The first version of this post relied on an incorrect English translation of the ruling.

On February 21st, 2013, the Court of Justice of the European Union ruled in Prorail BV v. Xpedys NV  (Case 332/11) that the Evidence Regulation does not govern exhaustively the taking of cross-border evidence, and that courts of Member states may designate experts to take evidence directly abroad, without following one of the methods laid down by the Regulation.

On 22 November 2008, a freight train bound from Belgium to the Netherlands was derailed near Amsterdam. In 2009, a Belgian Court designated an expert, defining the scope of his task, most of which was to be carried out in the Netherlands. In the course of this investigation, the expert was to proceed to the scene of the accident in the Netherlands, and to all other places where he might be able to gather useful information in order to determine the causes of the accident, the damage suffered by the wagons and the extent of the damage.

One party challenged the decision and requested the task of the Belgian expert be limited to determining the damage in so far as that task could be carried out in Belgium, that no expert’s report on the Netherlands network and rail infrastructure or any account between the parties be authorised, or if his appointment were maintained, order that the expert carry out his activities in the Netherlands only in accordance with the procedure laid down in Regulation No 1206/2001.

The ECJ rules that Regulation No 1206/2001 applies as a general rule only if the court of a Member State decides to take evidence according to one of the two methods provided for by that regulation, in which case it is required to follow the procedures relating to those methods.

A national court wishing to order an expert investigation which must be carried out in another Member State is not necessarily required to have recourse to the method of taking evidence laid down in Articles 1(1)(b) and 17 of Regulation No 1206/2001.

There is one exception, however. The investigation which has been entrusted to the expert might, in certain circumstances, affect the exercise of the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.

Ruling:

Articles 1(1)(b) and 17 of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that the court of one Member State, which wishes the task of taking of evidence entrusted to an expert to be carried out in another Member State, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.

H/T: Maja Brkan

It has not been mentioned on this blog that the German Federal Supreme Court on August 15, 2012 referred the following question relating to the interpretation of Article 5 No. 3 of the Brussels I Regulation to the Court of the European Union (Case C-387/12 – Hi Hotel HCF SARL ./. Uwe Spoering):

Is Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?

The facts of the case are in large part disputed, but according to the Federal Supreme Court and for the sake of the preliminary ruling they are assumed to be as follows: the plaintiff (Uwe Spoering) is a photographer. On behalf of the defendant (Hi Hotel), a hotel operator in Nice in the South of France, he took various pictures of the hotel interiour. He granted defendant the right to use the photographs in his brochures and on his website. However, in 2008, the plaintiff found nine of his photographs (re-)printed in two photobooks, one published by Phaidon Press (based in Berlin, Germany) and another one published by Taschen (based in Cologne, Germany). Phaedon Press had received the photographs via a Paris based sister company. The sister company, in turn, had received the photograps from the defendant.

The plaintiff brought an action for copyright infringement in Germany asking for a prohibitory injunction as well as damages. He argued that German courts were competent to hear the case under Art. 5 no. 3 of the Brussels I Regulation. According to this provision a person who is domiciled in a Member State, may be sued in matters relating to torts, delict or quasi-delict in the court of the Member State where the harmful event occurred or may occur.  Plaintiff argued that the harmful event – the copyright infringement – occured in Germany because this is where Phaidon Press distributed the photographs. He further argued that defendant participated in the copyright infringement by handing over the photographs to Phaidon Press. Defendant, in contrast, argued that German courts did not have jurisdiction under Art. 5 No. 3 Brussels I Regulation since he handed over the photographs to Phaidon’s sister company in France and not in Germany.

With the preliminary question the German Federal Supreme Courts wants to know whether jurisdiction under Art. 5 No. 3 Brussels I Regulation covers claims for copyright infringment against accomplices if the accomplice (only) acted abroad.

The full text of the decision can be found here (in German). The reference to the CEU is available here (in English).

From 17  to 21 June, 2013 the Academy of European Law (ERA) will host a summer course on European Civil Litigation. The course is designed to introduce lawyers to practical aspects of cross-border litigation and will concentrate on practical issues, including the (new) Brussels I Regulation, the European payment order and the European small claims procedure. More information is available here.

