First Issue of 2013’s Flemish PIL E-Journal

The first issue of the Belgian e-journal on private international law / for 2013 was just released.

The journal is meant to be bilingual (French/Dutch), but this issue is almost exclusively in Dutch, except for one judgment from the Court of Appeal of Liege.

No article in this issue.

New French Book on International Commercial Law

Catherine Kessedjian, who is professor of law at Paris II University and a former Deputy Secretary General to the Hague Conference, has published a new treatise on French International Commercial Law.

As is traditional in France, the book includes developments on international commercial contracts, but also on the law governing corporations (including international insolvency) and international dispute resolution.

A table of contents and more details are available here.

Born on the European Private International Law of Book-Entry Securities

Michael Born has published a book on the European Private International Law of  Book-Entry Securities (Europäisches Kollisionsrecht des Effektengiros, Tübingen, Mohr Siebeck 2013). The official summary reads as follows:

The law applicable to securities held in book-entry form in securities accounts is subject to a variety of European private international law rules. However, these provisions have not yet established a complete and consistent conflict of laws regime. Michael Born analyses the inconsistencies and gaps and also examines the options for eliminating the identified shortcomings.

Further information is available on the publisher’s website (in German).

Cuniberti on Lex Mercatoria

I (University of Luxembourg) have posted Three Theories of Lex Mercatoria on SSRN.

One of the most remarkable developments in international commercial law over the last fifty years has been the gradual acceptance of the existence of a new merchant ‘law’, or lex mercatoria, spontaneously generated by the international community in the shadow of national legal orders. While the notion that there might be law beyond the state aroused the interest of legal scholars and theorists around the world, few wondered whether international commercial actors had a genuine interest in the development of an autonomous transnational law. This Article offers empirical evidence suggesting that commercial parties almost never opt into lex mercatoria pursuant to their freedom to contract, but instead use that freedom to select a particular national law to govern their contracts. This conclusion begs the question of whether anybody else might benefit from lex mercatoria.

In a groundbreaking article published in 2005, Christopher Drahozal argued that the idea had lost practical significance and offered a signaling theory of lex mercatoria: the interest in the idea can be explained by the willingness of would be arbitrators to market themselves. While essentially agreeing with Drahozal, this Article offers two other theories explaining the development of lex mercatoria. First, I argue that deciding disputes on the basis of lex mercatoria can bring important benefits to international arbitrators. If that is the case, though, their interests may conflict with that of the parties who hired them. That raises an agency problem which needs to be both acknowledged and addressed. Secondly, I demonstrate how lex mercatoria can also benefit organizations which are involved in the business of producing model contracts and maintain that the active promotion of the use of non-state law – thereby side-stepping mandatory rules of national law – is intended to reduce the costs of producing international model contracts by such organizations.

The article is forthcoming in the Columbia Journal of Transnational Law.

Nehne on Methodology and Principles of European Private International Law

Timo Nehne, University of Cologne, has written a new book on methodology and general principles of European Private International Law (Methodik und allgemeine Lehren des europäischen Internationalen Privatrechts. Tübingen, Mohr Siebeck 2012).  The author has kindly provided us with the following summary:

