Two new titles from Prof. Pedro de Miguel (Universidad Complutense, Madrid), written in English, are to be found now in the institutional repository of the Universidad Complutense de Madrid. The first, “Transnational Contracts Concerning the Commercial Exploitation of Intengible Cultural Heritage” (click  here), is included in the book Il patrimonio culturale intangibile nelle sue diverse dimensioni, edited by T. Scovazzi, B. Ubertazzi y L. Zagato, based on the proceedings of the a conference held in Novedrate in April 2011. The second, entitled “International Conventions and European Instruments of Private International Law: Interrelation and Convention” (here), is one of the chapters of the book Quelle architecture pour un code européen de droit international privé, edited by M. Fallon, P. Lagarde, S. Poillot Peruzzetto,  based on a colloquium held in March 2011 at the University of Toulouse (see G. Buono’s post).

The University of Strasbourg will host a conference on Optional Harmonisation: Theory and Practical Applications on June 8th, 2012.

Topics will include the law of sales, intellectual property, company law and inheritance.

The full programme can be found here.

The latest volume of Recueil des cours, published by The Hague Academy of International Law, has recently been released. It contains an article by Adrian Briggs from the University of Oxford on “The Principle of Comity in Private International Law”. The abstract reads as follows:

The lectures examine the concept of comity, drawing particular attention to the twin principles of respect for sovereign acts done within the territory of a sovereign, and non-interference with the exercise of that power. They seek to show how rules on jurisdiction, foreign judgments, judicial assistance (and, to a limited extent, choice of law) are derived from and honour the principle of comity; and assess certain new developments in private international law in terms of their compatibility with the principle of comity.

The complete table of contents is available here.

Dan Stigall, who works at the U.S. Department of Justice, has posted International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law on SSRN.

With the dramatic rise in the frequency and scope of transnational criminal activity and the modern phenomenon of globalization, the interrelationship between international law and U.S. domestic law has come into sharper focus. From issues relating to international terrorism to more banal matters with distinct international dimensions, national courts in the modern era find themselves deciding cases with significant international elements and which have the potential to impact relations between sovereigns on the international plane. One area which is implicated across a broad range of legal topics and which has a natural propensity to affect international relations is the assertion of extraterritorial jurisdiction. This is due to the inherently conflict-generative nature of extraterritoriality.

In grappling with the need to address transnational issues in the context of a national legal system, domestic courts have increasingly looked to international legal principles, resulting in a level of penetration of international law in the national legal order. This Article explores the degree to which international law has permeated U.S. jurisprudence governing the exercise of extraterritorial jurisdiction over transnational criminal activity and the degree to which international law has been used by U.S. courts to limit or empower extraterritorial jurisdiction. Specific focus is given to the interrelationship between the limits imposed by international law, such as the “rule of reasonableness,” and due process limitations imposed by U.S. courts.

In reviewing a broad spectrum of U.S. judicial decisions, this Article demonstrates that the justifications for and against the exercise of extraterritorial jurisdiction in U.S jurisprudence are multifarious, revealing distinct analytical strata that are dependent upon the nature of the law being applied extraterritorially and the conduct regulated. For instance, regulatory laws impacting commercial markets have been made the subject of an analysis that is distinct from analysis applied to other forms of transnational criminal activity. Moreover, due to a split in U.S. jurisprudence, the analysis applied to that latter group of transnational crimes (those that do not impact international commercial markets), will further depend upon the judicial district.

This Article posits that the different approaches to these different sorts of legislation are entirely justifiable (and even logically necessary) due to the very obvious differences between civil actions involving U.S. antitrust law and criminal statutes that take on a transnational focus. Moreover, by understanding the role international law plays in each of these analyses, the similarities of the undergirding rationales, as well as the differences and potential dangers, policymakers and legal actors can work to clarify this otherwise discordant and fractured legal landscape and articulate a unified view of international law and limitations on the exercise of extraterritorial jurisdiction in U.S. domestic law.

The paper is forthcoming in the Hastings International and Comparative Law Review.

Laura E. Little, who is a professor of law at Temple University, has posted Internet Choice of Law Governance on SSRN.

