The conference will take place in Graz (Austria). The conference language will be German. More information is available on the conference website.

The programme reads as follows:

Thursday, 23 Oktober 2014

• 14:00 Welcome notice
• 14:30 Vom Heidelberger-Report zum Kommissionsvorschlag, Robert Fucik (Vienna)
• 15:00 Der Anwendungsbereich der neuen EuGVVO, Bartosz Sujecki (Utrecht)
• 15:30 Die neue EuGVVO und die Schiedsgerichtsbarkeit, Petra Hietanen-Kunwald, Riikka Koulu & Santtu Turunen (Helsinki)
• 16:00 Discussion
• 16:30 Break
• 17:00 Änderungen im Bereich der internationalen Zuständigkeit, Jan von Hein (Freiburg im Breisgau)
• 17:20 Änderungen in Versicherungs-, Verbraucher- und Arbeitssachen, Ale Gali (Ljubljana)
• 17:40 Gerichtsstandsvereinbarungen, Bettina Nunner-Krautgasser (Graz)
• 18:00 Discussion

Friday, 24 Oktober 2014

• 10:00 Rechtshängigkeit, Alan Uzelac (Zagreb)
• 10:30 Einstweiliger Rechtsschutz, Vesna Rijavec & Sascha Verovnik (Marburg/Graz)
• 11:00 Discussion
• 11:30 Anerkennung und Vollstreckung, Matthias Neumayr (Salzburg/Wien)
• 12:15 Discussion
• 12:45 Break
• 13:45 Änderungen durch die Schaffung eines Einheitlichen Patentgerichts und des Benelux-Gerichtshofs, Bartosz Sujecki (Utrecht)
• 14:15 Die neue EuGVVO und der Rest der Welt, Gottfried Musger (Wien)
• 14:45 Discussion

The European Commission has published an invitation to tender relating to an economic study on the impact of differences in insurance contract law on cross-border trade in the insurance sector. Deadline for submissions is 28 October 2014. More information is available here and here.

In line with its predecessors, Volume XV (2013/2014) of the Yearbook of Private International Law offers a comprehensive insight into the contemporary trends of private international law in terms of both theoretical thinking and practical achievements. The volume includes two contributions from prominent scholars on freedom of movement of public documents and records within the EU, a whole section on Brussels Ibis Regulation, a dozen national reports on recognition and enforcement of foreign judgments outside the EU from Turkey to Australia, from Russian Federation to Egypt, from South Korea to Commonwealth Africa as well as an overview of the new codification in Albania. Two essays on internal conflict of laws and on the challenges posed by cross-border coordination in insolvency matters complete this valuable collection.

To see the table of contents click here.

The new issue of Revue Hellénique de Droit International 2/2013 [Vol. 66] was published earlier this month.

Table des matières

Première Partie – Articles

Dossier spécial

La Proposition de Règlement du Conseil du 16 mars 2011 relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions en matière de régimes matrimoniaux

Partie II

Chryssa Tsouca – Le droit applicable aux régimes matrimoniaux à défaut de choix des époux                         249

Nikolaos Davrados – Jurisdictional issues concerning matrimonial property regimes                        259

Deuxième Partie – Études

Evangelos Vassilakakis – International jurisdiction in insurance matters under Regulation Brussels I            …………………………………………………………………………. 273

Anthi Pelleni – Obligation to assess the creditworthiness of the consumer and the responsibility of banks       …………………………………………………………………………. 295

Nicholas M. Poulantzas – The European Union and the Exclusive Economic Zone of Mediterranean States: Does a duty to cooperate exist? ………………………………………………………   311

Troisième Partie – Jurisprudence

Georgios Panopoulos – La jurisprudence grecque de droit international privé en 2012                      319

Ioannis Prezas, Lisa Böhmer & Inès el Hayek – Centre International pour le Règlement des Différends relatifs aux investissements (CIRDI). Chronique du contentieux 2012 ………   335

Quatrième Partie – Législation et documents

International agreements ratified by the Hellenic Republic in 2012 …..   379

Cinquième Partie – Varia

Antoine Maniatis – Approche syncrétiste du droit para la sociologie du droit et l’anthropologie du droit        …………………………………………………………………………. 385

Fethullah Bayraktar – La question du drone en droit international ….   399

Jaques Bipele Kemfouedio – L’impact juridique du financement international des élections en Afrique : réflexions sur le cas de l’élection présidentielle ivoirienne de 2010 …………….   417

