EU Member State sees opportunities in Brexit: Belgium is establishing a new English-language commercial court
Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.
Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law, followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.
CJEU on the place of the damage under Article 7(2) of Brussels Ia as regards violation of personality rights of a legal person
First personal impressions presented by Edina Márton, LLM, PhD (Saarbruecken)
For jurisdictional purposes, the localisation of cross-border violations of personality rights under European instruments, such as Regulation (EU) No 1215/2012 (Brussels Ia), has attracted the attention of a considerable number of scholars and often led to different legal solutions in the national judicial practice. At EU level, besides Shevill (C-68/93; ECLI:EU:C:1995:61) as well as eDate and Martinez (C-509/09 and C-161/20; ECLI:EU:C:2011:685), since 17 October 2017, a third judgment in case Bolagsupplysningen (C-194/16; ECLI:EU:C:2017:766) has given further clarification in this area. In the recently delivered judgment, the ECJ specified one of the two limbs of the connecting factor “where the harmful event occurred or may occur” under Article 7(2) of Brussels Ia, namely the place of the alleged damage. (more…)
Is “la réserve héréditaire” part of French international public policy ?
Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?
The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.
According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).
Whereas the Court of Cassation ruled that the reserved portion is mandatory in internal matters, the question of its imperative nature in international cases was yet unclear. Authors disagree. While some consider that the réserve héréditaire cannot be considered as such as part of French ordre public international, others consider that due to the fact that it is an expression of solidarity among family members as well as a guarantee of equality between heirs, it has to be part of French international public policy.
The controversy was aggravated in 2011 when the Conseil Constitutionnel condemned le droit de prélèvement for amounting to a discrimination based on nationality. The droit de prélèvement is another specific French mechanism. It allows French heirs that have been deprived of the reserved portion from the assets located abroad to deduct the equivalent of such reserved portion from the part of the deceased’s assets that are located in France. As a consequence of this decision, the reserved portion remained the only protection for heirs from the risk of disinheritance.
However, in both decisions, the Court found that the mere fact that the foreign law does not provide for a mechanism such as the reserved portion does not amount to a violation of French international public policy. The foreign law could nevertheless be disregarded, but only if its concrete application in a specific case leads to a situation that would be incompatible with French essential principles.
Giving the particulars circumstances of the cases, the Court found that in both cases the application of Californian law was not contrary to French public policy. First, the Court outlined that the deceased had lived in California for over thirty years and that most of their assets were located there. As a consequence, both situations were not strongly connected to the French forum. Then, the Court pointed out that the children living in France were adults and that their economic situation will not suffer from their being deprived of the succession.
These observations lead the Court to consider that, in these situations, the Californian law is not contrary to French international public policy even though it does not provide for a reserved portion. The Court emphasis on the particular circumstances of the case, namely that the situation was mainly located in California and that none of the claimants was in need or economically instable, indicates that these circumstances weighed strongly on the outcome. It does not exclude that, in different circumstances, a foreign law that would not provide for a reserved portion could be dismissed as contrary to public policy.
Prior to the coming into force of the Succession Regulation, the solution appears in accordance with its public policy provision. Stating that courts could only refuse to apply provisions that are manifestly incompatible with the forum’s international public policy, Article 35 allows that foreign laws be disregarded when their application could lead to serious consequences. It does not appear to be the case in the present situations.
The new discussed question is now: In which case the application of a foreign law not including a reserved portion could lead to a situation incompatible with French essential principles ?
JLMI Call for papers: The interplay of physical and digital trade law
The Journal of Law, Market & Innovation (JLMI) is a new initiative of the Turin Observatory on Economic Law and Innovation. The JLMI is an open access journal of the University of Turin that aims at fostering research with respect to the regulatory challenges posed by markets and innovation in our times. The JLMI relies on an interdisciplinary methodology. More information at https://www.ojs.unito.it/index.php/JLMI.
In its yearly Special Issue, which is a joint initiative with the Master in International Trade Law and to which this call for papers is addressed, it focuses on international and comparative approaches to trade law with the goal of offering to the readers challenging ideas, critical insights and new perspectives.
