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Anti-Semitism – Responses of Private International Law

Prof. Dr. Marc-Philippe Weller and Markus Lieberknecht, Heidelberg University, have kindly provided us with the following blog post which is a condensed abstract of the authors’ article in the Juristenzeitung (JZ) 2019, p. 317 et seqq. which explores the topic in greater detail and includes comprehensive references to the relevant case law and literature.

In one of the most controversial German judgments of 2018, the Higher Regional Court of Frankfurt held that the air carrier Kuwait Airways could refuse transportation to an Israeli citizen living in Germany because fulfilling the contract would violate an anti-Israel boycott statute enacted by Kuwait in 1964. The Israeli citizen had validly booked a flight from Frankfurt to Bangkok with a layover in Kuwait City. However, Kuwait Airways hindered the Israeli passenger from boarding the aircraft in Frankfurt. According to the judgment of the Frankfurt Court, Kuwait Airways acted in line with the German legal framework: specific performance of the contract of carriage was deemed to be impossible because of the Kuwait boycott statute. (more…)

Regulating International Organisations: What Role for Private International Law?

Written by Dr Rishi Gulati, LSE Fellow in Law, London School of Economics; Barrister, Victorian Bar, Australia

The regulation of public international organisations (IOs) has been brought into sharp focus following the landmark US Supreme Court ruling in Jam v International Finance Corporation586 US (2019) (Jam). Jam is remarkable because the virtually absolute immunities enjoyed by some important IOs have now been limited in the US (where several IOs are based), giving some hope that access to justice for the victims of institutional action may finally become a reality. Jam has no doubt reinvigorated the debate about the regulation of IOs. This post calls for private international law to play its part in that broader debate. After briefly setting out the decision in Jam, a call for a greater role for private international law in the governance of IOs is made. (more…)

Viewing the “Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region” as a Window onto the New Legal Hubs

Written by Matthew S. Erie, Associate Professor of Modern Chinese Studies and Fellow at St. Cross College, University of Oxford

On April 2, 2019, the Government of the Hong Kong Special Administrative Region (“HKSAR”) and the Supreme People’s Court of the People’s Republic of China” (“Supreme People’s Court”) signed an Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR (hereinafter, “the Arrangement Concerning Mutual Assistance,” see English translation here). This is a momentous development in the growth of international commercial arbitration in both mainland China (also, the “PRC”) and Hong Kong as it is the first time that such a mechanism has been put in place to allow Chinese courts to render interim relief to support arbitrations seated outside of the PRC. (more…)

News

Giustizia consensuale No 1/2022: Abstracts

The first issue of 2022 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:

Andrea Simoncini (Professor at the University of Florence) and Elia Cremona (PhD, University of Siena), Mediazione e Costituzione (Mediation and Constitution; in Italian)

This paper deals with the issue of the constitutional basis of mediation. After describing the currently dominant view which sees mediation as merely a ‘means’ to an end, such as reducing the judicial backlog, and as a complementary tool to in-court proceedings, the authors argue that mediation could be considered as a constitutional ‘end’ in itself. Thus, by promoting the attainment of a more cohesive society, mediation is seen as a way to fulfil the social solidarity obligations as enshrined in the Italian Constitution.

Claudio Cecchella (Professor at the University of Pisa), La negoziazione assistita nelle controversie sulla crisi delle relazioni familiari dopo la riforma con legge n. 206 del 2021 (Lawyer-Assisted Negotiation Procedure in Family Disputes Subsequent to Law No 206 of 2021; in Italian)

This paper analyses the provisions of Law No 206 of 2021 concerning the negotiation process assisted by attorneys in family disputes. The author firstly examines the provisions which entered into force on 22 June 2022, such as the extension of the scope of application of this negotiation process. Secondly, he explores the provisions that will enter into force at a later date, such as the possibility of agreeing to a lump-sum maintenance payment, the provision of legal aid and the right to take evidence during negotiations. While praising this reform, the author strongly criticizes it for not having provided for the minor’s right to be represented and heard during the negotiation process.

Juan F. Herrero (Professor at the University of Zaragoza), Accordarsi o soccombere (Reaching an Agreement or Losing the Case; in Italian)

Settlement rates are still relatively low compared to the percentage of cases that go to trial. Against this backdrop, the Spanish legislator has committed to reversing the trend. After some early efforts that were in vain, the legislator resorted to two instruments: the mandatory mediation attempt as a prerequisite to instituting judicial proceedings (as an alternative to mediation, parties may opt for other extrajudicial dispute resolution methods), and a new scheme for the allocation of judicial costs. The paper investigates correlations between judicial decisions on cost allocation and mandatory or voluntary extrajudicial settlement attempts. Furthermore, it examines the impact of the aforementioned attempts on the determination of judicial costs, with a special focus on relevant case law. Oftentimes, the risk or likelihood of obtaining an unfavourable – or only partially favourable – decision on the allocation of costs prompts the parties to reach an out-of-court settlement. In fact, if it is not the case, the winning party to litigation stands to lose more than they would gain financially.