Pallavi Kishore – Le tribunal international de Tokyo pour les crimes de guerre commis sur des femmes : jugement de l’esclavage sexuel organisé par l’armée japonaise ………………..   447

Haroune Ould Ahmed – Les réserves à caractère religieux ……………..   461

Stefanos Vlachopoulos – The translation of legal texts: To what extent can functionality be creative?            …………………………………………………………………………. 471

Sixième Partie – Notes bibliographiques

Kalliopi Makridou & Georgios Diamantopoulos (eds), Issues of Estoppel and Res Judicata in Anglo-American and Greek Law (Tonia Korka) ……………………………………………..   487

Ingrid Rossi, Legal Status of Non-governmental Organizations in International Law (Tonia Korka)                489

Ouvrages reçus ……………………………………………………………………   493

RHDI 66 (2013)

The European Commission has published an invitation to tender relating to a study on the service of documents. The study shall analyze the Member States’ relevant provisions and practices and minimum standards. Deadline for submissions is 30 October 2014. More information is available here and here.

The Call for Papers for Vol. 18 (2013-2014) of the Spanish Yearbook of International Law (SYbIL), in now open. Manuscripts dealing with any topic of interest in the field of Public and Private International Law and International Relations should be submitted to the editors by 31 October 2014. The manuscripts shall conform to the Style Guide of the SYbIL (available here) and must be submitted to the Editor’s address at editor@sybil.es.

A few words on the journal

The Spanish Yearbook of International Law (SYbIL) was founded in 1991, and is edited by the Asociación Española de Profesores de Derecho Internacional y relaciones Internacionales (AEPDIRI). It provides an annual report on new developments in international law . From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy.

Since its first volume, the Yearbook has endeavored to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website (www.sybil.es) tries to offer the contents of this new epoch of the Yearbook as well as all the old printed volumes of the SYbIL (except last volume, by the moment). This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Yearbook publishes contributions in English from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice. The General Articles section gives authors an opportunity to submit original manuscripts (15,000-18,000 words) on a broad range of topics in international law and international relations.

Note: The SYbIL is a double blind peer-review publication. 

Prof. Adrian Brigg’s new ouvrage on PIL, of more than 1.000 pages and which has been described as “a major restatement of the rules of Private International Law in the English Courts”, is about to appear at OUP.

The book offers a restatement of European and English Private International Law as it applies in the English courts. The author has set out to create a contemporary approach to private international law which is distinguished from the traditional approach of describing private international law through its common law foundations. The author places European Regulations, and related statutory material, at the front and centre of the book, reorganising private international law according to the principles that the law is increasingly European and decreasingly insular. As such the work constitutes an approach to the area which is essential for litigators dealing with questions of private international law influenced by forty years of European legislation. The in-depth discussion will also be valuable to academics specialising in private international law. Written by an academic who is also a practising barrister, this book seeks to highlight the techniques and principles which provide the hidden infrastructure and support mechanisms for the private international law rules of European law, as well as the remaining standing of the common law rules of private international law.

The book will be useful to practising lawyers tackling issues of private international law as it now is, after forty years of European legislation, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law. Written by an academic who is also a practising barrister, this book seeks to highlight the techniques and principles which provide the hidden infrastructure and support mechanism for the private international law rules of European law, as well as (albeit second) for the common law rules of private international law.

The release of the book is expected next month; the table of contents is already available here.

The latest issue (September/October) of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains the following articles:

• Christian Schall/Johannes Weber: “The precautionary choice of the law applicable to divorce according to Rome III”

The Regulation (EU) No. 1259/2010 (Rome III) has put conflict of law rules in cross-border divorce cases on a new footing. By implementing a wide range of possibilities to designate the applicable law, Rome III establishes party autonomy as a key principle in international divorce law. This article focuses on contractual choices of law prior to divorce proceedings and analyses substantial and formal provisions of choice of law clauses in marriage contracts.

• Deniz Halil Deren: “The effect of a Swiss insolvency on domestic proceedings”

Foreign insolvency proceedings can force a temporary stay of domestic court proceedings. In respect of insolvency proceedings in Member States of the EU, Article 15 EIR (Insolvency Regulation (EC) 1346/2000) provides for a temporary stay of domestic court proceedings; for insolvency proceedings in non-Member States, the governing provision is § 352 InsO (German Insolvency Act). This article discusses whether the requirements of § 352 InsO are met in the event of a Swiss insolvency (Konkurs) as per Article 197 et seq SchKG (Swiss Insolvency Act). This question is of current importance in light of the recent judgment by the Bundesgerichtshof (German Supreme Court) of December 2011 which rejects the view that domestic court proceedings should be stayed following a Swiss moratorium (Nachlassstundung) under Article 293 et seq SchKG (old version). The article takes into account the new Swiss provisions on moratoria, Article 293 et seq SchKG (new version, in force since 1 January 2014).

