The DIRECTORATE-GENERAL JUSTICE AND CONSUMERS of the Commission has recently published a further notice on the EU-Brexit saga in the field of civil justice and private international law.

The notice covers core aspects, such as international jurisdiction, applicable law, recognition and enforcement, specific European procedures (EPO, ESCP), judicial cooperation instruments (Service and Evidence Regulations), insolvency, ans other pertinent issues (public documents, legal aid, mediation).

The full text of the notice may be retrieved here.

On the occasion of the 70th birthday of Herbert Kronke, Professor emeritus of the University of Heidelberg, President of the German Institution of Arbitration and Arbitrator (Chairman, Chamber Three) at the Iran US Claims Tribunal at The Hague, Former Secretary-General of UNIDROIT, a large number of friends and colleagues gathered to honour a truly outstanding scholar with essays, edited by Christoph Benicke, Professor at the University of Gießen, Germany, and Stefan Huber, Professor at the University of Tübingen, in an impressive volume of nearly 2000 pages with more than 150 contributions from all over the world, many of them in English – highly recommended to browse through state of the art thinking and research on national, international and transnational law:

 

 

I. Internationales Privat- und Verfahrensrecht sowie Völkerrecht

Moritz BRINKMANN und Thomas VOGT GEISSE

Qualifikation und Anknüpfung von Instrumenten der prozessvorbereitenden Aufklärung

Eckart BRÖDERMANN

Vom Drachen-steigen-Lassen – Ein internationales Jura-Märchen zum IPR/IZVR

Hannah L. BUXBAUM

Capital Markets and Conflict of Laws: from Mutual Recognition to Substituted Compliance

Dagmar COESTER-WALTJEN

Der gewöhnliche Aufenthalt eines Neugeborenen im Internationalen Familienrecht

Anatol DUTTA

Gleichlauf von forum und ius – ein legitimes Ziel des internationalen Privatrechts?

Dorothee EINSELE

Der Erfüllungsort von Geschäften in Finanzinstrumenten

Omaia ELWAN und Dirk OTTO

Staaten und Staatsunternehmen im internationalen Schieds- und Zivilverfahrensrecht

Cecilia FRESNEDO DE AGUIRRE

Private International Law in Uruguay: Present and Future

Angelika FUCHS

Zum Klägergerichtsstand bei Auslandsunfällen

Horacio A. GRIGERA NAÓN

UNIDROIT Principles as Proper Law

Pascal GROLIMUND und Eva BACHOFNER

Örtlicher Gerichtsstand bei Vereinbarung der internationalen Zuständigkeit

Wolfgang HAU

Der Drittstaatsansässige als „Fremder“ im Rahmen der europäischen justiziellen Zusammenarbeit in Zivilsachen

Jan VON HEIN

Kollisionsrechtliche Aspekte neuer Formen des Erwachsenenschutzes

Christian HEINZE

Anforderungen an eine Auslandsklage zur Hemmung der Verjährung nach § 204 Abs. 1 Nr. 1 BGB

Dieter HENRICH

Ehe zu dritt

Stephan HOBE

50 Jahre Mondlandung – 40 Jahre Mondabkommen

Norbert HORN

Abwehr der Haftung für internationale Staatsanleihen durch

gesetzgeberische Selbstbedienung? Eine Nachlese

Cristina HOSS

The times they are a-changin’:

Die Immunität internationaler Organisationen im Wandel?

Peter HUBER

Der Cordanzug von Amazon –

Hinweispflichten bei Rechtswahl und Gerichtsstandsvereinbarung

Abbo JUNKER

Die Rück- und Weiterverweisung (Renvoi) nach dem Inkrafttreten der Europäischen Güter- und Erbrechtsverordnungen

Peter KINDLER

Urteilsfreizügigkeit für derogationswidrige Judikate? –

Ein rechtspolitischer Zwischenruf auf dem Hintergrund der 2019 HCCH Judgments Convention

Christian KOHLER

Parteiautonomie, zwingendes Recht und loyale Zusammenarbeit in der EU

Juliane KOKOTT und Wolfgang ROSCH

Eingriffsnormen und ordre public im Lichte der Rom I-VO, der Rom II-VO, der EuGVVO und der EU-InsVO

Vesna LAZI? and Sonja A. KRUISINGA

Prorogation of Jurisdiction:

Validity Requirements and Methods of Interpretation

Stefan LEIBLE und Felix M. WILKE

Funktionale Überlegungen zur kollisionsrechtlichen Wahl nichtstaatlicher Regelwerke

Walter F. LINDACHER

Kautionslastfreistellung nach § 110 Abs. 1 ZPO – Die causa Liechtenstein

Dirk LOOSCHELDERS

Gleichgeschlechtliche Ehen im Internationalen Privat- und Verfahrensrecht

Maria Chiara MALAGUTI

Sovereign Debt Restructuring and Protection of Creditors in the European Union through the Lenses of Most Recent Case Law

Heinz-Peter MANSEL

Zum Anwendungsbereich des Art. 24 Nr. 2 EuGVVO beim verschmelzungsbedingten squeeze out und Drittklagen gegen sachverständige Prüfer

Dieter MARTINY

Private international law aspects of geo-blocking and portability

Felix MAULTZSCH

Forumsfremde Eingriffsnormen im Schuldvertragsrecht

zwischen Macht- und Wertedenken

Francesca MAZZA

Von lachenden Doppelerben und anderen Streithähnen – Für ein neues Selbstverständnis des IPR als Recht der internationalen Integration im privatrechtlichen Bereich

Ralf MICHAELS

A Global Restatement of Private International Law?

José Antonio MORENO RODRÍGUEZ

The new OAS Guide on International Contracts

Peter Arnt NIELSEN

A Global Framework for International Commercial Litigation

Yuko NISHITANI

Kulturelle Identität und Menschenrechte im Internationalen Privatrecht

Luca G. RADICATI DI BROZOLO

Competition between Cross-Border Dispute Settlement Mechanisms: Domestic Courts, Arbitration and International Commercial Courts

– Procedural and Substantive Options for Litigants –

Oliver REMIEN

Drittstaatliche Handelsvertreter und die Richtlinie 86/653 in den Fängen der nationalen selbstbeschränkten Sachnorm und der Eingriffsnormenregelung

des Art. 9 Rom I-VO – Bemerkungen zu EuGH Rs. C-507/15 – AGRO 

Herbert ROTH

Der Gerichtsstand der unerlaubten Handlung nach Art. 7 Nr. 2 EuGVVO und die Bedeutung des Erfolgsorts für den Ersatz reiner Vermögensschäden

Giesela RÜHL

Die Haager Grundregeln über Rechtswahlklauseln in internationalen Handelsverträgen: Ein effizienter Rahmen für den Wettbewerb der Rechtsordnungen im Vertragsrecht?

