Views
Competition Law and COVID 19
Written by Sophie Hunter
With more than 200 countries affected to date, the current crisis presents far reaching implications for competition law and policy on a global scale. This crisis is affecting developed and developing countries alike, especially by putting young competition authorities under a stress test of the resilience of their competition rules. As the pandemic of COVID19 spreads to every parts of the world, most recently the African continent, competition authorities are looking at whether relaxing their competition rules to allow for cooperation between key actors of the health sector and other essential economic sectors, like the airline industry. However, full or partial relaxation of competition rules may have adverse effects on industries, business and consumers by resulting in anti-competitive practices such as price fixing, excessive pricing and collusion between competitors.
Competition authorities have responded to this crisis in a piecemeal approach. While the European Commission was quick to a temporary framework[1] and relied on measures implemented during the 2008 financial crisis[2] , in the US, the FTC and DOJ only recently issued a guidance note based on previous emergency situations (Harvey and Irma hurricanes) to allow cooperation of competitors in the health sector, especially in the development of vaccines.[3] The UK has granted temporary exemptions from anti collusion rules to supermarkets. An approach also adopted by the German competition authority to ensure continuity of food supplies. South Africa promptly enacted an overall sector wide block exemption for the health sector.[4] Some countries like France and China have toughened up their price regulations.[5]
With a surge in excessive pricing of health-related products such as masks and hand sanitizers, competition authorities are currently dealing with ongoing investigations in a wide range of jurisdictions, namely the UK, France, Brazil, Russia, Spain and Italy. Some have announced price controls over high demand items. This has already been done in France through a decree regulating the price of hand sanitizers to prevent retailers and pharmacists engaging in abusive price increases.[6] Enforcement of sanctions against anti-competitive conducts toughened up, especially from competition authorities in Kenya and China, which have already heavily put sanctions on retailers engaged in excessive pricing of health-related products.
In times of crisis, governments can allow specific exceptions for joint research projects because they understand the need for collaborative efforts between firms to, for instance, develop a vaccine. Such exceptions have already been granted during other pandemics such as Swine Flu in 2009, MERS in 2015 and influenza in 2019. Those exceptions may be exempted from competition rules. For instance, the European Commission has called for an increase effort in research and development at the European level to develop a vaccine against COVID 19 within an exceptional regulatory framework (as it already did in 2009). [7] In South Korea, similarly, the government encouraged the main pharmaceutical companies to work together on a vaccine through an emergency use authorisation that was established post MERS in 2015.[8]
Apart from exceptions, certain countries granted exemptions from anti collusion rules to businesses in specific economic sectors. The most far reaching measures were taken by South Africa with the COVID-19 Block Exemption for the Healthcare Sector 2020. It established price controls on everyday goods as well as a list which exempts hospitals, medical suppliers, laboratories and pathologists, pharmacies, and healthcare funders from engaging in anti-competitive collaboration.[9]Other temporary exemptions have been granted to the airline industry by Norway, the retail sector in Germany, banking in Australia, the distilled spirit industry in the US, education in Denmark and tourisms in Italy and Kazakhstan.
Competition authorities must enforce strict compliance to competition rules, even during this time of pandemic. Despite this, some leverage and legal leeway enacted by certain competition authorities demonstrates a willingness to allow for a temporary flexibility to mitigate the economic impact. This can be achieved through sector specific block exemptions, strict guidance on collaboration in times of emergency or enhanced legislation on price controls. This time of crisis creates a great opportunity for competition authorities around the world to engage in international cooperation to share best practices. Prompt responses to the crisis in developing countries demonstrates the ambition and dynamism of such agencies (Peru, South Africa, Kenya). Nevertheless, it remains to be seen how competition authorities will cope during the crisis with sustaining investigation, enforcement and compliance with competition rules.
