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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: Read 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.
News
Call for submissions: Kim Santow Law and Social Justice Essay Prize
Sydney Law School is pleased to announce the inaugural Kim Santow Law and Social Justice Essay Prize. For more information, see here.
Kim Santow Law and Social Justice Essay Prize 2022: Rules
- The Kim Santow Law and Social Justice Essay Prize is open to any student enrolled in an LLB or JD degree program at an Australian tertiary institution at the time of submission or within the previous six months.
- Essays must have been written in the 12 months before the submission deadline. A person may not submit more than one essay to the Competition in any given year.
- Essays must respond to the following proposition:
The NDIS is described as a shift from a welfare system to a market-based system, but there may be limitations in relying on competition and choice in the provision of disability support. Discuss. - Essays must be no more than 3,000 words. Essays exceeding this word limit will not be accepted. Footnotes if used, and bibliographies (required), are not included in the final word count.
- Essays must be submitted as a .pdf document by email to <law.reform@sydney.edu.au>.
- The deadline for submission of essays is 5.00 pm (AEDT) on Monday 31 October, 2022. No extensions will be allowed.
- Essays must meet the highest standards of academic integrity, and be fully and accurately referenced according to a recognised referencing standard (eg, AGLC, Harvard, MLA).
- Each person submitting an essay must declare that the essay is the person’s own original work. By submitting an essay, a person agrees that Sydney Law School may conduct an integrity check for copyright infringement or plagiarism.
- An essay that is submitted to the Competition must be accompanied by a separate cover page stating:
a. the author’s name, contact email and telephone number
b. a declaration of enrolment (see rule 1)
c. a declaration of time (see rule 2)
d. a declaration of integrity (see rule 7) - A submitted essay must not include any information – for example in a header or footer – that identifies the author, so that it can be marked anonymously.
- Eligible essays will be reviewed by a panel of experts against the following criteria:
1. Novelty: does the essay address a cutting-edge issue and/or contribute a novel perspective or analysis to the question
2. Argument: is the argument clear, compelling, well-developed and supported by evidence?
3. Clarity and structure: is the essay written clearly and concisely, and organised in a logical and effective way?
4. Accuracy: is the essay presented neatly and legibly, with few or no content, typographical, grammatical and referencing errors? - The best essay will be announced on 1 December, 2022 at the Kim Santow Experts Panel on Social Justice to be hosted at the Sydney Law School. The decision of the judging panel is final.
- The judging panel may in its discretion decline to award prizes.
- Subject to rule 13, the author of the Winning Essay will each receive a prize of AU$1000.
- The author of the Winning Essay will be offered academic support and advice to revise their work for submission for publication.
- The author of the Winning Essay agrees that if their essay is published (by any means, in any forum), that its publication will be accompanied by an acknowledgment that the essay won the Prize in the relevant year.
Please direct any inquiries to Mr Josh Pallas at <law.reform@sydney.edu.au>.
Call for papers: 2023 NGPIL Conflict of Laws’ Essay Prize
The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.
The first prize is ?120,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is ?80,000 Naira (NGN), and third prize is ?50,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.
Submissions to the Prize Committee must be received no later than January 9, 2023. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.
Second Issue of Journal of Private International Law for 2022
The second issue of Journal of Private International Law for 2022 was released today. It features the following interesting articles:
T Kruger et. al., Current-day international child abduction: does Brussels IIb live up to the challenges?
Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure
O Vanin, Assisted suicide from the standpoint of EU private international law
The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.
S Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?
The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.
Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.
The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.
The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.
After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.
The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.