Haimo SCHACK

Das auf Altersgrenzen anwendbare Recht

Stephan W. SCHILL

Linking Private and Public International Law: the Example of Determining

Corporate Nationality in Germany’s Investment Treaty Network

Anja SEIBERT-FOHR

La fonction et le contenu de la dignité humaine en droit international

Dennis SOLOMON

Internationale Entscheidungskollisionen zwischen staatlicher Gerichtsbarkeit und privater Schiedsgerichtsbarkeit

Andreas SPICKHOFF

Gerichtsstände und grenzüberschreitender Autokauf im Internet

Michael STÜRNER

Politische Interessen und Internationales Privatrecht

Karsten THORN und Marian THON

Der Auslandsbezug im IPR

Luboš TICHÝ

Fremdes Recht im Revisionsverfahren (Eine rechtsvergleichende Skizze über die Revisibilität des ausländischen Rechts)

Marc-Philippe WELLER, Jan-Marcus NASSE und Laura NASSE

Klimaklagen gegen Unternehmen im Licht des IPR

Matthias WELLER

The HCCH 2019 Judgments Convention: New Trends in Trust Management?

Volker WIESE

Der kollisionsrechtliche Rahmen für die grenzüberschreitende Verbraucherstreitbeilegung

Joachim ZEKOLL

Die Anerkennungsfähigkeit von Punitive Damages – Bedarf nach einer Neubewertung?

 

II. Rechtsvergleichung und Rechtsangleichung

Jürgen BASEDOW

Soft Law for Private Relations in the European Union

Spyridon V. BAZINAS

Does the World Need Another Uniform Law on Factoring?

Klaus Peter BERGER

Herbert Kronke und die „Schleichende Kodifizierung“ des transnationalen Wirtschaftsrechts

Hans-Georg BOLLWEG

Die Übereinkünfte von Kapstadt: beschlossene und künftige Protokolle – Innenansichten aus deutscher Perspektive –

Michael Joachim BONELL

The New Version of the UNILEX Data Base on the Unidroit Principles and the CISG – Upgraded in Form and Enriched in Content

Richard M. BUXBAUM

Montesquieu and the Cape Town Convention: of Bankruptcy and Civil Procedure

Remo CAPONI

Nuovi strumenti processuali europei di tutela collettiva

Heather CLARK, Barbara CONCOLINO and Ana MORALES RAMOS

The Broader Legacy of the Iran-United States Claims Tribunal

Michel DESCHAMPS

The Impact of the Cape Town Convention on the Assignment of Receivables

Nina DETHLOFF

Vielfalt oder Einheit? Ein Blick auf den Prozess der Angleichung des Familienrechts in den USA

Bénédicte FAUVARQUE-COSSON

Les trois paradoxes des Principes d’Unidroit relatifs aux contrats du commerce international

Marcel FONTAINE

L’harmonisation du droit des contrats dans les pays de l’OHADA :

Souvenirs et Perspectives

Martin GEBAUER

Zu den methodischen Ursprüngen funktionaler Rechtsvergleichung – Sachnorm, Kollisionsnorm und Qualifikation

Stefan J. GEIBEL

La « fiducie-fondation » : une alternative aux fondations à personnalité morale ?

Roy GOODE

Creativity and Transnational Commercial Law: from Karkhemish to Cape Town

Bernd GRZESZICK

Diversity in and by Law – the Example of Federal and State Constitutions

Christian HATTENHAUER

„Das ist Grönländisches Recht, und ein sehr Natürliches!“

Burkhard HESS

Prozessökonomie und Judicial Efficiency – Verfahrensmaximen im Schnittpunkt zwischen nationaler Kodifikation und internationaler Maßstabsbildung –

Stefan HUBER

Überregionale Privatrechtsangleichung: weiches hard law als modernes Erfolgsrezept

Erik JAYME

Giovanni Pieraccini (1918 – Viareggio – 2017) und die Entwicklung des Kunsthandelsrechts

Tatjana JOSIPOVI?

MAC Protocol and Croatian Registered Security Rights in Mining, Agricultural and Construction Equipment

Thomas KEIJSER

Enforcement of Security Interests in Transnational Commercial Law: Balancing Tradition and Innovation

Catherine KESSEDJIAN

Prendre la transnationalité au sérieux

Eva-Maria KIENINGER

Grenzüberschreitende Kreditsicherung an Mobilien 2019: Pretoria, Wien, Brüssel

Caroline KLEINER

Cryptocurrencies as Transnational Currencies?

Jens KLEINSCHMIDT

Einheit und Vielfalt im romanischen Rechtskreis am Beispiel der Vertragsaufhebung

Souichirou KOZUKA

The Cape Town Convention and the “Fitness” to the Context: Considering the Features of Aircraft, Rail and Space Financing

Sebastian KREBBER

Die Verzahnung von mitgliedstaatlichem Recht und punktuellen unionsrechtlichen Vorgaben bei der Angleichung von Arbeitsrecht

innerhalb der europäischen Union

Karl KREUZER

Religiöse Gerichte und religiöses Recht im modernen Staat

Hans KUHN

Zurück zu den Wurzeln: Die privatrechtliche Erfassung von Token im liechtensteinischen und schweizerischen Recht

Matthias LEHMANN

Vom internationalen Kapitalmarktrecht zum globalen Finanzmarktrecht

Thomas LOBINGER

Rechtsdogmatik und Rechtsvergleichung im europäischen Betriebsübergangsrecht

Robert MAGNUS

Rückholansprüche – Eine eigenständige Anspruchskategorie

Ulrich MAGNUS

CISG and Africa

Gerald MÄSCH

One Size Fits All? – Eine Skizze zum Beweismaß im Transnational Commercial Law 

Ewan MCKENDRICK and Stefan VOGENAUER

Supervening Events in Contract Law: Two Cases on the Interaction of National

Contract Laws, International Uniform Law and ‘Soft Law‘ Instruments

Charles W. MOONEY, JR.

Herbert Kronke: The Unidroit Years and Beyond

Peter-Christian MÜLLER-GRAFF

Algorithmen im Kartellrecht

Wolfgang OEHLER

Zu Nutzen und Notwendigkeit eines internationalen Einheitskaufrechts in einem leisen Gelehrtendisput zwischen Ernst Rabel und Hans Großmann-Doerth

Charalambos (Haris) P. PAMBOUKIS

Fragments of Legal Discourse on the Future of Global Law

?aslav PEJOVI?

Development of Carrier by Sea Liability: from Roman Law to the Rotterdam Rules

Andreas PIEKENBROCK

Der (Rück-)Erwerb des Nichtberechtigten – rechtsvergleichende Überlegungen zu einem Klassiker des Sachenrechts

Giuseppe B. PORTALE

Vom Codice Civile des Jahres 1942 zu den (Re)Kodifikationen: Die Suche nach einem neuen Handelsrecht

Teresa RODRÍGUEZ DE LAS HERAS BALLELL

Embracing Technological Disruption in International Transactions: Challenges for Legal Harmonization

Boris SCHINKELS

Fehlerhafte Produkte aus Fernost auf Amazon Marketplace – Für eine Produkthaftung transnationaler Warenhausplattformen als Quasi-Importeur

Kurt SIEHR

Unidroit Übereinkommen von 1995 über gestohlene oder

rechtswidrig ausgeführte Kulturgüter – Europäischer Kulturgüterschutz 25 Jahre nach dem Unidroit Übereinkommen

Rolf STÜRNER

Die Mündlichkeit im Zivilprozess – ein europaweit anerkanntes Verfahrensprinzip mit Zukunft?