[1] François-Charles Laprévote, Theodora Zagoriti, Giulio Cesare Rizza, The EU Commission adopts a Temporary Framework to support the economy in the context of the COVID-19 outbreak, 19 March 2020, e-Competitions Bulletin Preview, Art. N° 93837
[2] https://www.concurrences.com/fr/bulletin/special-issues/competition-law-covid-19/competition-policy-covid-19-an-overview-of-antitrust-agencies-responses
[3] https://www.competitionpolicyinternational.com/ftc-and-doj-announce-expedited-antitrust-procedure-for-coronavirus-public-health-efforts/
[4] Minister of Trade and Industry of South Africa, ‘Covid-19 Block Exemption for the Health Care Sector, 2020 – South Africa’ (2020) 657 Government Gazette 12.
[5] State Administration of Market Supervision (SAMR) of People’s Republic of China, ‘Urgent Notice of the General Administration of Market Supervision on Severely Cracking down on Price Violations in the Production of Preventive and Control Materials during the Epidemic Prevention and Control Period’ (5 February 2020) <http://www.gov.cn/zhengce/zhengceku/2020-02/06/content_5475223.htm> accessed 22 March 2020.
[6] ‘Encadrement Des Prix Pour Les Gels Hydroalcooliques’ (Economie.gouv.fr, 2020) <https://www.economie.gouv.fr/dgccrf/encadrement-des-prix-pour-les-gels-hydroalcooliques-voir-la-faq> accessed 22 March 2020.
[7] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Pandemic (H1N1) 2009’ (15 September 2009) 1 <http://op.europa.eu/en/publication-detail/-/publication/9ec8052e-c269-4b57-9be9-4b40c5101d15/language-en> accessed 22 March 2020.
[8] https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW
[9] South African Government, ‘Guidelines – Coronavirus Covid-19 in South Africa’ (23 March 2020) <https://www.gov.za/coronavirus/guidelines> accessed 23 March 2020.
Access to justice in times of corona
Access to justice in times of corona
When COVID-19 makes the case for greater digitalisation of justice*
Written by Emma van Gelder, Xandra Kramer and Erlis Themeli, with thanks to Elisabetta Silvestri (University of Pavia), Georgia Antonopoulou, Alexandre Biard and Betül Kas (Erasmus University Rotterdam, ERC-Co project ‘Building EU civil justice: challenges of procedural innovations – bridging access to justice’)
* posted on 7 April, text updated on 8 April
The disruption of society as a result of the pandemic has naturally also affected our justice system. While there is no total lockdown in The Netherlands, as of 16 March people working in non-vital sectors are required to stay at home, schools and universities are closed, and events and social gatherings are forbidden. These measures also meant that courts in the Netherlands had to restrict their daily activities. All courts were closed on 17 March and will stay closed in any case until 28 April 2020. This means that most court proceedings are postponed for the time being. To proceed with continuing obligations and proceedings, thereby ensuring ongoing access to justice, judiciaries around the world are increasingly adopting various forms of technology in their court procedures.
This blogpost sets out the Dutch approach of the judiciary to the COVID-19 crisis, and highlights some global examples of other approaches.
COVID-19’s disrupting effect to the functioning of the court system
COVID-19 caused a sudden lockdown of courts. Court hearings are delayed, resulting in complaints that the backlog in the judiciary will grow, and attorneys have urged for more cases to be processed. Against the background of the health safety measures by the RIVM (National Institute for Public Health and the Environment), the public is temporarily no longer allowed to attend the few court hearings that still do take place. The lockdown of courts and offices emphasises the need for remote access to courts and better communication between courts and their constituents.
The adoption of a General Regulation during the COVID-19 crisis
The Dutch Judiciary has taken steps to respond to these problems by adopting a general regulation on case-handling by the Judiciary during the COVID-19 period. The starting point of this regulation is that the courts will continue to deal with urgent cases, which are divided into serious urgent cases and other urgent cases. Urgent cases include certain hearings in criminal cases, insolvency cases, and family cases, particularly those concerning child protection. Judges work with digital files and have secured remote access from home. Law firms are also expected to have their staff working from home whenever possible, though not all law firms are closed.