Stefania Brun (Professor at the University of Trento), ‘Proceduralizzazione’ dei poteri datoriali e mediazione sindacale. Il laboratorio trentennale in materia di licenziamenti collettivi (Trade Union Mediation in Collective Dismissal. A Study of its Application over Three Decades; in Italian)

This article reviews the three-decade history and present-day application of Law No 223 of 1991 on collective dismissal. While providing an overall positive evaluation of this law, the article seeks to examine the role of the judicial and legislative branches in promoting best practices in its application. In this regard, it emphasizes the role of trade union mediation in the phase preceding collective dismissal as an effective means for reducing judicial scrutiny and ensuring greater legal certainty.

Antonio Cassatella (Professor at the University of Trento), Il procedimento amministrativo come strumento di giustizia consensuale. Potenzialità e limiti (Administrative Procedure as a Means to Reach Consensual Justice. Strengths and Limitations; in Italian)

This paper focuses on settlements reached by an individual and the public administration in the course of an administrative procedure as governed by Law No 241 of 1990. According to the author, these types of settlement are only possible if the administrative procedure is not seen as a unilateral exercise of the public administration’s power, but rather as a way of settling disputes between the administration and citizens. The author argues that the administrative procedure can be considered an alternative dispute resolution mechanism from a theoretical point of view. However, Article 11 of the aforementioned law cannot be considered an effective legal basis for settlement between an individual and the public administration due to its intrinsic limitations. Therefore, the author proposes that the Italian legislator reforms Law No 241 of 1990 taking the German and French legislations as a model.

Observatory on Legislation and Regulations

Lorenzo Bianchi (PhD, University of Parma), La conciliazione giudiziale tributaria. Criticità applicative e prospettive di riforma (Judicial Conciliation in Tax Disputes. Inherent Limits and Reform Proposals; in Italian)

This paper analyzes the mechanism of judicial conciliation in tax disputes and its relationship with out-of-court dispute resolution tools. The author examines the historical evolution of judicial conciliation and its current regulation. While exploring the main characteristics of tax disputes, particular attention is given to the inherent limits on reaching an agreement between the parties to litigation and the judicial power to promote settlement. In conclusion, the analysis focuses on the recent Italian reform proposals of the judicial proceedings regarding tax disputes and conciliation mechanisms as incentivized by the Next Generation EU plan.

Observatory on Practices

Dilyara Nigmatullina (Postdoctoral Researcher at the University of Antwerp) and Ruohan Zhu (Project manager at the Shanghai Arbitration Commission), A Study on the Use of Mediation in Combination with Arbitration. The Experience of East Asia with Focus on Mainland China

The article analyses the results of an empirical study about the current use of mediation in combination with arbitration (combinations) in international commercial dispute resolution. This study follows up the original study conducted by one of the article’s authors in 2014-2015, the results of which suggested the existence of a link between the practitioners’ legal culture and their use of a combination where the same neutral acts as a mediator and an arbitrator. The follow-up study further tests the hypothesis about the existence of the mentioned link by involving practitioners based in the East Asia region, predominantly in mainland China, while those taking part in the original questionnaire practiced in Continental Europe and common law jurisdictions in the Asia Pacific region. The article discusses the results of the follow-up study in the context of the findings of the original study before concluding that these results provide further support to the hypothesis that the use of a combination where the same neutral acts as a mediator and an arbitrator varies throughout the world and can be linked to the practitioners’ legal culture.

Francesca Valastro (Case Manger, Milan Chamber of Arbitration), La mediazione in videoconferenza. Dalla situazione emergenziale agli orizzonti futuri. Dati e note a margine di un’indagine empirica (Online Mediation: From Necessity to the Norm. An Empirical Study; in Italian)

The outbreak of the Covid-19 pandemic in March 2020 affected the way mediations in civil and commercial matters were conducted, transforming online mediation into an absolute necessity. Two years on, the world has changed and in this post-Covid time, it would be advisable to assess how the pandemic has affected the practice of mediation. Will mediation return to be conducted face to face or will online mediation be the future? This article presents the results of the empirical research collected through interviews with fifty attorneys assisting clients in mediation and fifty professional mediators of the Mediation Service at Milan Chamber of Arbitration. Based on the analysis of their responses, the author argues that online mediation will have a pivotal role in the post pandemic world. However, further research and analysis is still necessary to develop best practices and guidelines for effectively managing mediation remotely.

In addition to the foregoing, this issue features the following book review by Giuseppe Buffone (Judge, Justice and Home Affairs Counsellor, Permanent Representation of Italy to the European Union, Brussels): Maria MARTELLO, Una giustizia alta e altra. La mediazione nella nostra vita e nei tribunali (Mediation in Our Courts and in Our Daily Lives. An Empowering Alternative), Roma, Paoline Editoriale Libri, 2022, 1-160.