Lajos VÉKÁS

Über das europäische Verbrauchervertragsrecht und die Herausforderungen bei der Umsetzung

Wolfgang WIEGAND

Brexit – ein Fall für die clausula rebus sic stantibus?

 

III. Handelsschiedsgerichtsbarkeit und Investor-Staat-Streitbeilegung

Mir-Hossein ABEDIAN and Reza EFTEKHAR

Invoking the Ground of Public Policy in Refusing the Recognition and Enforcement of an Arbitral Award Embodying the Remedy of Specific Performance

Georges AFFAKI

Arbitration in Banking and Financial Disputes Deconstructed

Rosemary BARKETT

A Call for More Specificity in Proposed Ethical Codes of Conduct Regarding the Submission of False Evidence in International Arbitration

Massimo V. BENEDETTELLI

“Harmonization” vs. “Pluralism” in the 1958 New York Convention: Balancing Party Autonomy with State Sovereignty

George A. BERMANN

The Self-styled “Autonomy” of International Arbitration

Charles N. BROWER

Harmonizing the Way Forward: Herbert Kronke

Giuditta CORDERO-MOSS

Towards Lean Times for Arbitrability?

Nadia DARWAZEH and Sarah LUCAS

From Paris with Love or How the French Courts Fight International Arbitral Awards Tainted by Corruption and Money Laundering

Giorgio DE NOVA

Arbitrato internazionale con sede in Italia e Prague Rules 

Siegfried H. ELSING

The New Approach to ISDS – Improvement or Setback?

Axel FLESSNER

Investitionsschutz und Schiedsrecht – Ein schräges Verhältnis

Daniel GIRSBERGER

Von Chamäleons und Hybriden in der grenzüberschreitenden Bewältigung von Wirtschaftskonflikten

Thomas JOHNSON and Sean COLENSO-SEMPLE

Investment Agreements between Developed Countries: Unintended Consequences and Disenchantment

Athanassios KAISSIS

Awards Set Aside in Their Country of Origin. Two Incompatible Schools of Thought

Christoph A. KERN

The Flight from ISDS

Katharina LUGANI

Das lex fori-Prinzip im Schiedsverfahrensrecht – ein überholter Theorienstreit?

Peter MANKOWSKI

Die Schriftform des Art. II (2) UNÜ und ihr Transfer in die digitale Moderne 1475

Werner MELIS

70 Jahre Internationale Handelsschiedsgerichtsbarkeit

Patricia NACIMIENTO, Dirk OTTO and Nicola PORT

The New York Convention and the Rule of Law: Obligation of the Tribunal to Prevent Surprises for the Parties?

Thomas PFEIFFER

Erstreckung von Schiedsvereinbarungen auf Organwalter von Gesellschaften

Jörg PIRRUNG (†)

EuGH und internationale Investitions(schieds)gerichtsbarkeit

Dorothee RUCKTESCHLER und Tanja STOOSS

Die vorzeitige Beendigung der Schiedsrichtertätigkeit

Jürgen SAMTLEBEN

Internationale Handelsschiedsgerichtsbarkeit in Lateinamerika – Eine Skizze 1529

Maxi SCHERER

Article II(2) of the New York Convention is Dead! Long Live Article II(2)! 1543

Christoph SCHREUER

Pre-Investment Activities

Rolf A. SCHÜTZE

Die Dutco-Entscheidung. Probleme der Schiedsrichterbestellung in Mehrparteienschiedsverfahren

Jamal SEIFI

Globalization of the International Arbitral Process: Trends and Implications

Bruno SIMMA and Jan ORTGIES

Six Considerations before You Begin Interim Measures Proceedings in International Arbitration

David P. STEWART

Sovereignty, Natural Resources, Injunctions, and the Public Policy Exception to the Enforcement of Foreign Arbitral Awards

Chris THOMALE

Rechtsprechung als Öffentliches Gut – Über die gesellschaftlichen Kosten der Schiedsgerichtsbarkeit

Christian TIETJE and Andrej LANG

The (Non-)Applicability of the Monetary Gold Principle in ICSID Arbitration Concerning Matters of EU Law

Rolf TRITTMANN and Nikolaos TSOLAKIDIS

Looking into the Crystal Ball: The Future of Commercial Arbitration and European Union Law

Wolfgang WURMNEST

Die Durchsetzung von Art. 101, 102 AEUV durch Schiedsgerichte: Ein Spannungsfeld

 

IV. Ausländisches und deutsches Privat- und Wirtschaftsrecht

Necla AKDA? GÜNEY

Ein neues Rechtsinstitut im türkischen Aktienrecht: Die Klage auf Auflösung aus wichtigem Grund

Neil ANDREWS

Contract Law: Interpretation and Breach

Christian BALDUS

Labeo oder Das Geld, die Macht und der Tod

Christoph BENICKE

Haftung des Herstellers für Mangelfolgeschäden im Wege des Händlerregresses

Talia EINHORN

The Israeli Statute on National Book Price Maintenance – A Critical Evaluation

Frédérique FERRAND

L’avenir de la Cour de cassation française : réformer ou révolutionner ?

Holger FLEISCHER und Yannick CHATARD

Zur Reform des französischen Gesellschaftsrechts durch die Loi PACTE: Intérêt social – raison d’être – société à mission

Henry Deeb GABRIEL

From Formalism to Instrumentalism: The Inevitability of the Decline of the Concept of Title in the American Law of Personal Property Security Rights 1735

Attila HARMATHY

Credit

Hideki KANDA

Rethinking Property Rights in the Digital Age

Julia KLAUER

Die Bestellung von Pfandrechten an einen Sicherheitentreuhänder

Edgar MATYSCHOK

Europäischer Know-how-Schutz und deutsche Berufsfreiheit

Salvatore PATTI

Il testamento pubblico della persona anziana «vulnerabile»

Jorge SÁNCHEZ CORDERO

Patrimoine Culturel – Réflexions mexicaines

Uwe H. SCHNEIDER

Ad-hoc-Publizität im Konzern

Klaus-Peter SCHROEDER

Franz Anton Wilhelm Gambsjäger (1752–1816) – Ein Heidelberger Rechtslehrer im Umbruch der Epochen

Markus STOFFELS

Sprachrisiko bei Abschluss von Arbeitsverträgen mit ausländischen Arbeitnehmern

 

The publisher’s website is here.

 

 

 

Marie-Luisa Loheide is a doctoral candidate at the University of Freiburg who writes her dissertation about the relationship between the status of natural persons in public and private international law. She has kindly provided us with her thoughts on a recent ruling by the German Constitutional Court.

According to Article 116 para. 2 of the German Basic Law (Grundgesetz – GG), every descendant of former German citizens of Jewish faith who have been forcibly displaced and expatriated in a discriminatory manner by the Nazi-regime is entitled to attain German citizenship upon request. This rule has been incorporated in the Basic Law since 1949 as part of its confrontation with the systematic violations of human rights by the Nazi-regime and is therefore meant to provide reparation by restoring the status quo ante.