The General Regulation deals among others with the attendance of courtroom hearings (Para. 1, sub 1.1 General Regulation), the use of secure email (Para. 1, sub 1.2 General Regulation) and closed hearings (Para. 1, sub 1.3 General Regulation). In principle oral hearings with the physical attendance of the parties will not take place during the COVID-19 period, unless the judge decides otherwise. Both serious and other urgent cases will take place as much as possible in writing or through telephone (video) connection. If the judge decides that an oral hearing with physical presence of the parties should take place, the guidelines of the RIVM are taken into account. Where possible, livestreaming will be used. Procedural guidelines that allow documents and messages to be sent through post or fax, can be sent via a safe email channel of the Judiciary.
Also there is a proposal pending on separate temporary ‘urgent’ COVID-19 legislation (spoedwetgeving COVD-19 Justitie en Veiligheid ), proposed by the Minister of Legal Protection, Sander Dekker, and by the Minister of Justice and Security, Ferdinand Grapperhaus. This proposal was submitted to the House of Representatives (tweede kamer) on 8 April 2020. It will expire on the 1st of September 2020, but with the possibility to extend it’s application. This proposal for legislation allows communication that normally is prescribed to take place physically, to take place through electronic means such as audio or video livestream. This enables annual general meetings to be held online or a testament by a notary to be signed online.
Positive side-effects: enhanced use of technology
Often, radical innovations are dictated by crisis. A positive side effect of the current health crisis is that it may boost the digitisation of the judiciary that has been severely hampered in the Netherlands (see our blogpost on EUCP; more extensively: Xandra Kramer, Erlis Themeli and Emma van Gelder, e-Justice in the Netherlands: The Rocky Road to Digitised Justice, 2018). To enable the functioning of the General Regulation, the IT department of the judiciary has extended the facilities for a telephone and video connection between the judiciary and external parties. Another side-effect boosting digitisation in the Dutch Judiciary regards the introduction of secure email to be used by parties and for filing procedural documents and communicating messages as of 9 April 2020. Several safeguards are required for the use of email, regarding the subject of the email and the capacity of the attachments to the email. Regarding signatures, no digital signature is prescribed, but a ‘wet’ signature scanned and uploaded through PDF (see para. 1.2.4 under 6 of the General Ruling). The moment of receipt of the e-mail within the secured email system of the Judiciary counts as the time of receipt (see para. 1.2.5 of the General Regulation).
Perhaps the most important side effect of this crisis would be the experience with these implemented facilities. Using remote access to courts, secure emails, video conferencing and other electronic means for a protracted period will provide the Ministry of Justice and Security important lessons on how to better utilize these. Video conferencing is of course not new in the Netherlands, but it is not used at a wide scale, particularly not in civil cases.
Challenges
While these side-effects must be praised, in reality there are a number of challenges caused by this ‘sudden’ shift towards digitisation that cannot be neglected. The lack of face-to-face contact results in an absence or lesser extent of non-verbal cues such as body language, tone of voice, facial expression. Especially in family law cases – often involving emotional discussions – this may prove a challenge and can risk miscommunication. Another challenge relates to the identification of parties; if e-mail is used, it can be difficult to ensure that the documents are also received by the correct person. In the Netherlands, judicial officers play an important role in securing the correct service of documents. Another challenge – although less relevant in the Dutch context – relates to vulnerable users having no or limited access to the internet or having minimum skills with digital technology. The absence of an offline channel forms a challenge for access to justice in certain cases.
The exclusion of public attendance during a court hearing, challenges the principles of a public hearing and transparency. To counter these challenges, attendance of maximum of three journalists is still allowed, and more decisions are published on the website of the judiciary (rechtspraak.nl). For example, the website of the administrative law department (Afdeling Bestuursrechstpraak) of the Council of State, states that decisions are temporarily published online and posted on their internal website and rechtspraak.nl.
