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The Justice Initiative Frankfurt am Main 2017

Written by Prof. Dr. Dres. h.c. Burkhard Hess, Executive Director Max Planck Institute Luxembourg for Procedural Law

Against the backdrop of Brexit, an initiative has been launched to strengthen Frankfurt as a hot spot for commercial litigation in the European Judicial Area. On March 30, 2017, the Minister of Justice of the Federal State Hessen, Ms Kühne-Hörmann, organized a conference at which the Justice Initiative was presented. More  than 120 stakeholders (lawyers, judges, businesses) attended the conference. The original paper was elaborated by Professors Burkhard Hess (Luxembourg), Thomas Pfeiffer (Heidelberg), Christian Duve (Heidelberg) and Roman Poseck (President of the Frankfurt Court of Appeal). Here, we are pleased to provide an English translation of the position paper with some additional information on German procedural law for an international audience. The proposal has, as a matter of principle, been endorsed by the Minister of Justice. Its proposals are now being discussed and shall be implemented in the next months to come. The paper reads as follows: (more…)

Paris, the Jurisdiction of Choice?

On January 17th, the President of the Paris Commercial Court (Tribunal de commerce) inaugurated a new international division.

The new division, which is in fact the 3rd division of the court (3ème Chambre), is to be staffed with nine judges who speak foreign languages, and will therefore be able to assess evidence written in a foreign language. For now, the languages will be English, German and Spanish, as one juge speaking Spanish and two speaking German are currently on the court.

In an interview to the Fondation de droit continental (Civil law initiative), the President of the Court explained that the point was to make French justice more competitive and attract international cases. It also made clear that France was following Germany’s lead, where several international divisions were established in 2009 in Hamburg and Cologne.

French Commercial Courts

It should be pointed out to readers unfamiliar with the French legal system that French commercial courts are not staffed with professional judges, but with members of the business community working part-time at the court (and for free). In Paris, however, many of these judges work in the legal department of their company, and are thus fine lawyers.

Also, French commercial courts (and French civil courts generally) virtually never hear witnesses, so the issue of the language in which they may address the court does not arise.

Some issues

So, the new international division will be able to read documents in several foreign languages. However, nothing suggests that parties or lawyers will be able either to speak, or to write pleadings, in any other language than French. Lawyers arguing these cases will still need to file their pleadings in French, and thus to translate them in English beforehand for their clients. Furthermore, the interview of the Court’s President seems to suggest that using a foreign language will not be a right for the parties. Quite to the contrary, it seems that it will not be possible if one of the parties disagrees, and demands documents be translated in French.

Will that be enough to attract additional commercial cases to Paris?

I wonder whether introducing class actions in French civil procedure would have been more efficient in this respect.

For the full interview of the Court’s President, see after the jump.

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News

Lex & Forum 4/2021: A special on the 2019 Hague Convention on the Recognition of Foreign Judgments

In Memoriam Prof. Konstantinos D. Kerameus (21.4.1937-26.12.2021)

Professor Kerameus started his academic career at the Law School of the Aristotle University of Thessaloniki, in his home town, and completed his career at the University of Athens. He taught Civil Procedure, Comparative and International Procedural Law in Greek and other leading Universities abroad.

He was awarded Honorary Doctor of Laws by the Universities of Hamburg (1993), Paris II Pantheon-Assas (2000), Liege (2003) and Vienna (2003). He was the President of the International Academy of Comparative Law (1998-2006), Director of the Hellenic Institute of International and Foreign Law (1990-2007), member of the European Academy (since 1994), the International Union of Legal Science (since 1993) and the International Union of Procedural Law (since 1995)y. He represented Greece in the conference on the Lugano Convention, in the negotiations for the accession of Greece to the Brussels Convention, as well as in various committees for the harmonization of the law of contracts, torts and civil procedure in the EU.

His Report, co-authored with Dimitrios Evrigenis, on the accession of Greece in the Brussels Convention (OJ C-298/24-11-1986) has always been a leading guide in the field of European procedural law. The breadth of his interests also covered the work of the Hague Conference. In this context, he gave lectures on the topic of ‘Enforcement in the International Context’– Collected Courses of the Hague Academy of International Law (Volume 264), 1997.

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The 2019 Hague Convention on the Recognition of Foreign Judgments will make it possible for foreign, non-EU, decisions to be recognized under common terms in EU jurisdictions, and vice versa. The presentation of these developments is the main subject of the present issue (Focus).