Descendants (“Abkömmlinge”) as referred to in Article 116 para. 2 are children, grandchildren and all future generations without any temporal constraint. Regardless of their parents’ choice of citizenship, they have a personal right to naturalisation which is exercised upon request by reactivation of the acquisition of citizenship iure sanguinis. This very wide scope is legitimated by the striking injustice done by the Nazi-regime. Yet, according to the settled case law of the Federal Administrative Court, it had been limited by a strict “but-for” test: in order to solely encompass those people affected by this specific injustice. This meant that the descendant must hypothetically have possessed German citizenship according to the applicable citizenship law at the time of its acquisition which is usually the person’s birth. To put it more clearly, one had to ask the following hypothetical question: Would the descendant be a German citizen if his or her ancestor had not been expatriated by the Nazis?

Exactly this limiting prerequisite was the crucial point of the matter decided upon by the German Constitutional Court on 20 May 2020. In the underlying case, the hypothetical question described above would have had to be answered in the negative: Until its revocation in 1993, German citizenship law stated that children of an unmarried German father and a mother of other citizenship did not acquire the German citizenship of their father but only that of their mother, contrary to today’s principle of ius sanguinis-acquisition. As in casu the daughter of a forcibly displaced and expatriated former German emigrant of Jewish faith and a US-American mother was born outside marriage in 1967, she was denied the acquisition of the German citizenship. Whereas this was not criticised by the administrative courts seised, the German Constitutional Court in its ruling classified the denial as an obvious violation of the principle of equal treatment of children born within and outside marriage underlying Article 6 para. 5 GG as well as the principle of equal treatment of women and men according to Article 3 para. 2 GG, as alleged by the plaintiff. In its reasoning, the Court emphasised that an exception from the principle of equal treatment of children born outside marriage could only be made if absolutely necessary. This corresponds to the case-law of the European Court of Human Rights on Article 14 of the ECHR that a difference in treatment requires “very weighty reasons”. The former non-recognition of the family relationship between an unmarried father and his child, however, did obviously contradict the stated constitutional notion without being justified by opposing constitutional law. Out of two possible interpretations of “descendant” as referred to in Article 116 para. 2 GG the court must have chosen the one that consorts best with the constitution. According to the Constitutional Court, the more generous interpretation of descendant also prevents a perpetuation of the outdated notion of inferiority of children born outside marriage through Article 116 para 2 GG and corresponds to its purpose of reparation.

As the notion of inferiority of children born outside marriage has fortunately vanished, a clarifying judgment was highly overdue and is therefore most welcome. It is not acceptable that outdated notions are carried to the present through a provision of the Basic Law that is meant to provide reparation of Nazi crimes. Especially in post-Brexit times, the question dealt with has become more and more urgent with respect to people reclaiming their German citizenship in order to maintain their Union citizenship and the rights pertaining to it (see here).

In regard to conflicts law, this clarification of a key question of citizenship law is relevant to the determination as a preliminary issue (incidental question or Vorfrage) when nationality is used as a connecting factor. The judgment is likely to lead to more cases of dual citizenship that are subject to the ambiguous conflicts rule of Art. 5 para. 1 sentence 2 EGBGB.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

E. Schollmeyer: The effect of the entry in the domestic register is governed by foreign law: Will the new rules on cross-border divisions work?

One of the most inventive conflict-of-law rules that secondary law of the European Union has come up with, can be discovered at a hidden place in the new Mobility Directive. Article 160q of the Directive assigns the determination of the effective date of a cross-border division to the law of the departure Member State. The provision appears as an attempted clearance of the complicated brushwood of the registration steps of a cross-border division of a company. This article explores whether the clearance has been successful.

F. Fuchs: Revolution of the International Exchange of Public Documents: the Electronic Apostille

The Apostille is of utmost importance for the exchange of public documents among different nations. The 118 states currently having acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents issue, altogether, several millions of Apostilles per year in order to certify the authenticity of public documents emanating from their territory. Some years ago, the electronic Apostille was implemented, which allows states to issue their Apostilles as an electronic document. Interested parties may verify the authenticity of such an electronic document via electronic registers which are accessible on the internet. Whereas Germany has not yet acceded to that new system, 38 other jurisdictions already have done so.

G. Mäsch: Third Time Lucky? The ECJ decides (again) on the place of jurisdiction for cartel damages claims

In three decisions now the ECJ has dealt with the question of where the “place of the causal event” and the “place where the damage occurred” are to be located in order to determine, based on the ubiquity principle enshrined in Article 7(2) of the Brussels Ibis Regulation, the place of jurisdiction for antitrust damages (tort) claims. In this paper the overall picture resulting from the ECJ decisions in CDC Hydrogen Peroxides, flyLAL-Lithuanian Airlines and now Tibor-Trans is analysed. The place of the “conclusion” of a cartel favoured by the ECJ to determine the place of the causal event is not only unsuitable in the case of infringements of Art. 102 TFEU (abuse of a dominant market position), but also in cases of infringement of Art. 101 TFEU (prohibition of cartels). The same criticism applies to the ECJ’s localisation of the place where the damage occurred at the place where the competition is impaired and the victim of the cartel or the abuse of the dominant market position (claimant) sustained the financial loss. In this paper it is suggested to dock the place of the causal event to the actual seat(s) of the cartel offender(s) and the place where the damage occurred exclusively to the affected market.

J. Kleinschmidt: Jurisdiction of a German court to issue a national certificate of succession (‘Erbschein’) is subject to the European Succession Regulation

The European Succession Regulation provides little guidance as to the relationship between the novel European Certificate of Succession and existing national certificates. In a case concerning a German “Erbschein”, the CJEU has now clarified an important aspect of this relationship by holding that jurisdiction of a Member State court to issue a national certificate is subject to the harmonised rules contained in Art. 4 et seq. ESR. This decision deserves approval because it serves to avoid, as far as possible, the difficult problems ensuing from the existence of conflicting certificates from different Member States. It remains, however, an open question whether the decision can be extended to national certificates issued by notaries.

K. Thorn/K. Varón Romero: The Qualification of the Lump-Sum Compensation for Gains in the Event of Death Pursuant to Section 1371 (1) of the German Civil Code (BGB) in Accordance with the Regulation (EU) No. 650/2012

In “Mahnkopf” the CJEU had to decide whether the material scope of application of the Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4/7/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession also covers national provisions which, like Section 1371 (1) of the German Civil Code (BGB), grant the surviving spouse a lump-sum compensation for gains after the death of the other spouse by increasing his or her inheritance. Hence, this was a question of the qualification of Section 1371 (1) BGB, which had been discussed controversially in Germany for a long time and had only been clarified on a national level in 2015. The CJEU decided in favour of a qualification under inheritance law at the level of Union law, and thus took a view which contradicts that of the Federal Court of Justice (BGH) for national conflict of laws. The authors agree with the result of the CJEU but criticise the methodical approach to the implementation of the functional qualification. The article identifies the new questions and problems that will now have to be clarified by the German courts as a result of the CJEU decision and in this context analyses two recent decisions of Higher Regional Courts. The authors note that in the context of Section 1371 (1) BGB, the question of the (temporal) scope of application of the Regulation is likely to become more important in the future, asotherwise, in their opinion, the BGH case law will still have to be considered. Accordingly, in the opinion of the authors, for future German jurisdiction much will depend on whether the BGH adapts its previous case law to that of the CJEU.

