Views
Patience is a virtue – The third party effects of assignments in European Private International Law
Written by Leonhard Huebner, Institute for Comparative Law, Conflict of Laws and International Business Law (Heidelberg University)
The third-party effects of the assignment are one of the “most discussed questions of international contract law” as it concerns the “most important gap of the Rome I Regulation”. This gap is regrettable not only for dogmatic reasons, but above all for practical reasons. The factoring industry has provided more than 217 billion euros of working capital to finance more than 200,000 companies in the EU in 2017 alone. After a long struggle in March of 2018, the European Commission, therefore, published a corresponding draft regulation (COM(2018)0096; in the following Draft Regulation). Based on a recent article (ZEuP 2019, 41) the following post explores whether the Draft Regulation creates the necessary legal certainty in this economically important area of law and thus contributes to the further development of European private international law (see also this post by Robert Freitag). Read more
Belgian Court of Cassation and Ryanair’s forum clauses
On 8 February 2019 the Belgain Court of Cassation decided the case Happy Flights v Ryanair. The Dutch version of the decision is available here.
At issue was the validity of the clause in Ryanair’s general terms and conditions that the Irish courts have jurisdiction over disputes. The Court of Cassation quashed the decision of the Commercial Court of Brussels, which had considered only the formal validity of the choice-of-court clause.
The Court of Cassation confirmed that the consumer protection provisions of Brussels Ia do not apply (the contracts concern transport). It further found that according to Art. 25(1) of Brussels Ia the substantive validity of the clause (in a non-negotiated contract) was subject to Irish law (specifically the Irish implementation in Act 27/1995 of Directive 93/13/EEG on unfair terms in consumer contracts). The Court did not explicitly refer to Irish private international law (according to Consideration 20 of Brussels Ia), but directly to Act 27/1995.
It sent the case back to the Commercial Court of Leuven for a new assessment.
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. Read more
News
Out Now: Alexander DJ Critchley, The Application of Foreign Law in the British and German Courts
Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.
The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:
This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.
Please check out Hart’s banner at the top of this page for special discounts for CoL readers.
First view of second issue of ICLQ for 2023
The first view of the second issue of ICLQ for 2023 contains a private international law article that was published online just recently:
S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values
Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.
Just published: HCCH Practical Guide – Access to Justice for International Tourists and Visitors
This week the Hague Conference on Private International Law (HCCH) published the Practical Guide – Access to Justice for International Tourists and Visitors. The HCCH news item is available here.
As indicated in the Guide, this document “is intended to assist international tourists and visitors to foreign countries seeking access to justice for disputes arising from their tourism experience by providing information on online dispute resolution mechanisms that may be available and HCCH legal instruments that may be relevant in a given case.”
There are a few aspects of the Guide that are worthy of note:
First, the definitions of a visitor and a tourist are interesting.
A “visitor” is considered to mean “a traveller taking a trip to a main destination outside their usual environment, for less than a year, for any main purpose (business, leisure, or other personal purpose) other than to be employed by a resident entity in the country or place visited.”
A “tourist”: “A visitor (domestic, inbound, or outbound) is classified as a “tourist” if their trip includes an overnight stay.”
These definitions are taken from the United Nations World Tourism Organization (UNWTO).
Secondly, Part I of this Guide provides a list of online dispute resolution platforms, although some are not specific to international tourists and visitors. Among the governmental initiatives are: EU Online Dispute Resolution Platform (European Commission), Concilianet de PROFECO (Mexico) and Consumidor.gov.br (Brazil). Among the private initiatives are: Airbnb Online Resolution Centre and Endispute™.
Thirdly, Part II of this Guide sets out examples of common claims made by tourists and visitors such as lost baggage, cruise cancelled due to weather, and damage to property at hotel. These examples are merely indicative and of course do not constitute legal advice.
All in all it makes an interesting read and its layout is more easily readable on different devices. Nevertheless, it does make me wonder to what extent this document would actually help tourists and visitors in times of trouble.