The introduction (Praefatio) was conducted by the Greek Attorney General to the ECJ, Honorary President of the Council of State, Mr. Athanasios Rantos. The main topic of the issue was the subject of an online conference (3.12.2021), with the participation of experienced professionals on the topic in our country,and of leading foreign scientists, who participated in the works of the 2019 Hague Convention.

The general introduction was assigned to the Director of the Directorate-General for Justice of the European Commission, Dr. Andreas Stein, who participated in the works of the 2019 Convention as the head of the EU delegation.

The Chair of the meeting, Emeritus Professor of the Law School of Thessaloniki Ms. Anastasia Grammatikaki-Alexiou, who has repeatedly represented Greece in the works of the Plenary or Committees of the Hague Conference, and has taught at the  Hague Academy of International Law, outlined ‘[t]he great contribution of the Hague Conference in the field of private international law’.

Directly from the USA, the President of the American Association of Comparative Law, Professor of the Law School at Willamette University, Mr. Symeon Symeonides, who participated in the work of the 2019 Convention as the representative of the Republic of Cyprus, gave his valuable thoughts on the topic. Professor Symeonides presented the theme ‘The Hague Treaty for the Recognition of Foreign Decisions-The Lowest Common Denominator’, identifying the most interesting points of the Convention and highlighting critical aspects of its text.

Judge Dimitrios Titsias, Justice Counselor, Permanent Representation of Greece to the EU, explored ‘[t]he limits of EU’ s external jurisdiction over the Hague Conventions’. The rest of the panel analyzed the individual provisions of the Hague Conventions, which will be of considerable concern to our courts in the near future. Dr. Ioannis Revolidis, Lecturer of Media, Communications and Technology Law at the University of Malta, discussed the topic of the ‘Recognition and enforcement of international judgments after the revival of the Hague Convention’; Ms. Anastasia Kalantzi, Doctoral Candidate at the Aristotle University of Thessaloniki analyzed the topic ‘Points of convergence and divergence of the Hague Convention of 2005 and Regulation 1215/2012 on issues of extension of jurisdiction’; Dr. Vassilios Sarigiannidis, Head of the competent authority at the Ministry of Justice, presented the issue of ‘The system of cooperation between Central Authorities in the framework of the implementation of the 1980 and 1996 Hague Conventions on the protection of children’.

Among the judgments presented in this issue, a special mention has to be made of the following: the ECJ decision of 18.5.2021, Asocia?ia ‘Forumul Judec?torilor din Rumania’, with a comment by the associate in the International Hellenic University Ms. Raf. Tsertsidou, on the relationship between the regulations on the organization of justice in Romania and the requirements of the rule of law and the independence of the judiciary; the ECJ decision of 9.9.2021, Toplofikatsia Sofia, with a case comment by Judge Mr. Ant.Vathrakokilis; the ECJ decision of 3.9.2020, mBank S.A./PA, with a case comment by Judge Ms. St.-Ag. Kapaktsi.

Concerning national court decisions, it is worth mentioning the 2020 Supreme Court of Cyprus judgment (No 122/13, 143/13), with a case comment by Cypriot jurists Dr. N. Mouttotos, University of Bremen, and Dr. N. Kyriakides, University of Nicosia, regarding the effect of the Directive No 93/13 on consumer contracts in the reversal of the final judgment under national law; the judgment of the Greek Supreme Court No 820/2021, with a note by Dr. Ap. Anthimos and Solicitor (England/Wales) Dr. K. Voulgarakis, on the obstruction of the right to judicial protection by orders of courts of another Member State, which led to the submission of relevant preliminary question to the ECJ, as well as the decision of the Athens First Instance Court No 312/2019, with a case note by Dr. Ch. Meidanis, on the role of the jurisdiction of torts in case of the fall of a Greek warplane in a NATO exercise in Spain.

In the column of Scientific Topics, the volume hosts a study by Dr. G.-A. Georgiadis, on the 10-year anniversary of the 2007 Hague Protocol on the law applicable to maintenance obligations, while the L&F Praxis section presents the main problems of the EAPO, which raise many practical concerns, by Judge Mr. I. Valmantonis.

Out Now: Scraback on the Principle of Concentration of Conflicts in the Brussels Ia Regulation

Bianca Scraback has recently published an innovative book on international jurisdiction in contract and tort under the Brussels Ia Regulation, in which she develops a comprehensive solution for cases in which Article 7(1) and 7(2) vest special jurisdiction in the courts of more than one Member State.