P. Mankowski: Recognition and free circulation of names ‘unlawfully’ acquired in other Member States of the EU

The PIL of names is one of the strongholds of the recognition principle. The touchstone is whether names “unlawfully” acquired in other Member States of the EU must also be recognised. A true recognition principle implies that any kind of révision au fond is interdicted. Yet any check on the “lawfulness” or “unlawfulness” of acquiring a certain name abroad amounts to nothing else than a révision au fond.

M. Gernert: Termination of contracts of Iranian business relations due to US sanctions and a possible violation of the EU Blocking Regulation and § 7 AWV

US secondary sanctions are intended to subject European economic operators to the further tightened US sanctions regime against Iran. In contrast, the socalled Blocking Regulation of the European Union is intended to protect European companies from such extraterritorial regulations and prohibits to comply with certain sanctions. In view of the great importance of the US market and the intended uncertainty in the enforcement of US sanctions, many European companies react by terminating contracts with Iranian business partners in order to rule out any risk of high penalties by US authorities. This article examines if and to what extent the Blocking Regulation and § 7 AWV influence the effectiveness of such terminations.

B. Rentsch: Cross-border enforcement of provisional measures – lex fori as a default rule

Titles from provisional measures are automatically recognised and enforced under the Brussels I-Regulations. In consequence, different laws will apply to a title’s enforceability (country of the rendering of the provisional measure) and ist actual enforcement (country where the title is supposed to take effect). This sharp divide falls short of acknowledging that questions of enforceability and the actual conditions of enforcement are closely entangled in preliminary measure proceedings, especially the enforcement deadline under Sec. 929 para. 2 of the German Code of Civil Procedure (ZPO). The European Court of Justice, in its decision C-379/17 (Societ  Immobiliare Al Bosco Srl) refrained from creating a specific Conflicts Rule for preliminary measures and ruled that the deadline falls within the scope of actual enforcement. This entails new practical problems, especially with regard to calculating the deadline when foreign titles are involved.

A. Spickhoff: “Communication torts” and jurisdiction at the place of action

Communication torts in more recent times are mostly discussed as “internet torts”. Typically, such torts will be multi-state torts. In contrast, the current case of the Austrian Supreme Court concerns the localisation of individual communication torts. The locus delicti commissi in such cases has been concretised by the Austrian Supreme Court according to general principles of jurisdiction. The locus delicti commissi, which is characterised by a falling apart of the place of action and place of effect, is located at the place of action as well as at the place of effect. In the event of individual communication torts, the place of effect is located at the victim’s place of stay during the phone call or the message arrival. The place of action has to be located at the sending location. On the other hand, in case of claims against individual third parties, the place of effect is located at the residence of the receiver. The Austrian Supreme Court remitted the case to the lower court for establishing the relevant facts for jurisdiction in respect of the denial of the plaintiff’s claim. However, the court did not problematise the question of so-called “double-relevant facts”. The European Court of Justice, in line with the judicial practice in Austria and Germany, has accepted a judicial review of the facts on jurisdiction only with respect to their conclusiveness.

R. Rodriguez/P. Gubler: Recognition of a UK Solvent Scheme of Arrangement in Switzerland and under the Lugano Conventions

In recent years, various European companies have made use of the ability to restructure their debts using a UK solvent scheme of arrangement, even those not having their seat in the UK. The conditions and applicable jurisdictional framework under which the scheme of arrangement can be recognised in jurisdictions outside the UK are controversial. In Switzerland doctrine and jurisprudence on the issue are particularly scarce. This article aims to clarify the applicable rules of international civil procedural law as well as the requirements for recognition of a scheme of arrangement in Switzerland. It is held that recognition should be generally granted, either according to the 2007 Lugano Convention or, in a possible “no-deal Brexit” scenario, according to the national rules of private international law, or possibly even the 1988 Lugano Convention.

T. Helms: Foreign surrogate motherhood and the limits of its recognition under Art. 8 ECHR

On request of the French Court of Cassation the Grand Chamber of the European Court of Human Rights has given an advisory opinion on the recognition of the legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and its intended mother who is not genetically linked to the child. It held that Art. 8 ECHR requires that domestic law provides a possibility of recognition of a legal parent-child relationship with the intended mother. But it falls within states’ margin of appreciation to choose the means by which to permit this recognition, the possibility to adopt the child may satisfy these requirements.

Dear CoL Readers,

While we are all deeply concerned about the still growing dimensions of the coronavirus pandemic, we did not want to give up working on the programme of our conference.

Thanks to the HCCH, the Bonn PIL colleagues and our distinguished speakers, there is now a fantastic programme we would like to bring to your attention in this post (see below).

Meanwhile, we will closely follow the instructions of the University of Bonn as well as the German local and federal governments and travel restrictions in other countries to see whether the conference can take place on site. We have not yet given up optimism in this respect. Yet, safety must be first. This is why we are setting up structures for a video conference via zoom in case we need it. We assume that all of you would agree to proceeding via zoom if necessary. We will take a final and corona risk-averse decision on this during July and keep you posted. Please do not hesitate to register with us (sekretariat.weller@jura.uni-bonn.de) if you wish to be updated by email.

Looking forward to seeing you in Bonn in September!

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the European Commission (DG Trade, DG Justice), and and the German Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz)

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

Dates:

Friday, 25 September 2020, and Saturday, 26 September 2020.

Venue:

Friday:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Saturday:

Main Auditorium (Aula), Hauptgebäude, Am Hof 21, 53113 Bonn

Registration: sekretariat.weller@jura.uni-bonn.de

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:    INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 25 September 2020

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part 1: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 1: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.     Coffee Break

4.00 p.m.      Part II: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

1. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

2. Grounds for refusal

Prof Dr Francisco Garcimartín Alférez, University of Madrid

Discussion

5.30 p.m.     Panel Discussion: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries

Chairs of Part 3: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

RA Dr Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt

and perhaps more…

Discussion

7 p.m.          Conference Dinner

  

Saturday, 26 September 2020

9.00 a.m.      The context of the HCCH 2019 Judgments Convention

Chairs of Part 4: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling

3. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Créteil

4. Brexit…

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee Break

11:30 a.m.    Chairs of Part 5: Prof Dr Nina Dethloff / Prof Dr Matthias Lehmann

1. South European Neighbouring and Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

2. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

3. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle

4. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

Discussion

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

 

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2019: Consolidation and multilateralisation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January/February 2019 until November 2019. It provides an overview of newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss important decisions of the CJEU. In addition, the article looks at current projects and the latest developments at the Hague Conference of Private International Law.

B. Hess: The Abysmal Depths of the German and European Law of the Service of Documents

The article discusses a judgment of the Higher Regional Court Frankfurt on the plaintiff’s obligations under the European Service Regulation in order to bring about the suspension of the statute of limitations under § 167 of the German Code of Civil Procedure (ZPO). The court held that the plaintiff should first have arranged for service of the German statement of claim in France pursuant to Art. 5 Service Regulation because, pursuant to Art. 8(1) Service Regulation, a translation is not required. However, the article argues that, in order to comply with § 167 ZPO, the translation must not be omitted regularly. The service of the translated lawsuit shall guarantee the defendant’s rights of defense in case he or she does not understand the language of the proceedings.