Also, across the Dutch borders, examples of challenges are found. For example, small criminal cases in France – such as ‘immediate appearances’ (comparution immédiate), rarely allow for online hearings or other forms of digitalisation.
In Germany, since 2013 § 128a ZPO (German Civil Procedure Code) gives the possibility of using video-conferences for the oral negotiation and the hearing of evidence in civil litigation. Although all German states have equipped their judiciaries with the necessary technology, they are not widely used in practice. The current approach to face the corona crisis consists rather of the postponement of non-urgent proceedings. However, first signs towards a stronger move of the digitization of justice appears to be driven by the judiciary of Nord-Rhine-Westphalia.
Other global developments
Similar approaches to the COVID-19 crisis can be seen around the globe.
For instance, the UK has adopted the Coronavirus Act 2020 (hereinafter: Act). Regarding provisions on digitisation, Point 53 and 54 of the Act enshrine the expansion of the availability of live links in criminal proceedings and in other criminal hearings. Furthermore, point 55 and 56 of the Act rule that public participation in proceedings will be conducted by video or audio, and live links are used in magistrates’ court appeals for requirements or restrictions imposed on a potentially infectious person. The Economist, quotes in a paper of 4 April 2020, that before the COVID-19 crisis, about 200 cases a day were being heard at least partially via conference-call and video link in the UK. By March 31st this number had increased to around 1800 cases.
Richard Susskind, launched a new website at the outset of the corona crisis, in order to create a platform to share experiences of ‘remote’ alternatives to traditional court hearings. The website provides an overview of interesting developments on a global level. In any event, Susskind can be delighted as he has noted a sudden spike of sales of his recent book ‘Online courts and the future of justice’.
Also in Italy extensive measures for the administration of justice during the Covid-19 period are adopted. A recent statutory instrument (18 March 2020),which applies until 15 April 2020, rules that most cases are postponed and all deadlines provided for by laws are suspended. Exceptions apply to certain urgent cases. From 16 April 2020 through June 30, other measures can be taken which comply with the health safeguards concerning COVID-19, for example court access can be limited. The Court of Cassation uses video technology to decide appeal cases. It required an adaption of the procedural rules to allow video connection for the judges unable to travel due to the COVID-19 crisis.
In Canada, some courts are encouraging counsel and the public to use alternative dispute resolution forms in order to reduce delays now that many court hearings are postponed for the time being. The use of technology in out-of-court dispute resolution is more widespread and accepted, resulting in various forms of online dispute resolution (ODR). For example, in the COVID-19 period, ODR procedures offer benefits of virtual hearings centralizing disputes regardless of geographical distances between parties, paperless processes, flexibility and convenience enabling parties to participate from their own home computer. Positive side-effects are cost and time reductions as online procedures eliminate inter alia travel costs. In any case, the Covid-19 crisis may lead to a ‘wake-up’ call among lawyers and parties to consider the ability of ODR/ADR as a viable option of dispute resolution.
In Colombia, on 19 March new procedural rules were enacted to allow for virtual conferences and videoconferencing in Colombian Courts.
In Brazil, Brazilian courts work with the Cisco system enabling videoconference for court proceedings.
Also in Kenya, digitalisation is welcomed, as a Kenyan Judge has used Zoom for remote hearings and is now planning to oversee more than 20 court hearings over video link, including verdicts, rulings on appeals as well as applications.
Conclusion
It remains to be seen if the rapid uptake of digitisation will continue after the COVID-19 crisis comes to an end. In any case, the present health crisis shows the ability to implement emergency legislation and of the judiciary to amend a vast array of procedures in a short period of time.