The Private International Law regulations adopted by the European Union so far stipulate issues of methodology and “general principles” in fragments only. The dissertation “Methodik und allgemeine Lehren des europäischen Internationalen Privatrechts” (Methodology and General Principles of European Private International Law) focuses on their examination. The book encompasses six chapters. In chapter 1, the conceptual and methodological basis for the work is established. After the definition of the term “European Private International Law” and a short description of its history (§ 1), the introduction of a uniform terminology for this field of law is discussed (§ 2). Afterwards, dogmatic fundamental questions for the construction of European Union Private International Law (EU PIL) and for filling its gaps are scrutinised (§ 3). On that basis, methodic proposals of how to interpret EU PIL (§ 4) and how to close existing gaps (§ 5) are developed. Beside the creation of homogeneous Latin technical terms, both of these techniques are applied in chapters 2 to 5 to work out further methods for the handling of European conflict of laws and to fathom its principles. In doing so, the dissertation follows the path of application of EU PIL regulations. Thus, chapter 2 deals with the scope of European Private International Law (§ 1) and its relationship with national law, EU law as well as international conventions (§ 2). Subsequently, subjects concerning the legal category of a European choice of law rule are investigated (chapter 3) namely characterization (§ 1) and the solving of preliminary questions (§ 2). After having identified the applicable legal category, a European legal practitioner will be faced with a specific connecting factor. What kind of connecting factors EU PIL provides, is depicted in chapter 4. After an introducing summary (§ 1) it broaches the issues of party autonomy (§ 2) and “objective” connecting factors (§ 3). In any case, the connecting factor of a EU choice of law rule leads to the legal system governing the case at hand. In this respect, European conflict of laws follows the principle of exclusion of renvoi (chapter 5 § 1) which gives rise to the question whether it allows exceptions (§ 2). A further problem consists in the handling of the applicable law of states with more than one legal system (§ 3). Finally, chapter 6 compiles the results of the preceding chapters (§ 1) and closes with a suggestion which rules a Rome 0 Regulation or a EU PIL code should comprehend at least (§ 2).

Further information is availbale on the publisher’s website.

Keitner on Human Rights Enforcement through Transnational Litigation

Chimene Keitner (UC Hastings College of Law) has posted Transnational Litigation: Jurisdiction and Immunities on SSRN.

Through transnational litigation, national courts enforce human rights norms “horizontally.” Jurisdictional doctrines and immunity principles both shape the permissible contours of horizontal enforcement. Conflicts may arise between the principles of state sovereignty and non-interference, on the one hand, and the goals of promoting accountability and providing remedies for victims, on the other. This chapter in the forthcoming Oxford Handbook of Human Rights explores the bases for asserting jurisdiction in human rights cases and focuses on the development, and limits, of foreign official immunity and foreign state immunity. It also discusses claims against non-state actors including private corporations for committing or assisting human rights violations. While the horizontal enforcement of human rights norms by national courts carries the potential for both salutary and disruptive effects, national courts remain important developers and enforcers of international human rights law.

The pre-publication text of this chapter will be available on SSRN while the Oxford Handbook of Human Rights is still in production.

Deinert on International Labor Law

Olaf Deinert, Professor at the Georg-August-University Göttingen, has written a book on (German and European) international labor law (Internationales Arbeitsrecht. Deutsches und europäisches Arbeitskollisionsrecht, Tübingen, Mohr Siebeck 2013). The official summary reads as follows:

Olaf Deinert studies all the issues pertaining to applicable law in labor law cases with a foreign element. He gives a detailed description of the conflict of law rules and, in a discussion which includes all fields of labor law, looks at the extent to which applicable law (lex causae) is superseded by overriding mandatory rules of private law and public law. He examines this from the perspective of comparative law, since this is significant for the uniform interpretation of European regulations on international labor law, illustrating as it does the problems involved and serving as an example of how to solve individual issues in the conflict of laws.

Further information is available on the publisher’s website (in German).

Kroll-Ludwigs on Party Autonomy in European Private International Law

Kathrin Kroll-Ludwigs, University of Bonn, has authored a book on the role of party autonomy in European Private International Law (Die Rolle der Parteiautonomie im europäischen Kollisionsrecht, Tübingen, Mohr Siebeck 2013). It provides a broad overview of the design of party autonomy in the law of contractual and non-contractual obligations, family and succession law. The official summary reads as follows:

Why did the European legislator decide on a broad freedom of choice of law in the law of contractual and non-contractual obligations on the one hand and on a limited choice in family law and the law of succession on the other hand? Kathrin Kroll-Ludwigs’ analysis of the reasons for this divergency leads to the very basis of party autonomy as a fundamental right of individual freedom. She suggests a change of paradigm.

Further information is available at the publisher’s website (in German).

Van Calster on European Private International Law

Geert Van Calster, Professor at the University of Leuven, authored a new text book on European Private International Law t has just been published:  Geert Van Calster, European Private International Law, Hart Publishing 2013 (382 pages). This book is a valuable addition to the existing text books on European Private International Law. It focuses on those instruments and developments that are most important in the commercial area.