H. Roth: The international jurisdiction for enforcement concerning the right of access between Art. 8 et seq. Brussel IIbis and §§ 88 et. seq., 99 FamFG

According to § 99 para. 1 s. 1 No. 1 German Act on Procedure in Family Matters and Non-Contentious Matters (FamFG), German courts have international jurisdiction for the enforcement of a German decision on the right of access concerning a German child even if the child’s place of habitual residence lies in another Member State of the Regulation (EC) No. 2201/2003 (EuEheVO) (in this case: Ireland). Regulation (EC) No. 2201/2003 does not take priority according to § 97 para. 1 s. 2 FamFG because it does not regulate the international jurisdiction for enforcement. This applies equivalently to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (KSÜ).

J. Rapp: Attachment of a share in a Limited Liability Partnership (LLP) by German courts

Attachment of a share in a Limited Liability Partnership (LLP) by German courts: Despite Brexit, the LLP still enjoys great popularity in Germany, especially among international law and consulting firms. Besides its high acceptance in international business transactions, it is also a preferred legal structure due to the (alleged) flexibility of English company law. In a recent judgement, the Federal Court of Justice (Bundesgerichtshof) had the opportunity to examine the LLP’s legal nature in connection with the attachment of a share in a Limited Liability Partnership. The court decided that German courts have jurisdiction for an attachment order if the company has a branch and its members have a residence in Germany. By applying § 859 Code of Civil Procedure, it furthermore ruled that not the membership as such but the share of a partner in the company’s assets is liable to attachment.

U. Spellenberg: How to ascertain foreign law – Unaccompanied minors from Guinea

The Federal Court’s decision of 20 December 2017 is the first of four practically identical ones on the age of majority in Guinean law. It is contested between several Courts of Appeal whether that is 18 or 21 years. As of now, there are nine published decisions by the Court of Appeal at Hamm/Westf. and five by other Courts of Appeal. For some years now, young men from Guinea have been arriving in considerable numbers unaccompanied by parents or relatives. On arrival, these young men are assigned guardians ex officio until they come of age. In the cases mentioned above, the guardians or young men themselves seized the court to ascertain that the age of majority had not yet been reached. The Federal Court follows its unlucky theory that it must not state the foreign law itself but may verify the methods and ways by which the inferior courts ascertained what the foreign law is. Thus, the Federal court quashed the decisions of the CA Hamm inter alia for not having ordered an expert opinion on the Guinean law. The CA justified, especially in later judgments, that an expert would not have had access to more information. With regards to the rest of the judgment, the Federal Court’s arguments concerning German jurisdiction are not satisfying. However, one may approve its arguments and criticism of the CA on the questions of choice of law.

D. Martiny: Information and right to information in German-Austrian reimbursement proceedings concerning maintenance obligations of children towards their parents

A German public entity sought information regarding the income of the Austrian son-in-law of a woman living in a German home for the elderly, the entity having initially made a claim for information against the woman’s daughter under German family law (§ 1605 Civil Code; § 94 para. 1 Social Security Act [Sozialgesetzbuch] XII). German law was applicable to the reimbursement claim pursuant to Article 10 of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Pursuant to § 102 of the Austrian Act on Non-Contentious Proceedings (Außerstreitverfahrensgesetz), and in accord with the inquisitorial principle, third persons like a son-in-law are also obligated to give information. The court applied this procedural rule and declared possible restrictions under Austrian or German substantive law inapplicable.

In the reverse case of an Austrian recovery claim filed in Germany, the outcome would be doubtful. While true that under German law an adjustment (Anpassung) might allow the establishment of an otherwise non-existing duty to inform, restrictions on the duty to disclose information pursuant to Austrian and German law make it difficult to justify such a claim.

M. Gernert: Effects of the Helms-Burton Act and the EU Blocking Regulation on European proceedings

For more than 20 years, each US president had made use of the possibility of suspending the application of the extraterritorial sanctions of the Helms-Burton Act, thus preventing American plaintiffs from bringing actions against foreigners before American courts for the „trafficking“ of property expropriated to Cuba. This changed as President Trump tightened economic sanctions against the Caribbean state. The first effects of this decision are instantly noticeable, but it also has an indirect influence on European court proceedings. In this article, the first proceeding of this kind will be presented, focusing on international aspects in relation to the Helms-Burton Act and the EU-Blocking-Regulation.

K. Thorn/M. Cremer: Recourse actions among third-party vehicle insurance companies and limited liability in cases of joint and several liability from a conflict of laws perspective

In two recent cases, the OGH had to engage in a conflict of laws analysis regarding recourse actions among third-party vehicle insurance companies concerning harm suffered in traffic accidents which involved multiple parties from different countries. The ECJ addressed this problem in its ERGO decision in 2016, but the solution remains far from clear. The situation is further complicated because Austria, like many European states, has ratified the Hague Convention on the Law Applicable to Traffic Accidents. This causes considerable differences in how the law applicable to civil non-contractual liability arising from traffic accidents is determined.

In the first decision discussed, the OGH endorsed the decision of the ECJ without presenting its own reasoning. The authors criticizes this lack of reasoning and outline the basic conflict of laws principles for the recourse actions among third-party vehicle insurance companies. The second decision discussed provides a rare example for limited liability in the case of joint and several liability. However, given that the accident in question occurred almost 20 years ago, the OGH was able to solve the problem applying merely the Convention and autonomous Austrian conflict of laws rules. The authors examine how the problem would have been solved under the Rome II Regulation.

A. Hiller: Reform of exequatur in the United Arab Emirates

In the United Arab Emirates, an extensive reform of the Code of Civil Procedure entered into force on 2 February 2019. The reform covers half of the Code’s provisions, among them the law regulating the enforcement of foreign judgments, arbitral awards and official deeds. This article provides an overview of the amendments made on the enforcement of foreign decisions and puts them into the context of the existing law. The article also sheds light on the procedure applying to appeals against decisions on the enforcement. The reform does away with the requirement of an action to declare the foreign decision enforceable. Instead, a simple ex parte application is sufficient, putting the creditor at a strategic advantage. However, with a view to arbitral awards in particular, important issues remain unadressed due to the somewhat inconsistent application of the New York Convention by Emirati courts.

Yesterday, the High Court of London decided two preliminary issues in a large group action, certified as a Group Litigation Order (sub no. 105), brought by about 91,000 owners or lessees of VW, Audi, Skoda and SEAT cars. The claim is brought, against the manufacturers of the affected vehicles (VW, Audi, Skoda, and SEAT), against the relevant VW financial services arm and against a variety of authorised UK based VW dealers. Article 8 no. 1 of the Brussels Ibis Regulation will have been of relevance to the foreign ones amongst the defendants. No express explanations are offered how claimants eligible for the UK group litigation are determined – presumably it depends on where the car was bought.