Das Prinzip der Konfliktkonzentration in der Brüssel Ia-VOThe different solutions adopted by the CJEU to mitigate the problems resulting from a multiplicity of places of ‘contract performance’ or ‘harmful events’ are well-known. They range from the infamous ‘mosaic approach’ developed in Case C-68/93 Shevill (most recently confirmed in Case C-251/20 Gtflix tv) to a variety of centre-of-gravity approaches (see, eg, Cases C-386/05 Color Drack, C-204/08 Rehder, C-19/09 Wood Floor, and C-352/13 CDC Hydrogen Peroxide) to the unavailability of special jurisdiction (Case C-256/00 Besix). Still, the Court regularly accepts the coexistence of multiple fora with special jurisdiction.

Now, Scraback argues that this coexistence often violates the ‘principle of concentration of conflicts’, which she derives from Articles 5(2), 8, 21(1), 24, and 29–34 Brussels Ia, as well as the principles of legal certainty and proximity. After a detailed review of the existing case law, she comes to the conclusion that each of the approaches that have so far been applied by the CJEU also conflicts with core principles of the Regulation and fails to provide a unitary solution for both contract and tort cases.

Against this backdrop, Scraback proposes an approach of ‘limited choices’ for the claimant: as a starting point, based on the wording of the Regulation, any claimant must be free to select any forum that fulfils the requirements of Articles 7(1) or 7(2), without any limitation of its jurisdiction (thus rejecting the mosaic approach); yet, to protect the legitimate interests of the defendant, certain fora must be excluded based on the remote character of their connection to the dispute. More specifically, Scraback proposes to exclude all fora that can be considered subsidiary both in comparison to the overall tort or contractual obligation and in comparison to other available fora – which appears to require some kind of reverse centre-of-gravity analysis not dissimilar from a forum non conveniens test. While providing a serious alternative to the CJEU’s notoriously unconvincing approach to online torts, it can certainly be debated if this approach provides a better alternative to the answers found by the CJEU in all case. Still, Scraback’s ‘principle of concentration of conflicts’ offers an interesting new vantage point and useful frame of reference to think about a wide range of seemingly unrelated scenarios.

Call for Papers: SLS Conflict of Laws Section, King’s College, London, 2022

The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, would be delighted to receive abstract submissions from conflictoflaws.net readers, emphasising that there is an option to present virtually on the 8th September, with the 9th September reserved for in-person papers at Kings College, London. They have kindly shared the following call for papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2022 SLS Annual Conference at King’s College London – The links and connections to legal development.

This is a call for papers and panels for the conflict of laws section of the 2022 Society of Legal Scholars Annual Conference to be held at King’s College, from 6th – 9th September.  The conflict of laws section will meet in the second half of the conference on 8th – 9th September and will have four sessions, each lasting 90 minutes.

The Society of Legal Scholars’ 2022 annual conference explores how links and connections both within one legal system and across different legal systems work to influence the development of law.  Legal rules, ideas and concepts develop as a result of diverse influences, both internal and external to any legal system.   Existing studies have identified the importance of legal diffusion and of legal transplants between legal systems as agents of legal change and development.   Similarly, within one legal system the development of a particular subject matter is often undertaken as a result of borrowings or copying from another subject matter within the same legal system.  The importance of links and connections in legal development can be demonstrated in many different ways, including the examination of particular links between people, within institutional and political networks or with bodies in other legal systems. Proposals are invited for papers which consider, broadly or specifically, how links and connections have worked to influence legal development in any area of law.

The 2022 conference will be held in person at King’s College London on Tuesday 6th – Friday 9th September. A new online attendance option will allow delegates the opportunity to attend and to present papers virtually in the sessions held on the 7th and 8th of September, so, for the conflict of laws section, the 8th of September.  When submitting an abstract you must indicate whether you intend to present your paper in person or virtually in the event your proposal is accepted.  It will not be possible for presenters to deliver their paper online on the days which are listed as in person only since the facilities will be unavailable. The organisers anticipate that there may be somewhat greater opportunities to present papers in person. Papers which have been accepted on the basis that they are to be delivered in person cannot later be delivered online.

Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2022 conference.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 25th March 2022.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/3743/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers should not present twice at the conference at the expense of another credible paper.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

  • speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

  • speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
  • papers must not exceed 12,000 words including footnotes (as counted in Word);
  • papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
  • papers must not have been published previously or have been accepted or be under consideration for publication; and
  • papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
  • Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
  • The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 17th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm
Dr Bobby Lindsay