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.

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.

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).

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).

Geert Van Calster, Professor at the University of Leuven, authored a new text book on European Private International Law that 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.

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 12^th  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

Group 2 – CODIFICATION

Group 3 – TORTS – JURISDICTION

Group 4 – ARBITRATION

11.30 – 12.00 Coffee Break

12.00 – 13.30 Panels

Group 5 – MARRIAGE & MATRIMONIAL PROPERTY

Group 6 – GENERAL PIL

Group 7 – RECOGNITION AND ENFORCEMENT IN THE EU

Group 8 – COMPANY LAW & FINANCE

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

15.00 – 16.30 Panels

Group 9 – SUCCESSION

Group 10 – CONTRACTS

Group 11 – BRUSSELS I RECAST – JURISDICTION

Group 12 – JURISDICTION & ENFORCEMENT

16.30 – 17.00 Coffee Break

17.00 – 18.30 Panels

Group 13 – TORTS- APPLICABLE LAW

Group 14 – INSOLVENCY

Group 15 – SALES/CESL

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

Friday 13^th  September 2013

9.30 -11.00  Plenary session I RECOGNITION & ENFORCEMENT

Chair: Francisco J. Garcimartín Alférez

11.15 -11.45  Coffee break

11.45 – 13.15  Plenary session II CONTRACTS & TORTS

Chair: Pedro A. De Miguel Asensio

13.30 – 15.00  Lunch

15.00 -16.30  Plenary session III GLOBAL LITIGATION

Chair: Paul Beaumont

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

Ralf Michaels (Duke Law School) has posted Globalization and Law: Law Beyond the State on SSRN.

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished — globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state — territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need to move away from the traditional paradigm of both social and legal studies: methodological nationalism. I do not answer here how this paradigm should be replaced, but I discuss one prominent candidate of a meta-theory: transnational law. Transnational law, I suggest, helps transcend dichotomies of methodological nationalism that have become unhelpful: between domestic and international, between public and private, and between law and society

The paper is forthcoming in Law and Social Theory (Bannaker & Travers eds., Oxford, Hart Publishing, 2013).

Last week, the French Supreme Court for private and criminal matters (Cour de cassation) set aside three series of enforcement measures carried out by NML Capital Ltd against the Republic of Argentina in three judgments dated 28 March 2013 (see here, here and here).

Readers will recall that NML Capital Ltd was the beneficial owner of bonds issued by Argentina in year 2000. As the relevant financial contracts contained a clause granting jurisdiction to New York courts, the creditor sued Argentina before a U.S. federal court, and obtained in 2006 a judgment for USD 284 million. In the summer 2009, NML Capital initiated enforcement proceedings in Europe.

The contracts also contained a waiver of immunity from enforcement. NML Capital first attached assets covered by diplomatic immunity. In a judgment of 28 September 2011, the Cour de cassation ruled that the waiver did not cover diplomatic assets. This was because, the Court explained, diplomatic immunity is governed by special rules which require a waiver to be both express and specific, i.e. provide specifically that it covers diplomatic assets. As the Court was aware that the 1961 Vienna Convention only provides that waiver of diplomatic immunity should be express, the Court ruled that the special rules governing diplomatic immunity were to be found in customary international law.

This time, NML Capital focused on non diplomatic assets. It attached monies owed by French companies to Argentina through their local branches (and could thus be attached from France). The assets were public, however: they were tax and social security claims. But, at first sight, they fell within the scope of the waiver. Indeed, I understand that the Republic of Argentina had waived immunity “for the Republic, or any of its revenues, assets or property”.

Requirements for Waiving Sovereign Immunity

International law is changing really fast in Paris, however. The Cour de cassation decided to extend its new doctrine that waiver of immunity of enforcement should be both express and specific to public assets. The new rule is that waivers should specifically mention the assets or categories of assets to which they apply. As a consequence, as the waiver did not specifically mention, the Court found, tax and social revenues, it did not apply to them.

The judgments also explain that the new rule originates from customary public international law, as reflected in the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. This is clearly the most creative part of the judgments.

Article 19 of the 2004 Convention reads:

Article 19
State immunity from post-judgment measures of constraint
No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or

I am not sure where the requirement that the waiver be asset specific appears.

Furthermore, when Germany argued that Article 19 reflected customary international law in the Jurisdictional Immunities of the State case, the International Court of Justice responded:

117. When the United Nations Convention was being drafted, these provisions gave rise to long and difficult discussions. The Court considers that it is unnecessary for purposes of the present case for it to decide whether all aspects of Article 19 reflect current customary international law.

