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After the Romans: Private International Law Post Brexit
Written by Michael McParland, QC, 39 Essex Chambers, London
On 10 December 2018 the Ministry of Justice published a draft statutory instrument with the pithy title of “The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2018”. This indicates the current intended changes to retained EU private international law of obligations post Brexit. Read more
The renaissance of the Blocking Statute
Written by Markus Lieberknecht, Institute for Comparative Law, Conflict of Laws and International Business Law (Heidelberg)
Quite a literal “conflict of laws” has recently arisen when the EU reactivated its Blocking Statute in an attempt to deflect the effects of U.S. embargo provisions against Iran. As a result, European parties doing business with Iran are now confronted with a dilemma where compliance with either regime necessitates a breach of the other. This post explores some implications of the Blocking Statute from a private international law perspective. Read more
Service of documents in the European Judicial Space: on the Commission’s proposal for amending Regulation 1393/2007
Guest post by Dr. Stefano Dominelli of the University of Milan
In recent times, the European Commission has investigated the possibility of amending Regulation 1393/2007 on the service of judicial and extra-judicial documents between Member States. Such instrument has already settled some issues practitioners encountered under the application of the previous legal framework, in particular related to the administrative cooperation regime, the linguistic exception to service, and direct service by registered mail – or equivalent measure.
The need for a proper functioning of the cross-border service of documents mechanisms is properly highlighted in the Commission’s proposal, and new rules are suggested to further implement the system.
A recent volume, Current and future perspectives on cross-border service of documents, by Stefano Dominelli (Univ. of Milan, Dep. of International, Legal, Historical and Political Studies), explores and addresses the Commission’s proposals.
The functioning of Regulation 1393/2007 is in the first place reconstructed by the author in particular by taking into consideration the case law of a number of Member States. It is against this background that the proposed amendments are commented.
Amongst the numerous points, the book dwells upon proposed new art. 3a, and its possible impact. Acknowledging technical evolutions, communication and exchange of documents between transmitting and receiving agencies in the diverse Member States should in the future strongly rely on e-transmission. According to proposed new art. 3a, only if electronic transmission is not possible due to an unforeseen and exceptional disruption of the decentralised IT system, transmission shall be carried out by the swiftest possible alternative means. The author advises caution in the matter, as the Commission itself argues in the explanatory memorandum of the proposal that modern channels of communication are in practice not used due to old habits, legal obstacles, and lack of interoperability of the national IT systems. In this sense, the work proposes that, at least for time being, a transition to e-transmission between agencies should be encouraged as an alternative method of transmission, rather as being the only available option.
A number of proposals are made as regards the right of the addressee to refuse service on linguistic grounds. In the first place, with a solution supported in the volume, a new Annex to the Regulation should clearly set out the means and methods of the addressee to refuse service, a matter that is currently not expressly dealt with by the regulation.
The time frame for the addressee to refuse service based on linguistic grounds should become two weeks, rather than one, a solution that is strongly endorsed by the author of the volume as it is deemed to be a more satisfying point of balance between the opposing interests of the prospective plaintiff and the defendant.
Nonetheless, the work highlights that some issues that have emerged in the case law still are not addressed in the Commission’s proposal. In the first place, conflict of laws and international civil procedure issues are not referenced in the text, even though questions as the competent court before which violations of the rules on service can be invoked or which court has to investigate on the legitimate refusal to service based on linguistic grounds, have consistently been addressed by judges.
Additionally, the Commission’s proposal gives to this day no clear indication on the refusal to service based on linguistic grounds when the addressee is a corporation, a matter that, according to the author, should deserve at least some guidance in the recitals of the instrument.
The volume can be freely downloaded at https://ssrn.com/abstract=3259980
News
Pax Moot Court Competition Peter Nygh round: the results
The Peter Nygh Round (2023) of the Pax Moot court was held in Antwerp from 3 to 5 May – the preliminary days at the University of Antwerp and the semi-finals and finals at the Antwerp court.
This year saw the highest number of registered teams yet for the PAX Competition (37 teams). 28 teams made it to the oral rounds. 48 judges, lawyers and academics invited took up the role as judge in the competition.
The winner of the oral rounds was the University of Ljubljana, with the University of Vienna as runner-up. The teams of the University of Maastricht and Singapore Management University made it up to the semi-finals.
The University of Vienna won the prize for the best written memorials, with the University of Ghent in second place and the University of Sofia third.
Best pleader was Matej Iglicar (University of Ljubljana), followed by Maximilian Murtinger and in third place Gustav Kirchauer (both of the University of Vienna).
The European Commission co-funds the competition.
Next year’s Pax Moot court competition will take place from 24 to 26 April in Ljubljana.
The Digital Services Act (DSA) – International Aspects: Event on 17 May
On May 17th, 2023, the Department of Law of the University of Urbino (Italy), will host an event titled “The Digital Services Act (DSA): International Aspects – Aspects Internationaux” co-organized with the Centre de recherche de droit international privé et du commerce international de l’Université Paris-Panthéon-Assas and the University of Malaga.
The DSA (Regulation (EU) 2022/2065), submitted along with the Digital Markets Act (DMA), has been approved on October 19th, 2022, and shall apply from February 17th, 2024. It will amend the Directive 2000/31/EC (Directive on Electronic Commerce) and introduce a wide-ranging set of new obligations on digital platforms regarding illegal content, transparent advertising and disinformation.
Confirmed speakers include Marie-Elodie ANCEL (Université Paris-Panthéon-Assas, CRDI), Maria Isabel TORRES CAZORLA (University of Malaga), Basile DARMOIS (Université de Brest), Federico FERRI (Université de Bologne); Valère NDIOR (Université de Brest, IUF), Edoardo Alberto ROSSI (University of Urbino), Massimo RUBECHI (University of Urbino).
The main topics that will be discussed include the European legal framework within the DSA has been adopted, the conflict of laws methods, online content moderation, the cooperation between relevant national and European authorities and the available remedies in case of violation of the rights of users.
The event can be followed both face-to-face and remotely, on the Zoom platform.
See here for information about the program and how to register
Common Law Jurisprudence on Conflict of Laws
Sarah McKibbin and Anthony Kennedy (editors) recently published a book with Hart titled: Common Law Jurisprudence in Conflict of Laws. The blurb reads as follows:
This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The ‘unusual factual situations’ of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.
Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.