The blurb reads:

Usable both as a student textbook and as a general introduction for legal professionals, European Private International Law is designed to reflect the reality of legal practice throughout the EU. The private international law of the Member States is increasingly regulated by the EU, making private international law ever less ‘national’ and ever more EU based. Consequently, EU law in this area has penetrated national law to a very high degree, making it an essential area of study and an area of increasing importance to practising lawyers throughout the EU. This book provides a thorough overview of core European PIL, including the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort), while additional chapters deal with PIL and insolvency, freedom of establishment and corporate social responsibility.

More information is available here.

5th Journal of Private International Law Conference, Madrid, 12-13 Sep 2013

Building on the very successful Journal of Private International Law conferences in Aberdeen (2005), Birmingham (2007), New York (2009), and Milan (2011) the 5th Conference of the Journal will take place in Madrid on 12-13 September 2013. The organization of the Conference is shared by the Law Faculties of Universidad Autónoma de Madrid and Universidad Complutense. The Programme is reproduced in full below. All of the details on venue, accommodation and registration can be found on the conference website.

The Programme

Thursday 12th  September 2013

9.00 – 9.30 Registration

9.30 – 10.00 Welcome session (J. Harris + local judicial or academic authorities)

10.00 – 11.30 Panels 

Group 1 – MINORS & NAME


CARPANETO, Laura Few proposals on the “adaptation” of Brussels II-bis with specific reference to the rules on parental responsibility
FIORINI, Aude The Hague Child Abduction Convention and the Habitual Residence of Newborns – a Comparative Study
GONZÁLEZ MARTÍN, Nuria International Child Abduction and Mediation: Feasibility and Suitability of  a Guide of Good Practice
TRIMMINGS, Katarina Embryo transfer in international context
GUZMÁN ZAPATER, Mónica The right to a name: observatory on the progress made by the EU on the continuity of civil status
Mikša, Katažyna New rule – old problem? The law applicable to surnames in new Polish Act on Private International Law




FRANZINA, Pietro Codifying Private International Law – Some Thoughts on the Reasons of a Resurgent Trend
ERDÖS, Itsvan Unity or Diversity? Should there be a European Code of Private International Law?
PAUKNEROVA, Monika & PFEIFFER, Magdalena New Act on Private International Law in the Czech Republic: Starting Points and Perspectives within the European Union
ALMEIDA, Bruno& ARAUJO, Nadia Two steps forwards, one step back? Recent developments and pending challenges of PIL practice in Brazil
Deskoski, Toni &Dokovski, Vangel Choice of court agreements in Macedonian Private International Law and in the Brussels I Regulation (and the influence of the Brussels I Regulation on the legal systems of the third countries)



DYRDA, Lukas Autonomous interpretation in European private international law – several remarks on the notion of “the place where the harmful event occurred or may occur” under the Brussels I Regulation and the new Regulation No 1215/2012 in intellectual property infringement cases
CORDERO, Clara Isabel The need for an EU coordinated legislative approach on cross-border violations of privacy
VALLAR, Julia Is art. 5.3 of EC Reg. NO. 44/2001 applicable in respect of an action for a negative declaration in tort matters?
KNÖFEL , Oliver Taming the Leviathan – Liability of States for Sovereign Acts (Acta Iure Imperii) as a Challenge for EU Private International Law



ASON, Agnieszka The Revised Brussels Regulation: A New Approach To Arbitration in the European Rulemaking
HAUBERG WILHEMSEN, Louise European Perspectives on International Arbitration
ZACARIASIEWICZ, Maciej Vindicating public interest through application of mandatory rules in international commercial arbitration
GROSSU, Manuela Waving the Right to Challenge Arbitral Awards as the Outcome of  Hybrid Procedures
Hacibekiroglu, Ekin Taking evidence in international commercial arbitration


11.30 – 12.00 Coffee Break

12.00 – 13.30 Panels


RAITIERI, Marco Citizenship as a connecting factor in private international law for family matters
SHAKARGY, Sharon Marriage by the State or Married to the State? On Choice of Law in Marriage and Divorce
QUINZA, Pablo The establishment of an optional common European matrimonial property regime: an alternative way for international couples.
TORGA, Maarja Establishing the ‘cross-border’ nature of a matrimonial property dispute under the proposed EU regulation on the matrimonial property regimes
SAPOTA, Anna Compromise or enhanced cooperation  – the possible ways to deal with EU proposal on matrimonial property regimes and property consequences of registered partnership