From 25 to 27 February 2013 the Academy of European Law (ERA) will host a conference on “Cross-border Divorce and Maintenance: Jurisdiction and Applicable Law” in Dublin. The conference will provide information on the Brussels II bis Regulation, the Rome III Regulation as well as the Maintenance Regulation. Further information is available here. The programme reads as follows:

Monday, 25 February

• 08:45 Arrival and registration of participants

I. Cross-border divorce: jurisdiction and procedure

• 09:15 Opening session
• 09:45 Setting the scene: framework and key elements of cross-border cooperation in family matters
• 10:30 Coffee break
• 11:00 Cross-border divorce in the EU: jurisdiction, recognition andlis pendens
• 13:00 Lunch
• 14:30 Interaction of Regulation Brussels II bis with other EU legal instruments and mechanisms:
  • legal aid
  • service of documents
  • preliminary ruling procedure
  • alternative dispute resolution
• 15:30 Coffee break
• 16:00 Exercise I: Case studies on cross-border divorce
• 18:00 End of the first workshop day
• 19:30 Dinner

Tuesday, 26 February

II. Cross-border divorce: applicable law

• 09:00 Cross-border divorce in the EU: applicable law
• 10:30 Coffee break
• 11:00 The application of foreign law in a crossborder divorce case
• 12:00 Lunch
• 13:30 Exercise II: Case studies on the identification and application of foreign law in a divorce case
• 15:30 Coffee break

III. Cross-border maintenance

• 16:00 Jurisdiction and applicable law in crossborder maintenance cases
• 18:00 End of the second workshop day
• 19:30 Dinner

Wednesday, 27 February

• 09:00 Cooperation between Central Authorities and access to justice in cross-border maintenance cases
• 10:00 Exercise III: Case-study on a crossborder maintenance case
• 12:00 Coffee break

IV. EU initiatives on property regimes

• 12:30 The proposed legislation on property effects of marriage and registered partnership
• 13:00 Closing session
• 13:30 Lunch and end of the workshop

On April 25 and 26, 2013 the Academy of European Law (ERA) will host a conference on cross-border mediation, ADR & ODR. The conference will cover various aspects of cross-border alternative dispute resolution including the latest trends and developments in legislation at national, international and EU level. Further information is available here. The programme reads as follows:

Thursday, 25 April 2013

• 08:45 Arrival and registration
• 09:10 Welcome
  Angelika Fuchs

Moderator: Ana Gonçalves

I. CURRENT SITUATION OF MEDIATION IN A COMPARATIVE PERSPECTIVE

• 09:15 State of play following the implementation of the Mediation Directive: concepts and practice of mediation
  Jeremy Lack
• 09:45 Discussion
• 10:00 Integration of mediation in dispute resolution procedures, including the effects of mediation on limitation and prescription periods
  Carlos Esplugues
• 10:30 Discussion
• 10:45 Coffee break
• 11:15 Learning from the experience of others: what incentives for mediation are given?
  • The Netherlands, England and Wales: Naomi Creutzfeldt-Banda
  • France and Belgium: Vincent Tilman
  • Poland and Czech Republic: Rafal Morek
  • Italy and Spain: Carlos Esplugues
  • Portugal: Ana Gonçalves
• 13:00 Lunch

Moderator: Jeremy Lack

II. INNOVATIVE PROCESSES FOR CONSUMER
AND E-COMMERCE DISPUTE RESOLUTION

• 14:15 Consumer ADR & ODR: recent experiences in the member states
  Naomi Creutzfeldt-Banda
• 15:00 Discussion
• 15:15 Coffee break
• 15:45 Opportunities and challenges for ODR: how will consumers and traders benefit from the new EU legislation?
• 16:15 ODR and consumer protection: high standards or low costs? Taking a fresh look at the EU and UNCITRAL initiatives
  Hans Schulte-Nölke
• 16:45 Discussion
• 17:15 Towards an instrument on B2B ADR?
  Vincent Tilman
• 17:45 Discussion
• 18:00 End of the first conference day
• 19:00 Evening programme and dinner

Friday, 26 April 2013

Moderator: Diana Wallis

III. MEDIATORS AND MEDIATION PROCEDURE

• 09:00 How to ensure the quality of mediation? Code of conduct and professional law for mediators
  Manon Schonewille (live via videolink)
• 09:30 Discussion
• 09:45 Skills of (e-) mediators
  Ana Gonçalves
• 10:15 Discussion
• 10:30 Coffee break
• 11:00 Results of mediation and enforcement of mediation agreements
  Elena D’Alessandro
• 11:30 Discussion
• 11:45 Confidentiality in mediation
  • Functions of confidentiality
  • What information is subject to confidentiality?
  • Which persons are bound to respect it?

• Disclosure of information in subsequent litigation or enforcement proceedings
  Rafal Morek
• 12:15 Discussion
• 12:45 Self-regulation or regulatory approach: how to further encourage parties to the mediation table?
  Diana Wallis
• 13:15 Lunch and end of the conference

This is cross-posted by the author on Letters Blogatory, as well.

We previewed the Chafin case on this site when certiorari was granted last summer. It was decided yesterday by a unanimous Court. This is the second Hague Convention case to reach the Court in three years, and while the decision itself is not altogether surprising, Chief Justice Roberts does include an interesting discussion that touches on a wide array of transnational issues (outside of the family law context).