Brand and Herrup on “A Hague Parallel Proceedings Convention”

In their most recent article on A Hague Convention on Parallel Proceedings, 63 HARVARD INTERNATIONAL LAW JOURNAL ONLINE 1 (2022), Ron Brand and Paul Herrup argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group have moved forward on the Parallel Proceedings Convention project, however, there has been difficulty in leaving behind existing approaches that have not led to acceptable solutions. In particular, the work has failed to look far beyond the traditional civil law lis alibi pendens and common law forum non conveniens approaches to parallel litigation, or a focus on questions of jurisdiction.

In their new article, available here, the authors argue that the time is ripe for fresh thinking that reflects Twenty-first century realities in finding a workable approach to parallel litigation. They build on the previous article by discussing a possible architecture and some of the critical features of a parallel proceedings convention geared to moving litigation to the better forum.

Mexican Journal of Private International and Comparative Law – issue No 47 is out

The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 47 of the Revista Mexicana de Derecho Internacional Privado y Comparado (Mexican Journal of Private International and Comparative Law).  It is available here.

Click here to access the Journal page.

Below is the table of contents (including abstracts in English):

DOCTRINA

ACTOS JURÍDICOS RELACIONADOS CON BIENES MUEBLES E INMUEBLES EN EL DERECHO INTERESTATAL MEXICANO

Jorge Alberto SILVA

Abstract: This contribution is part of a larger research work on interstate Law related to property, in relation with article 121 of the [Mexican] Constitution. It reformulates the meaning of each of the sections with the treatment of assets from a merely constitutional approach based on judicial precedents and legal scholarship developed from the 19th century to the present. It ends up providing its own interpretive theses.

LA LEY APLICABLE AL CONTRATO DE INTERMEDIARIO QUE AMPARA ACTOS DE CORRUPCIÓN

James A. GRAHAM

Abstract: There is no particular reason to consider the intermediary or commission agent contract as an exception to the rule of lex contractus. The fight against corruption is in the Public Policy Law (“loi de police”), especially the foreign Public Policy Law. Despite the reluctance of judges and arbitrators to apply them due to lack of criteria, we believe that the Rome I Regulation can be used as a form of “international” criterion for both judicial and arbitral tribunals.

HACIA UNA INTERPRETACIÓN UNIFORME DEL CONCEPTO DE RESIDENCIA HABITUAL EN EL CONTEXTO DE LA SUSTRACCIÓN INTERNACIONAL DE MENORES

María Mayela CELIS AGUILAR (also known as Mayela Celis)

Abstract: This article seeks to analyze the concept of habitual residence, as well as the current trend towards its uniform interpretation in the context of international child abduction. In particular, we will try to show that habitual residence is a predominantly factual concept, and therefore flexible, and that its interpretation has an important impact, especially in times of pandemic.

PERSPECTIVAS COMPARADAS DE COMPETENCIA JUDICIAL INTERNACIONAL EN LA UE Y MÉXICO EN LAS CONTROVERSIAS ENTRE EL HUÉSPED-CONSUMIDOR Y LA PLATAFORMA DIGITAL DE ALOJAMIENTO TURÍSTICO

Silvana CANALES GUTIÉRREZ

Abstract: In a dispute arising from a digital intermediation services contract with an international element between a guest-consumer and a digital platform of tourist accommodations is not easy to establish the international jurisdiction. The response of Private International Law in both the European Union and Mexico depends on several factors that vary according to the specific case, and among them may be mentioned, whether or not the guest meets the requirements to be considered as a consumer, and the State where his domicile is located. With respect to the platform is relevant if it has an establishment in the State of domicile of the consumer or if it targets its activities to that State. If a person meets the requirements of a ”consumer”, that fact creates special rights regarding international jurisdiction for consumers domiciled in both the EU and Mexico, however the breadth of such rights reflects their Private International Law systems, which protect the consumer at different levels, on which the comparative analysis of this brief research is based.

JURISPRUDENCIA

NULIDAD DE LAUDO ARBITRAL. COMO CONSECUENCIA DE SER DECLARADA, NO PROCEDE CONDENAR A LOS ÁRBITROS A LA RESTITUCIÓN DE SUS HONORARIOS.

RESEÑAS POR LEONEL PEREZNIETO CASTRO

URUGUAY: TEXTO Y CONTEXTO. LEY GENERAL DE DERECHO INTERNACIONAL PRIVADO N.º 19.920, Uruguay, FCU, 2021, 280 pp. / Cecilia Fresnedo de Aguirre, Gonzalo A. Lorenzo Idiarte

CHILE: DERECHO INTERNACIONAL PRIVADO, LEYES, TRATADOS Y JURISPRUDENCIA, Chile, Thomson Reuter, 2022, 721 pp. / Eduardo Picand Albónico