• Robert Arts: “On the applicability of Regulation (EC) No. 1346/2000 – No unwritten requirement for a connection to more than one Member State to constitute international jurisdiction pursuant to Art. 3 (1) InsReg”

After confirming the applicability of the Insolvency Regulation on actions to set transactions aside in its landmark Seagon-decision, the ECJ now answers the remaining question of whether this applicability requires the defendant to be the resident of a Member State. After examining its wording and purpose as well as considering the practical implications, the Court concludes that the application of the Regulation does not necessitate such an unwritten connection to a second Member State.

Beyond the scope of application of Regulation (EC) No. 1346/2000 itself, the decision has bearing on the underlying issue of whether or not the EU law-maker does have the competence to regulate relationships between individual Member States and third states. The Court’s interpretation of Art. 85 TFEU does assume the possibility of such a competence in principle.

• Felix Koechel: “When is the jurisdiction of the court first seised deemed to be established within in the meaning of Art. 27 of the Brussels I Regulation?”

The question when the jurisdiction of the court first seised is deemed to be established is vital for the coordination of parallel proceedings under Art. 27 of the Brussels I Regulation (Brussels I). However, a full reply to the question has yet to be achieved, as recent references for a preliminary ruling to the ECJ by, respectively, the French Cour de cassation, the German Higher Regional Court of Munich and the German Federal Supreme Court demonstrate. In particular, it is unclear whether it is necessary that the court first seised has impliedly or expressly rendered a decision on the issue of jurisdiction. Answering to the question referred by the Cour de cassation, the ECJ held that jurisdiction is deemed to be established within the meaning of Art. 27 (2) Brussels I if the requirements of submission according to Art. 24 Brussels I have been met before the court first seised. In that case, the second court must not await a decision of the court fist seised before declining jurisdiction according to Art. 27 (2) Brussels I. Contrary to the ECJ’s decision, the second court should be requested to await a decision of the court first seised on its jurisdiction when applying Art. 27 Brussels I, especially when the first court might assume jurisdiction according to Art. 24 Brussels I. The main proceedings in the present case also gave rise to questions regarding the court’s obligation to stay proceedings and decline jurisdiction on its own motion under Art. 27 Brussels I. Contrary to the current concept set forth in Art. 27 Brussels I, under Art. 29 of the Brussels I Recast not only the legal requirements for the existence of this obligation but also the procedure to be followed by the second may be should be established autonomously.

• Wolfgang Hau: “Is there an appeal in law based on a violation of foreign law?”

Under the traditional German rules of civil procedure it was well established that provisions of foreign law were rules of law and not questions of fact. Nevertheless, the Federal Court of Justice would not review the application of foreign law by lower courts. In 2009 the relevant provision in the Code of Civil Procedure (§ 545) was modified. This was widely perceived as good reason to recede from the traditional rule of non-review and to allow an appeal in law based on a violation of the applicable foreign law. However, the Federal Court of Justice has recently refused to draw this conclusion from the new wording of § 545. This article argues that the correctness of this decision is doubtful and that the jury (i.e. the Federal Constitutional Court) is still out.

• Hans Jürgen Sonnenberger: “Die internationalprivatrechtliche Behandlung der Zession einer Kaufpreisforderung aus einem der CISG unterliegenden Kaufvertrag und der anschließenden Legalzession im grenzüberschreitenden Verhältnis Käufer-Verkäufer-Factor-Warenkreditversicherung”

The judgment of the Higher Regional Court (Oberlandesgericht) Oldenburg concerns the law applicable to a debtor – assignee (by operation of law) relationship in the case of successive cessions in the period prior to application of the Rome I Regulation. The cessions relate to claims originating from a sales contract subject to the CISG and arose as a result of factoring between seller and factor and performance between factor and insurance carrier due to trade credit insurance. The focus of the Higher Regional Court’s statements is put on private international law issues concerning the applicable law, to which the following comments will be limited. Moreover, the Higher Regional Court had to consider a set-off by the purchaser, the private international law aspects of which will also be addressed briefly.