CANOR, Iris The Principle of Non-Discrimination in Private International Law
FULLI-LEMAIRE, Samuel Characterisation – a problem reborn?
MAUNSBACH, Ulf Justifying the exclusion of choice
HOLLOWAY, David &SCHULTZ, Tomas Comity in European PIL
SHRIVASTAVA, Vishal A Case Study on the Need for Strengthening the International Court of Justice



TORRALBA, Elisa & RODRÍGUEZ PINEAU, Elena What’s in a Judgment? Reflections on res judicata, jurisdiction and ECJ’s activism
AZCÁRRAGA MONZONÍS, Carmen New Developments in the Scope of Free Movements of Public Documents in the European Union
SERRANO, Giuseppe Private enforcement of administrative acts adopted by a foreign competition authority: a PIL perspective
DOWERS, Neil Underpinning the internal market: the doctrine of mutual trust, the fundamental freedoms, and European private international law
GILLIES, Lorna Assessing the Role of Public Policy and the Utility of Jurisdiction and Choice of Law Rules for the Effective Return of Cultural Property Objects Unlawfully Removed from a Member State




MUCCIARELI, Federico Maria Company’s private international law in the 21st Century: dealing with complexity
WINSHIP, Verity Jurisdiction Over Corporate Groups
Yüksel, Burcu The Choice of Law Aspects of International Funds Transfers
WAHAB, Mohamed S. Abdel The Law Governing Public Private Partnership Agreements: BetweenParty Autonomy and Overriding Regulatory Policies
AKSELI, Orkun Assignment of Receivables and the Conflict of Laws


13.30 – 15.00 Lunch (a short guided visit to “La Corrala” will be available at 14.30)

15.00 – 16.30 Panels



Yatsunami, Ren Characterization of Trust in Consideration of Neighboring Legal Relationships
HOLLIDAY, Jayne Habitual residence: room for improvement?
PERONI, Giulio From the principle of unity to the principle of divisibility of the patrimony: new tendencies in international private law
NAGY, Csongor Itsván The functions of party autonomy in international family and succession law – an EU perspective
WYSOCKA-BAR, Anna Modification and revocation of professio iuris under the EU Succession Regulation


Group 10 – CONTRACTS

RESZCZYK Law applicable to voluntary representation
Van Hoek, Aukje Private international law for cross-border posting of workers: one union, many models of protection
ÁLVAREZ ARMAS, Eduardo Private International Law and the rights of air and sea passengers in the EU: A puzzle and a lock in the access to justice.
POLIDO, Fabricio Critical interactions between Private International Law and the Vienna Convention on Contracts for the International Sale of Goods of 1980 – CISG: A view from the Brazilian legal environment
ÖZGENC, Zeynep Choice of Law in contract of affreightment: the approach of Turkish private international law.



CAMPUZANO DÍAZ, Beatriz The scope of application of the rules on jurisdiction after the recast of Brussels I Regulation
MIGLIO, Alberto The Recast of Brussels I and Jurisdiction Over Third State Defendants
HERRANZ BALLESTEROS, Mónica Law applicable to choice of court agreements in Brussels I Recast
SÁNCHEZ DÍAZ, Sara Choice of court agreements: Brussels I Regulation Recast
AÑOVEROS TERRADAS, Beatriz Collective Redress and Consumer Protection in Europe




ARZANDEH, Ardavan Spiliada: An unpredictable doctrine?
TARMAN, Zeynep Derya Jurisdiction Turkish courts
KEYES, Mary & MARCHALL, Brooke Potestativité and party autonomy
DARIESCU, Cosmin When Forum non Conveniens objection can be invoked before Romanian Courts?
Ozcelik, Gulum  Public Policy Intervention in the Recognition and Enforcement of Foreign Judgments: Turkish Perspective