Jurisdiction over financial damages – the A-G Opinion in the Volkswagen Case before the CJEU
from Raphael de Barros Fritz, Hamburg
The assessment of a court’s jurisdiction based on Art. 7 (2) of the Brussels Ibis Regulation in cases involving exclusively financial damages has been a continuous challenge (cf., e.g., ECJ, 12.09.2018, Case C-304/17 (Löber); ECJ, 16.06.2016, Case C-12/15 (Universal); ECJ, 28.01.2015, Case C-375/13 (Kolassa)). Against this background, the Advocate General’s opinion in the Volkswagen emissions scandal case (Campos Sánchez-Bordona, Opinion of Advocate General delivered on 02.04.2020, Case C-343/19 (Volkswagen)) sets forth some important guidelines when determining a court’s jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation.
In the Volkswagen case, an Austrian consumer organization is pursuing claims for damages assigned by 574 purchasers of vehicles as well as a declaration establishing the liability of Volkswagen for as yet unquantifiable future damages. The assignors have all purchased their vehicles in Austria not directly from Volkswagen itself, but from either a commercial dealer or a private seller. The question is whether this gives the Austrian court called upon to decide the case jurisdiction under Art. 7(2) of the Brussels Ibis Regulation.
Assignees as direct victims
Before discussing the main question presented by the Austrian court, the Advocate General addresses two important preliminary issues. The first is whether the assignees are direct or merely indirect victims of Volkswagen’s tortious behavior. It is well-settled in the ECJ’s case-law that the place where the damages arose includes only the place where initial damages sustained by a direct victim ensued. Thus, the damages being claimed cannot be merely the consequence of damages arising elsewhere (cf. ECJ, 19.09.1995, C-364/93 (Marinari), paragraphs 14 and 15; ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans), paragraph 27). Since none of the assignees in the Volkswagen case have purchased vehicles directly from Volkswagen, one could argue that the assignees are only indirect victims of Volkswagen’s tortious behavior (i.e., manipulation of the cars’ engines) for their damages are only the consequence of the damages incurred by the commercial dealers and private sellers from whom they purchased theirs cars.
Yet the fact alone that a claimant has not established contractual relations with the tortfeasor does not necessarily makes him an indirect victim of the latter’s behavior (ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans)). In accordance with this ruling, the Advocate General also concludes that the lack of contractual relations between Volkswagen and the assignees does not necessarily precludes them from claiming damages as direct victims. He argues instead that the loss of value of the vehicles did not become a reality until the manipulation of the engines was made public. Therefore, neither the commercial dealers nor the private sellers who owned the cars before the assignees experienced any loss. As a result, the damages suffered by the assignees cannot be deemed as a mere consequence of the commercial dealers’/private sellers’ damages and the ones among them who retained the vehicles as part of their assets at the time the defect has been made public are to be considered as the direct victims of Volkswagen’s tortious actions (points 40 et seq., 81).
The place where the damages arise
A second issue the Advocate General had to resolve was whether the place where the damages arose amounts to the place where the vehicles were physically located. He answers this in the negative (points 72 and 73). The location of the vehicles is – from the defendant’s perspective – unforeseeable and does not establish a proximity between the court and the dispute. Thus, the place where the damages arose is the place where the act pursuant to which the vehicles became part of the purchasers’ assets took place, i.e., the place where the transactions occurred (point 74). It is interesting to note that the Advocate General is referring here to a noticeable action (the transaction entered into by the parties) in order to physically allocate damages which per se (because purely financial) are actually non-physical (point 53). Furthermore, it is no coincidence that the Advocate General briefly mentions bank accounts in his reasoning. For his line of argument in the Volkswagen case resembles to a great extent the ECJ’s ruling in the Universal case, where the Court held that the place where the damages arose was the place where a settlement had been executed between the parties and not the place where the bank account was located from which the obligations arising out of the settlement had been paid (i.e., the place where – like the place where the purchased cars where located in the Volkswagen case – the loss had materialized) (ECJ, 16.06.2016, Case C-12/15 (Universal), paragraphs 31 and 32).