• Dirk Looschelders: “The Legal Situation of Commercial Heir Locators in German-Austrian Legal Relations”

The legal situation of commercial heir locators differs in Germany and Austria. The BGH rejects a right of the heir locator to reimbursement for expenses in negotiorum gestio, whereas the OGH has repeatedly recognized such a claim. Therefore, the heir locator’s rights decisively depend on the applicable law pursuant to Art. 11 of the Rome II Regulation. In its decision the LG München I has referred to the place of the heir locator’s initial activities. A preferable point of contact is however the location of the estate. In the present case both approaches lead to the application of Austrian law. The Austrian courts allow the heir locator a reimbursement amounting to 30% of the heir’s proportional inheritance right. Though this conflict with the principle of the parties’ negative freedom of contract and the constitutional guarantee of the right of succession, it does not quite rank as a violation of the ordre public.

• Carl Friedrich Nordmeier: “Interspousal Gifts in Private International Law: German-Portuguese Cases according to the Introductory Act to the German Civil Code, the Rome I-Regulation and the Proposal for a Regulation in matters of Matrimonial Property”

Interspousal gifts in cross-border cases cause particular problems if they – as in Portuguese law – have to comply with particular rules regarding form or are freely revocable. This contribution analyses the validation of contracts invalid as to form that is provided for in § 311b (1) (2) German Civil Code if the immovable property is located abroad. Then, the validation of a gift according to § 518 (2) German Civil Code is discussed if effected by a bank transfer to a joint bank account to which foreign law applies. In such a case, there is no disposition related to the transfer of property in terms of art. 11 (4) of the Introductory Act to the German Civil Code. With regard to the Proposal for a EU-Regulation in matters of Matrimonial Property, rules which prohibit interspousal gifts should be classified as being rules of matrimonial property. Regarding procedural law, this contribution discusses under which circumstances the question of the applicable law can be left open for the purpose of an appeal to the German Federal Court of Justice.

• Carl Friedrich Nordmeier: “The french instituion contractuelle in Private International Law: Questions of conflict of laws and material law from a German and European perspective”

The French institution contractuelle concluded between spouses during the marriage is considered a disposition of property upon death for the purpose of art. 26 (5) (1) of the Introductory Law of the German Civil Code. The present contribution analyses the determination of the law of succession hypothetically applicable at the moment the institution contractuelle is concluded, with special regard to the fixation of the renvoi. In this context, the validation of a disposition of property upon death by the law effectively applicable to the succession is rejected. In a second step, the integration of the institution contractuelle into German material law is discussed. The nomination of a spouse as beneficiary to the greatest possible extent can be interpreted as a donation of the entire succession in accordance with § 2301 German Civil Code. A third step focuses on the new European Private International Law of Successions (Regulation (EU) No. 650/2012). An institution contractuelle is considered an agreement as to succession, meeting the definition in art. 3 (1) (b) of the Regulation. For an implicit choice of law, a distinction should be made between the intention to elect a certain law and to plan the estate in a certain way according to the material law applicable.

• Apostolos Anthimos: “On the application of Art. 14 Insolvency Regulation in Greece”

On the occasion of an opening of insolvency proceedings in Bitburg, Germany, the Thessaloniki CoA issued last year a highly interesting judgment on the application of Art. 14 Insolvency Regulation. This is the first decision applying the rule in Greece.

• Bea Verschraegen/Florian Heindler: “Änderungen im russischen Internationalen Privatrecht”

This contribution deals with the amendments of the conflict rules in Chapter VI of the Russian Civil Code that entered into force on 1 November 2013. Special attention is dedicated to the changes regarding the rules on contracts, in particular to consumer contracts and agency, as well as to the increased role of choice of law. The strengthening of party autonomy reveals to be a special feature of the law reform and becomes visible in various areas, such as the conflict rules for the form and torts. In the context of torts the changes regarding the objective attachment as well as the new rule on direct action against the insurer of the person liable, the rule on culpa in contrahendo, and the conflict rules on restriction of free competition are dealt with. Further amendments were made regarding the rules on property and related rights and also regarding the lex societatis. Furthermore, the amendments concerning the public policy-clause and the overriding mandatory rules are discussed by highlighting their different scope and consequences. Finally, the article focuses on the importance of the reform and the impact it has on the development of Russian conflict of law-rules.

•  Erik Jayme/Sebastian Seeger: “Internationales Kunstrecht – Tagung in Basel”