The precise personal/territorial scope of the respective mass litigations would have been interesting, since the proceedings in the UK are just some of many by disaffected VW owners around the world, and the outcomes for the claimants seem to differ quite substantially. As early as in 2015, a class-action similar to the UK one was commenced against VW in the Federal Court of Australia, on behalf of around 100,000 VW owners, which was settled for up to AusD 87 million. The total amount may go up to AusD 127 million, depending on the ultimate number of claimants. On 1 April 2020, the Federal Court of Australia approved the settlement of the Australian class actions. The settlement was approved on the basis of a Settlement Scheme developed by the solicitors for the applicants and made public here, that sets out the process by which claims can be registered, assessed and paid, and the Deed of Release and Settlement that was agreed between the parties, made publicly available by those solicitors here. In Germany, proceedings under the (quite restrictive) collective redress mechanism of the “Musterfeststellungsklage” were settled recently as well, in this case for up to € 830 Million in total in relation to around 400.000 claimants. These claimants still need to accept individually the offered sums until 20 April 2020 after receiving offers from VW based on the remaining value of their cars these days. Individual litigations outside the Musterfeststellungsklage about the influence of the amount of kilometres that the respective car has already run (amongst other issues) are reaching the German Federal Court of Justice these days (the hearings will take place on 5 May 2020). In addition, the Court of Justice of the European Union is dealing with other aspects of the VW case, see on CoL here.

The claim in the UK proceedings alleges a variety of causes of action against the Defendants, including fraudulent misrepresentation in relation to the sale of the affected vehicles. A number of those causes of action proceed upon the basis that the software function of the Engine amounts to a “defeat device” within the particular meaning of Article 3 (10) of EU Parliament and Council Regulation 715/2007 dated 20 June 2007. If so, then one consequence is that its use in the engine and thus, the sale of the affected vehicles, was unlawful, being prohibited by Article 5 (2) of the Regulation.

Thus, the question arose whether Brexit altered anything in this respect. This question is easy to answer at the moment, see para. 12: “Brexit makes no difference here because EU Law (including the jurisdiction of the CJEU) will continue to have effect as if the UK was still a Member State until the end of the transition period which is 31 December 2020”.

A further issue relates to the Claimants’ reliance on formal letters to VW, issued by the “competent authority” in Germany for these purposes, being its Federal Motor Transport Authority, the German “Kraftfahrtbundesamt” (“the KBA”) dated 15 October, 20 November, and 11 December 2015 (“the KBA Letters”). The Claimants contended that these letters constitute decisions that the software function is a defeat device, that those decisions bind the courts in Germany as a matter of German law, that they also bind other authorities in other Member States, including English courts, either as a matter of EU law or as a matter of German law and by reason of EU and/or English law, there is a conflicts rule to the effect that the question as to whether they bind the UK court must be decided by reference to their binding effect or otherwise under German Law, being the law of the seat of the KBA.

For a number of reasons, including analogies to competition law, the Court decided that the KBA’s finding binds all Member States (including their courts) as a matter of EU law. This is why the Court abstained from taking a decision on the alternative grounds advanced by the Claimants.

At the same time and independently from the binding effects of the KBA’s finding, the Court found on its own account that the affected vehicles did contain defeat devices. Another bad day for VW.

The full text of the judgment is available here.

The
fourth issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP,
published by CEDAM) was just released. It features:

Costanza Honorati,
Professor at the University Milan-Bicocca, La
tutela dei minori migranti e il diritto internazionale privato: quali rapporti
tra Dublino III e Bruxelles II-bis? (The Protection of Migrant Minors and
Private International Law: Which Relationship between the Dublin III and
Brussels IIa Regulations?; in Italian)

• Few studies have investigated the relation between Migration Law and PIL. Even less have focused on the interaction between Brussels IIa and Dublin III Regulations. The present study, moving from the often declared assumption that ‘a migrant minor is first of all a minor’ focuses on the coordination between the two Regulations and the possible application of Brussels IIa to migrant minors in order to adopt protection measures to be eventually recognized in all EU Member States or to possibly place a minor in another EU Member State.

Francesca C.
Villata,
Professor at the University of Milan, Predictability
First! Fraus Legis, Overriding
Mandatory Rules and Ordre Public
under EU Regulation 650/2012 on Succession Matters (in English)

• This paper aims at investigating: (i) how fraus legis, overriding mandatory rules and ordre public exceptions position themselves within the system of the Succession Regulation; (ii) whether they are meant to perform their traditional function or to pursue any alternative or additional objective; and (iii) which limits are imposed on Member States in the application of said exceptions and to what extent Member States can avail themselves of the same to preserve, if not to enforce, their respective legal traditions in this area, as acknowledged in Recital 6 of Regulation No 650/2012. The assumption here submitted is that the traditional notions to which those exceptions refer have been reshaped or, rather, adjusted to the specific needs of Regulation No 650/2012 and of the entire EU private international law system, which increasingly identifies in predictability the ultimate policy goal to pursue.

In
addition to the foregoing, the following comments are featured:

Michele Grassi,
Research Fellow at the University of Milan, Sul riconoscimento dei matrimoni contratti all’estero tra persone dello
stesso sesso: il caso Coman (On
the Recognition of Same-Sex Marriages Entered into Abroad: The Coman Case; in Italian)

• With its judgment in the Coman case, the Court of Justice of the European Union has extended the scope of application of the principle of mutual recognition to the field of family law and, in particular, to same-sex marriages. In that decision the Court has ruled that the refusal by the authorities of a Member State to recognise (for the sole purpose of granting a derived right of residence) the marriage of a third-country national to a Union citizen of the same sex, concluded in accordance with the law of another Member State, during the period of their residence in that State, is incompatible with the EU freedom of movement of persons. The purpose of this paper is to analyse the private-international-law implications of the Coman decision and, more specifically, to assess the possible impact of the duty to recognise same-sex marriages on the European and Italian systems.

Francesco Pesce,
Associate Professor at the University of Genoa, La nozione di «matrimonio»: diritto internazionale privato e diritto materiale
a confronto (The Notion of ‘Marriage’: Private International Law and
Substantive Law in Comparison; in Italian)

• This paper tackles the topical and much debated issue of the notions of ‘marriage’ and ‘spouse’ under EU substantive and private international law. Taking the stand from the different coexisting models of family relationships and from the fragmented normative approaches developed at the domestic level, this paper (while aware of the ongoing evolutionary trends in this field) focuses on whether it is possible, at present, to infer an autonomous notion of ‘marriage’ from EU law, either in general or from some specific areas thereof. The response to this question bears significant consequences in terms of defining the scope of application of the uniform rules on the free movement of persons, on the cross-border recognition of family statuses and on the ensuing patrimonial regimes. With specific regard to the current Italian legal framework, this paper examines to which extent characterization issues are still relevant.

Carlo De Stefano, PhD, Corporate Nationality in International
Investment Law: Substance over Formality (in English)

• Since incorporation is usually codified in IIAs as sole criteria for the definition of protected corporate ‘investors’, arbitral tribunals have traditionally interpreted and applied such provisions without requiring any thresholds of substantive bond between putatively covered investors and their alleged home State. By taking issue with the current status of international investment law and arbitration, the Author’s main proposition is that States revise treaty provisions dealing with the determination of corporate nationality so as to insert real seat and (ultimate) control prongs in coexistence with the conventional test of incorporation. This proposal, which seems to be fostered in the recent state practice, is advocated on the grounds of legal and policy arguments with the aim to combat questionable phenomena of investors’ ‘treaty shopping’, including ‘round tripping’, and, consequently, to strengthen the legitimacy of investor-State dispute settlement.