Chafin involves a U.S. Army sergeant and a Scottish woman he had married while stationed in Germany. The couple later moved to Alabama, and after their divorce, disputed the care of their daughter, who is now five years old. After obtaining a federal court order under the Hague Convention declaring that Scotland was the girl’s country of habitual residence, Mrs. Chafin returned to Scotland with the child. Sgt. Chafin appealed that decision to the Eleventh Circuit, but that court dismissed the case as moot because the child had already returned to Scotland, and was outside the court’s jurisdiction. Circuits have been deeply split over a fundamental and very practical question: Is the court’s jurisdiction over the dispute truly limited by the water’s edge? In other words, if the case were to be reversed on appeal, does the uncertainty of enforcement of the order abroad render the case moot?

The Supreme Court reversed the decision of the Eleventh Circuit because, in Chief Justice John Roberts’s words, “[t]his dispute is still very much alive.” “On many levels, the Chafins continue to vigorously contest the question of where their daughter will be raised. This is not a case where a decision would address ‘a hypothetical state of facts.’” The Respondent and the Eleventh Circuit, the Court held, “confuse[d] mootness with the merits.” To be sure, “Scotland [may] ignore a U.S. re-return order, or decline to assist in enforcing it,” but a litigants “prospects of success are … not pertinent to the mootness inquiry,” and the “uncertain[]” efficacy of the ultimate judgment “does not typically render cases moot.”

That was enough for Mr. Chafin to win before the Court, but here is where the decision got a bit more interesting for transnational litigants writ large. As I’ve discussed before elsewhere, the circuits are decidedly split on that standard for ordering antisuit injunctions, and recent high-profile cases illustrate the uncertainty surrounding injunctive orders when it concerns foreign parties living abroad. The Court in Chafin, however, noted the existence of its power to make such orders with little apparent concern. U.S. courts can “command[] [a party properly before it] to take action … outside the United States” under the pain of sanctions for non-compliance, the Chief Justice said. He then swiftly moved from an assertion of the Court’s inherent authority to an acknowledgment of its practical limits. Parties ignore our authority all the time, the Court seems to suggest (without expressly saying it that way, of course). For instance, U.S. Courts often “decide cases against foreign nations, whose choices to respect final rulings are not guaranteed.” So Argentine bondholders and an Alabama father find themselves in the same legal limbo. It remains true that a return order may not give Mr. Chafin his daughter, “just as a an order that [a foreign state] pay $100 million may not make a plaintiff rich.”

These propositions are little more than an interesting aside to the central holding of the case, but they illustrate the Court’s view of its tenuous place in the broader arena of transnational justice.

The Legal Committee on Legal Affairs of the European Parliament has issued a Draft Report on the proposal for a regulation of the European Parliament and of the Council on creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters on February 5th, 2013.

H/T: Beatrice Deshayes

The University of Luxembourg will host a lunchtime seminar on the validity of one way jurisdiction clauses on 27 February 2013.

The seminar, which will be held in French, will discuss the impact of the widely publicised case of the French Supreme court of September 2012 on contractual practices in France and Luxembourg.

The speakers will be Pascal Ancel, a leading scholar of French contract law who recently joined the university of Luxembourg, and myself.

More information can be found here.

I have just posted a few recent pieces on SSRN that relate to private international law.  These pieces are on forum non conveniens in U.S. courts, the role of ethics in international law, and international investment law.  I would welcome any comments.

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The fourth issue of 2012 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features three articles and two comments.

In the first article, Bruno Nascimbene, Professor of European Union Law at the University of Milan, offers a critical appraisal of fair trial and defense rights in antitrust proceedings before the Commission (“Equo processo e diritti della difesa nel procedimento antitrust avanti alla Commissione: necessità di una riforma?”; in Italian).

In the second article, Luca G. Radicati di Brozolo, Professor of International Law at the Catholic University of Milan, discusses non-national rules and conflict of laws in light of the Unidroit and Hague principles (“Non-National Rules and Conflicts of Laws: Reflections in Light of the Unidroit and Hague Principles”; in English).

In the third article, Manlio Frigo, Professor of International Law at the University of Milan, addresses the analogies and differentiations of, respectively, insolvency of undertakings and insolvency of States (“Insolvenza delle imprese e insolvenza degli Stati: analogie ed elementi di differenziazione” in Italian).

In addition to these articles, the following comments are also featured:

• Silvia Marino (Researcher in International Law at the University of Insubria), “Nuovi sviluppi in materia di illecito extracontrattuale on line” (New Developments in Online Torts; in Italian);
• Giulia D’Agnone (Ph.D. candidate in International Law at the University of Macerata), “L’interpretazione delle clausole sui waiting periods nella giurisprudenza dei tribunali ICSID: obblighi o raccomandazioni?” (The Interpretation of Clauses on Waiting Periods in the Case-Law of ICSID Tribunals: Obligations or Recommendations?; in Italian).

Indexes and archives of the RDIPP since its establishment (1965) are available on the website of the Department of Italian and Supranational Public Law of the University of Milan.