This Call concerns the first Special Issue to be published in Spring 2022 on The interplay of physical and digital trade law. The Call aims at gathering contributions that question to what extent technology and digital trust are changing global trade law, and discuss the implications, for the regulation of global trade, of the interplay of physical trade and the digitalization of the economy.
The editors of the issue are University of Turin’s dr Lorenza Mola, Professor of International Law and 2020-2021 scientific director of the Master, dr Cristina Poncibò, Professor of Comparative Private Law and member of the Scientific Committee of the Master, and dr Elena D’Alessandro, Professor of Civil Procedure and member of the Scientific Committee of the Master.
The following topics and perspectives may be taken into considerations, among others: Trade, Digital Trust and Human Trust; Contract Digitalization and B2B platforms; Trade, DLTs, Blockchain; E-customs; Digital Justice and Trade; Perspectives from China and the Global South. The editors invite submissions addressing the legal aspects underpinning questions such as: Are the main drivers of physical trade challenged?; Trade and essential infrastructures: what lessons learned from the Suez Channel case?; Does digitalization really change trade?; Is global trade really going digital?; How to adapt dispute settlement mechanisms to digital trade? How is the Belt and Road Initiative shaping the physical/digital interplay in global trade? What is the impact of COVID-19 on such interplay?
Authors are invited to address questions and issues arising from the specific area of law relating to their topic. All types of legal approaches will be considered for publication. However, please note that any analysis solely limited to a national legal system will fall outside the scope of the Journal. An international, supranational or transnational legal dimension is imperative. The Board of Editors will select articles based on quality of research and writing, diversity, and relevance of topic. The contributions from the Alumni of the Master programme are particularly welcomed. The novelty of the academic contribution is also an essential requirement.
Prospective articles should be submitted in the form of abstract (around 800 words) or draft articles (see below) to firstname.lastname@example.org within August 31, 2021. Accepted authors will be notified within September 10, 2021. Final articles shall be delivered within December 10, 2021 and should conform to the journal style guide that is based on OSCOLA. Typically, the JLMI accepts contributions within the range of 10.000 to 15.000 words, including footnotes, but both shorter and longer articles will be considered. Pre-selected articles will be subject to single-blind peer review. For further information, or for consultation on a potential submission, you can contact us by email at email@example.com.
Conference and open access book: The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law – 9 to 11 September 2021
The Conference will take place in a hybrid format, i.e. both at the Max Planck Institute for Comparative and International Private Law in Hamburg and virtually via Zoom. English-Spanish and Spanish-English simultaneous translation for the Conference will be provided by professional interpreters.
The Conference Program and further information can be found via this LINK.
Please register for participation at the Conference via Zoom HERE.
HCCH Monthly Update: August 2021
Conventions & Instruments
On 23 July 2021, New Zealand deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With the ratification of New Zealand, 42 states and the European Union are bound by the Child Support Convention. It will enter into force for New Zealand on 1 November 2021. More information is available here.
On 1 August 2021, the HCCH 1996 Child Protection Convention entered into force for Costa Rica. It currently has 53 Contracting Parties. More information is available here.
Meetings & Events
As announced on 3 August 2021, registration for the 12th International Forum on the electronic Apostille Programme (e-APP) is now open to the general public. The event will be hosted online on 4 October 2021. The deadline for registration is Friday, 10 September 2021, 5.00 p.m. CEST. More information is available here.
On 9 August 2021, the HCCH and the Inter-American Commission on Human Rights of the Organization of American States co-hosted a webinar on international child abduction.
On 19 August 2021, the HCCH, the Council of ASEAN Chief Justices and the Malaysian Judiciary co-hosted a virtual HCCH-ASEAN Masterclass. More information is available here.
Vacancy: Applications are now open for three- to six-month legal internships from January to June 2022. The deadline for the submission of applications is 24 September 2021 (18:00 CEST). More information is available here.
Reminder: Submissions for the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition are due on 1 October 2021. The competitions are organised as part of the Advancing and Promoting the Protection of All Children (Approach) Initiative, launched in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.