Ferdinando
Emanuele,
Lawyer in Rome, Milo Molfa, Lawyer in
London, and Rebekka Monico, LL.M.
Candidate, The Impact of Brexit on
International Arbitration (in English)

• This article considers the effects of the United Kingdom’s withdrawal from the EU on international arbitration. In principle, Brexit will not have a significant impact on commercial arbitration, with the exception of the re-expansion of anti-suit injunctions, given that the West Tankers judgment will no longer be binding. With respect to investment arbitration, because the BITs between the United Kingdom and EU Member States will become extra-EU BITs, the Achmea judgment will no longer be applicable following Brexit. Furthermore, English courts will enforce intra-EU BIT arbitration awards pursuant to the 1958 New York Convention. Investment treaties between the EU and third countries will not be applicable to the United Kingdom.

Finally, the
issue features the following case notes:

Cinzia Peraro, Research Fellow at
the University of Verona, Legittimazione
ad agire di un’associazione a tutela dei consumatori e diritto alla protezione
dei dati personali a margine della sentenza Fashion
ID (A Consumer-Protection Association’s Legal Standing to Bring
Proceedings and Protection of Personal Data in the Aftermath of the Fashion ID Judgment; in Italian)

Gaetano Vitellino, Research Fellow at
Università Cattaneo LIUC of Castellanza, Litispendenza e accordi confliggenti di scelta del foro nel caso BNP Paribas c. Trattamento Rifiuti
Metropolitani (Lis Pendens and Conflicting
Choice of Court Agreements in BNP Paribas
v. Trattamento Rifiuti Metropolitani; in Italian)

Gaetano Vitellino, Research Fellow at
Università Cattaneo LIUC of Castellanza, Note a margine di una pronuncia del Tribunale di Torino in materia
societaria (Remarks on a Decision of the Turin Tribunal on Corporate
Matters; in Italian)

Maria Caterina Baruffi (University of Verona) and Matteo Ortino (University of Verona) have edited the book «Trending topics in international and EU law: legal and economic perspectives». It collects the proceedings of the conference «#TILT Young Academic Colloquium», held in Verona on 23-24 May 2019 and organized by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The event fell within the activities of the research project «Trending International Law Topics – #TILT» supervised by Maria Caterina Baruffi and funded by the programme «Ricerca di base 2015» promoted by the University of Verona. It was specifically targeted to Ph.D. students and early career scholars, selected through a Call for Papers. The book publishes the results of their research with the aim of fostering the scientific debate on trending topics in international and EU law and their impact on domestic legal systems. 

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law; EU law, addressing both general aspects and policies; and law and economics.

With specific regard to private international law (Part II of the volume), contributions deal with family, civil and commercial matters. For the former aspect, the volume collects papers on topics such as the EU Regulations on property relationships of international couples, recognition of adoptions, free movement of same-sex registered partners and cross-border surrogacy; for the latter, the volume includes contributions on topics such as choice-of-court agreements in the EU in the light of Brexit, insolvency, service of process and counter-claims in the Brussels regime.

More information about the book and the complete table of contents are available here.

As of
today, Brexit has become reality – one more reason to think about the EU’s
Judicial Cooperation with third states:

The largest
proportion of EU economic growth in the 21st century is expected to arise in
trade with third countries. This is why the EU is building up trade relations
with many states and other regional integration communities in all parts of the
world. The latest example is the EU-MERCOSUR Association Agreement concluded on
28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020,
extra-EU trade with neighboring countries will further increase in importance. Another
challenge for the EU is China’s “Belt and Road Initiative”, a powerful global
development strategy that includes overland as well as sea routes in more than
100 states around the globe.

The
increasing volume of trade with third states will inevitably lead to a rise in
the number and importance of commercial disputes. This makes mechanisms for
their orderly and efficient resolution indispensable. China is already setting
up infrastructures for commercial dispute resolution alongside its belts and
roads. In contrast, there seems to be no elaborate EU strategy on judicial
cooperation in civil matters with countries outside of the Union, despite the
DG Trade’s realisation that “trade is no longer just about trade”. Especially,
there is no coherent plan for establishing mechanisms for the coordination of
cross-border dispute resolution and the mutual recognition and enforcement of
judgments. This is a glaring gap in the EU’s policy making in external trade
relations (see also, in an earlier post by Matthias Weller  on CoL on this matter: Mutual trust and judicial
cooperation in the EU’s external relations – the blind spot in the EU’s Foreign
Trade and Private International Law policy?).

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – are hosting a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the Hague Judgments Convention of 2019 as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of
speakers includes internationally leading scholars, practitioners and experts
from the Hague Conference on Private International Law (HCCH), the European
Commission (DG Trade, DG Justice), and the German Ministry of Justice and for Consumers
(Bundesjustizministerium der Justiz und für Verbraucherschutz).

The Conference is supported by the HCCH as one of the first European events for discussing the HCCH 2019 Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers
will kindly ask participants to contribute with € 75.- to the costs of the
event.  

Date:

Friday, 25
September 2020, and Saturday, 26 September 2020.

Venue:

Bonner Universitätsforum, Heussallee 18 – 22

Pre-Registration:

sekretariat.weller@jura.uni-bonn.de

Draft Programme

Friday, 25 September 2020

1.30 p.m.      Registration

2 p.m.           Welcome
note

Prof Dr Wulf-Henning Roth, University
of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

2.10 p.m.      Part 1: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 1: Matthias Weller /
Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the
Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang
Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.      Coffee
Break

4.00 p.m.      Part 2: Chances and Challenges of the HCCH 2019 Judgments Convention continued

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkman

3. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

4. Grounds for refusal

Prof Dr Paco Garcimartín, University of Madrid

Discussion

5.30 p.m.      Part 3: Panel Discussion – Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries, 60 min:

Chairs of Part 3: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc); Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”; Dr. Jan Teubel, German Ministry of Justice and for Consumers; RA Dr. Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt, and perhaps more…

Discussion

7 p.m.           Conference
Dinner

Saturday

9.30 a.m.      Part 4: The context of the HCCH 2019 Judgments Convention

Chairs: Prof Dr Moritz Brinkmann/Prof Dr Philipp Reuss

5. Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirlin

6. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Crétei

7. Brexit…

Dr
Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee
Break

11:30 a.m.    Part 4: The context of the HCCH 2019 Judgments Convention continued

Chairs: Prof Dr Nina Dethloff / Prof Dr Matthias Lehman

8. South European Neighbouring and Candidate Countries

Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

9. MERCOSUR – EU

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

10. Relations to International Commercial Arbitration

Jose Angelo Estrella-Faria, Former Secretary
General of UNIDROIT, Senior Legal Officer UNCITRAL Secretariat, International
Trade Law Division Office of Legal Affairs, United Nations (tbc)

Discussion

1 p.m.           Closing
Remarks

                     Matthias Weller