16.30 – 17.00 Coffee Break

17.00 – 18.30 Panels


Grusic, Ugljesa Regulating the Environment and Private International Law
ERKAN, Mustafá Product Liability in Turkish Private International Law: Is Turkey Looking Towards the Rome II Regulation?
BRIGHT, Clair  Civil Liability for Corporate Human Rights Abuse;  The issue of extraterritorial jurisdiction
Sousa Gonçalves, Anabela Susana de The General Rules of the EU Regulation No 864/2007 (Rome II)
PITEL, Stephen & HARPER, Jesse The Law Governing Tort Claims: Twenty Years of the Lex Loci Delicti



HEREDIA CERVANTES, Iván Arbitral agreements and arbitral procedures in the Insolvency Regulation.
PENADÉS FONS, Manuel Conflict of laws to solve laws in conflict: Balancing cross-border insolvency and international arbitration.
McCORMACK, Gerard Reforming the European Insolvency Regulation – changing what is on the menu
GUANJIAN Tu, andXiaolin Li Cross-Border Bankruptcy: A Call and A Suggestion for Cooperation within China


Group 15 – SALES/CESL

HEIDEMANN, Maren Choice of law under the proposed Common European Sales Law
PORCHERON, Delphine Unification of substantive rules and private international law: a study of their relationship through the example of the Common European Sales Law
RUIZ ABOU NOGM, Verónica Designing Ways Forward: Lateral Thinking, Private International Law and the Common European Sales Law’
Strecker, Sophie & BERRY, Elspeth Rome I, Party Autonomy and the Choice of Non-State Law: Difficulty or Opportunity?
SÜRAL, Ceyda Conflict of laws rules: a barrier before the application of Unidroit principles or not?


20.30 Conference Dinner in Pabellón de los Jardines de Cecilio Rodríguez (El Retiro)         

Friday 13th  September 2013

9.30 -11.00  Plenary session I RECOGNITION & ENFORCEMENT

Chair: Francisco J. Garcimartín Alférez

GASCÓN INCHAUSTI, Fernando The abolition of exequatur proceedings in the “new” Brussels Regulation
TUO, Chiara E. The re-evaluation of foreign judgments under EU Regulation 1215/12: between prohibitions and mutual trust
LEHMANN, Matthias A System sui generis?Res judicata effect of Member State Judgments in the European Union
BEAUMONT, Paul & WALKER, Lara Recognition and Enforcement of Judgments in Civil and Commercial Matters: Lessons from Brussels for the Hague
OPPONG, Richard Frimpong & NIRO, Lisa Recognition and Enforcement of Judgments of International Courts in National Courts: Emerging Jurisprudence and Challenges Ahead


11.15 -11.45  Coffee break

11.45 – 13.15  Plenary session II CONTRACTS & TORTS

Chair: Pedro A. De Miguel Asensio

LEIN, Eva Extending Jurisdiction under Art 5(3) Brussels I Regulation to Accomplices?
DANOV, Mihail Private Antitrust Litigation and Private International Law in a Global Context
TERAMOTO, Shinto & Jur?ys Paulius IP Intermediaries In Conflict Of Laws: A Social Network Perspective
ALBORNOZ, Mª Mercedes The internet and private international law of contracts
OREJUDO PRIETO DE LOS MOZOS, Patricia PIL matters relating to crowdfunding
MÄSCH Agency and conflict of laws


13.30 – 15.00  Lunch


15.00 -16.30  Plenary session III GLOBAL LITIGATION

Chair: Paul Beaumont

PERTEGÁS, Marta & Teitz, L.E. The benefits of regional and global litigation instruments for foreign trade and investment
CHILDRESS, Donald Earl Transnational litigation and PIL
GROSSE RUSE-KHAN, Henning A conflict of laws approach to competing rationalities in international law. The Case of Plain Packaging between IP, Trade, Investment and Health
UBERTAZZI, Benedetta Private International Law before the International Court of Justice
MAHER, Gerard & RODGER, Barry Countries, States, and Legal Systems: An International Private Law Perspective
TANG, Zheng Sophia Corruption in International Commercial Arbitration—Special Conflict of Laws Challenges


16.30 -17.00 Coffee Break

17.00 -18.00 Conference by A.G. Pedro Cruz Villalón

18.00 – 18.30  Concluding remarks and closing words by P. Beaumont