In addition to the ECJ’s ruling in the Universal case, a comparison may be drawn between the Advocate General’s reasoning in the Volkswagen case and Advocate General Bobek’s opinion in the Löber case. There, Advocate General Bobek submitted that a person incurs damages at the place where he or she enters into a legally binding and enforceable obligation to dispose of his or her assets in a detrimental manner and not at the place where the pecuniary loss becomes apparent (Bobek, Opinion of Advocate General delivered on 08.05.2018, Case C-304/17 (Löber), points 73, 82). Applied to the Volkswagen case, this reasoning means that the place where the damages arose cannot be allocated to the place where the cars were physically located and thus where the pecuniary losses became perceptible, but rather to the place where the assignees entered into a legally binding and enforceable obligation to pay the purchase price. This reasoning is also sound if one (as the Advocate General in the Volkswagen case) considers the damages incurred by the purchasers to be the (negative) difference between the price paid and the value of the tangible goods received in return (points 36 and 37). For if the parties, for example, enter into a contract to sell (i.e., a bilateral promise of sale) or a sales contract (i.e., a contract of sale) under a legal system like the German one, where a sales contract by itself does not transfer ownership in the subject-matter of the contract, the financial damages occurring due to the (negative) difference between the price paid and the value of the tangible goods received in return take place already at the moment in which the purchaser enters into the contract to sell or the contract of sale: from this moment on, the obligation to pay the purchase price is part of his assets and it is not compensated by his claim against the seller, creating thereby a (negative) balance in his estate. .
General principles for determining jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation
With these issues out of the way, the Advocate General deals with the concrete question posed by the Austrian court.
He begins his analysis by throwing some light upon the reasoning of the ECJ in some of its previous rulings regarding the construction of Art. 7 (2) of the Brussels Ibis Regulation in cases involving pure financial damages. He suggests that what the ECJ was doing in reality in the cases Löber, Universal and Kolassa was to develop a two-prong approach for assessing a court’s jurisdiction at the place where the damages arose: on the first step, a court called upon to decide a case must determine whether the damage arose at the place it sits. Once this has been done, the court must take into consideration the “other specific circumstances” of the case at hand in order to ascertain whether the rationale underlying Art. 7(2) of the Brussels Ibis Regulation supports its jurisdiction (points 56, 59).
It is, however, not possible to conclude with exactitude after reading the Advocate General’s opinion whether he proposes to use this two-prong approach in every case involving financial damages or only in those cases where the fact pattern resembles the facts in the Löber, Universal and Kolassa cases. Two passages of the Advocate General’s opinion suggest the latter. On point 59 he states that the second step of the approach proposed may be required for purely financial damages and on points 70 and 71 he seems to try to fit the facts of the Volkswagen case into the facts of the Löber, Universal and Kolassa cases in order to justify the application of the two-prong approach to the case at hand.
In addition to carving out the different steps a court must undertake in order to determine its jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also clarifies some ambiguities in previous rulings of the ECJ pertaining to the second step of the forum court’s analysis (cf., for example, ECJ, 16.06.2016, Case C-12/15 (Universal), paragraph 27; ECJ, 28.01.2015, Case C-375/13 (Kolassa), paragraph 47; ECJ, 16.01.2014, Case C-45/13 (Kainz), paragraph 24). He reasons that this second step does not authorizes the court of the forum to ascertain whether it is best placed, in terms of proximity and foreseeability, to decide the matter as compared to the court of the place of the event giving rise to the damage (points 60-66, 80). Instead, the sole purpose of the examination of the “other specific circumstances” of the case is to confirm (or reject) the jurisdiction of the court of the place where the damage occurred based on the proximity of the court to the dispute (or the lack thereof) (point 80). For the court of the forum cannot disrupt the abstract ex-ante balancing of interests carried out by the legislator in Art. 7 (2) of the Brussels Ibis Regulation. The legislator, however, has deemed both the courts of the place where the event giving rise to the damages and the courts of the place where the damages have arisen as being equally suited for hearing a tortious case. Consequently, a national court cannot undermine this legislative intent by engaging in a comparison between the courts of these two places.