Human Rights

Interestingly enough, the Cour de cassation also refers to several judgments of the European Court of Human Rights which held that rules on sovereign immunities necessarily comply with the ECHR as long as they reflect international law.

In other words, the French court recognizes that should it grant a wider immunity to foreign states than the one recognized by international law, it might infringe the European Convention. The ECHR also considers that the 2004 UN Convention reflects customary international law, but would it read Article 19 as liberally as the Cour de cassation?

On June 7 and 8, 2013 the Max Planck Institute for Comparative and International Private Law Hamburg will host a symposium on “International Private Law in China and Europe“. The registration form is available here.

The programme reads as follows:

FRIDAY, 7 JUNE 2013

• 9.00 Registration
• 9.15 – 9.30 Welcome
• 9.30 – 11.10 Jurisdiction, Choice of Law, and the Recognition of Foreign Judgments in Recent Legislation
  • 9.30 – 9.50 Jin Huang
  • 9.50 – 10.10 Herbert H.P. Ma
  • 10.10 – 10.30 Stefania Bariatti
  • 10.30 – 11.10 Discussion

• 11.10 – 11.30 Coffee break

• 11.30 – 13.10 Selected Problems of General Provisions
  • 11.30 – 11.50 Weizuo Chen
  • 11.50 – 12.10 Rong-Chwan Chen
  • 12.10 – 12.30 Jürgen Basedow
  • 12.30 – 13.10 Discussion

• 13.10 – 14.15 Lunch

• 14.15 – 16.00 Property Law
  • 14.15 – 14.35 Huanfang Du
  • 14.35 – 14.55 Yao-Ming Hsu
  • 14.55 – 15.15 Louis d’Avout
  • 15.15 – 16.00 Discussion

• 16.00 – 16.15 Coffee break

• 16.15 – 18.00 Contractual Obligations
  • 16.15 – 16.35 Qisheng He
  • 16.35 – 16.55 Jyh-Wen Wang
  • 16.55 – 17.15 Pedro de Miguel Asensio
  • 17.15 – 18.00 Discussion

SATURDAY, 8 JUNE 2013

• 9.00 – 10.40 Non-Contractual Obligations
  • 9.00 – 9.20 Guoyong Zou
  • 9.20 – 9.40 En-Wei Lin
  • 9.40 – 10.00 Peter Arnt Nielsen
  • 10.00 – 10.40 Discussion

• 10.40 – 11.00 Coffee break

• 11.00 – 12.40 Personal Status (Family Law/Succession Law)
  • 11.00 – 11.20 Yujun Guo
  • 11.20 – 11.40 Hua-Kai Tsai
  • 11.40 – 12.00 Katharina Boele-Woelki
  • 12.00 – 12.40 Discussion

• 12.40 – 13.45 Lunch

• 13.45 – 15.30 Company Law
  • 13.45 – 14.05 Tao Du
  • 14.05 – 14.25 Wang-Ruu Tseng
  • 14.25 – 14.45 Marc Philippe Weller
  • 14.45 – 15.30 Discussion

• 15.30 – 15.45 Coffee break

• 15.45 – 17.30 International Arbitration
  • 15.45 – 16.05 Song Lu
  • 16.05 – 16.25 Ful-Dien Li
  • 16.25 – 16.45 Carlos Esplugues Mota
  • 16.45 – 17.30 Discussion

• 17.30 – 18.00 Conclusions
• 18.00 End of Conference
• 19.00 Reception by the Free and Hanseatic City of Hamburg

This special issue of the Journal of Intellectual Property, Information Technology and E-Commerce Law (JIPITEC) presents a collection of papers given at the inaugural meeting of the International Law Association’s Committee on Intellectual Property and Private International Law held at the University of Lisbon on March 15-17, 2012.

• International Jurisdiction in Intellectual Property Disputes (Paulius Jurcys)
• Infringement and Exclusive Jurisdiction in Intellectual Property: a Comparison for the International Law Association (Benedetta Ubertazzi)
• IP and Applicable Law in Recent International Proposals: Report for the International Law Association (Matulionyte Rita)
• Recognition and Enforcement of Foreign Judgments in Intellectual Property: a Comparison for the International Law Association (Benedetta Ubertazzi)
• Internet Intermediaries and the Law Applicable to Intellectual Property Infringements  (Pedro De Miguel Asensio)
• Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities (Axel Metzger)

H/T: Bernd Justin Jütte.