Conclusion
To sum up, the Advocate General’s opinion touches on different issues of pivotal importance when assessing a court’s jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation. Besides laying down the two-prong approach to be followed by national courts in (at least some) of the cases involving purely financial losses when determining their jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also discusses the question of whether a purchaser who acquired some goods without directly transacting with the tortfeasor can still be deemed as a direct victim of the latter’s tortious behavior and how to precisely determine where a financial damage has arisen.
The A-G’s opinion is here.
News
Recent Article from Uniform Law Review
Just late yesterday, Uniform Law Review published an interesting article that is of significance and relevance to comparative law and conflict of laws. It is titled EE Clotilde, “The reception of OHADA Law in anglophone Cameroon: appraisals and proposals” The abstract reads as follows:
This article assesses the extent to which the law under the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) has been received in anglophone Cameroon after 26 years of existence, with specific focus on the Fako judicial division.1 With regard to the tenets of qualitative research, it is observed that, from the viewpoint of the legal reception technique, it is indisputable that OHADA law has been infused into the English-speaking legal system in Cameroon through legal techniques of transposition. Through the use of interviews and questionnaires as our research tools, it is revealed that this reception remains limited because most judicial actors still find it difficult to implement legislation that they have not yet mastered. Linguistic issues and the difficulties faced in accessing the Common Court of Justice and Arbitration based in Ivory Coast in Abidjan on OHADA-related matters are serious obstacles to its effective implementation. This situation has been worsened by the poor articulation of clichés that tend to radically oppose OHADA law compared to common law principles. This article tries to deconstruct the ideas received as it shows some of the similarities in the substantive law under the two systems and consequently advocates on this basis the idea that efforts be made to familiarize common law jurists with the content of OHADA law. The article recommends that linguistic issues be tackled by OHADA lawmakers right from the stage of legal drafting by using drafting techniques that will reduce the feeling that the common law is being neglected. For uniform acts yet to be translated, the translation process should associate experts in comparative law to enable the use of appropriate legal language in translation from French into English. Only such efforts will entice the common law African countries that are still hesitating to join OHADA law and, by so doing, will render investment in Africa more attractive.
Virtual Workshop (in English) on June 6: Holger Spamann on Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives
On Tuesday, June 6, 2023, the Hamburg Max Planck Institute will host its 34th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Holger Spamann (Havard Law School) will speak, in English, about the topic
Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives
About the topic:
We conduct a randomized lab experiment with U.S. federal judges. The experiment puts the judges in the shoes of a judge deciding the applicable state law in a civil traffic accident case, which will determine whether a damage cap applies. We randomize the forum (with its choice of law directive) and the location of the accident in one state and the parties’ common domicile in another state.
One forum applies the traditional lex loci delicti rule, which calls for the application of the law of the state where the accident happened. The other forum applies the Restatement 2nd’s “most significant relationship” standard, which in our case calls for application of the law of common domicile. Judges’ decisions reflect this variation, but barely so. The data suggest that they tend to have a preference for lex loci delicti, and against damages caps. By contrast, we do not find that they are biased towards the more sympathetic party, which had been a third experimental treatment in our study.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Online Event for the 30th Anniversary of the HCCH 1993 Adoption Convention
To celebrate the 30th anniversary of the 1993 Adoption Convention, the Permanent Bureau of the HCCH will be hosting an online event on Wednesday, 31 May 2023, from 14:00 to 18:00 CEST.
The event will feature two round tables, one on “Learning from the Past” and one on “Looking to the Future”, composed of adoption experts from across the world. It will also feature a panel composed by a birth mother, an adoptive mother, and adopted persons, who will discuss their lived experiences.
During the event, panellists will present their views and will respond to selected questions sent in advance of the event.
To register, please visit: https://bit.ly/40Dnptk
For more information, please visit: https://bit.ly/3H8IV2j