As society and legal institutions have become more accustomed to internet communications and transactions, some legal thinkers urge that existing approaches to governance developed outside the internet context are well suited for resolving internet choice of law issues. In this essay, Professor Little argues against this position, observing that internet disputes continue to pose unique choice of law problems and to call for special focus on developing appropriate governance rules. Professor Little finds evidence of this need for special focus in several phenomena, including: (1) the continuing tendency of courts to pursue unilateral decision-making despite multi-jurisdictional interests or global effects of internet disputes; and (2) the legal and cultural clashes that arise in disputes implicating freedom of expression. The internet plays a crucial role in developing new cultural and creative forms, such as fan fiction, mashups, scanlations, and various forms of humor. This raises the stakes of identifying appropriate regulatory forms for internet communication. Special study of internet choice of law problems has the potential to provide the United States with insight into other countries’ methods of crediting human dignity in regulating hate speech and defamation as well as to create greater understanding among nations.

A new book about the unification of conflict of laws in Europe, edited by Professor Dr. Eva-Maria Kieninger and Professor Dr. Oliver RemienW, both University of Würzburg, has recently been released. More information including a German abstract can be found on the publisher’s website. The table of contents reads as follows:

• Einführung, Prof. Dr. Eva-Maria Kieninger, University of Würzburg
• Europäische Kollisionsrechtsvereinheitlichung: Überblick – Kompetenzen – Grundfragen, Prof. Dr. Wulf-Henning Roth, LL.M. (Harvard), University of Bonn
• Praktische Erfahrungen mit der Rechtsvereinheitlichung in der justiziellen Zusammenarbeit in Zivilsachen, Dr. Rolf Wagner, Federal Ministry of Justice, Berlin
• Die Rolle des EuGH im internationalen Privat- und Verfahrensrecht, Prof. Dr. Dagmar Coester-Waltjen, LL.M. (Michigan), University of Göttingen
• The Common Law and EU Private International Law, Trevor C Hartley, London
• Die Rechtswahl und ihre Grenzen unter der Rom I-VO, Prof. Dr. Andreas Spickhoff, University of Göttingen
• Die Haftung für Umweltschäden im Gefüge der Rom II-VO, Professor Dr. Karsten Thorn, LL.M. (Georgetown), Bucerius Law School, Hamburg
• Das Europäische Zivilprozessrecht im Spannungsfeld zwischen Beschleunigung und Beklagtenschutz, Prof. Dr. Astrid Stadler, Universitiy of Konstanz/University of Rotterdam
• Traum, Albtraum und Perspektiven der Europäischen Kollisionsrechtsvereinheitlichung – Schlusswort, Prof. Dr. Oliver Remien, University of Würzburg

67 shareholders of Vivendi have initiated civil proceedings in France against the French company.

Readers will recall that investors had initially sued Vivendi in the U.S. However, the U.S. Supreme Court decided in Morrison that U.S. securities law had no extra-territorial reach and thus did not apply to shares traded outside of the U.S. As a consequence, the federal court of Manhattan dismissed the claims of investors who had bought their shares in France in February 2011 (see In re Vivendi Universal, S.A. Securities Litigation).

The lawyer for the investors specifically referred to Morrison to explain why this new suit had been brought. Although his clients are not exclusively French and include for instance American funds, it seems that they had all purchased their shares on French markets.

An interesting issue will be whether weight will be given to the New York judgment which had found Vivendi liable for misleading investors in January 2001, before the Morrison decision. I suspect that a consequence of the dismissal of the claims of investors who had purchased shares in France is that the judgment does not stand anymore between them and Vivendi. The New York judgment probably cannot be res judicata. But foreign judgments can produce non-normative effects under the French law of judgments. For instance, they can be used as evidence of the occurence of certain facts. The New York judgment could possibly be used for that limited purpose.

Among all the buzz about a possible (but much feared) ‘Grexit’, there are two elements in the story of the Greek debt restructuring (diplomatically called ‘Private Sector Involvement‘) which should be of interest for conflict lawyers.

First the fact that the governing law of the Greek bonds was one of the central issues in the discussion which led to the restructuring. The law governing sovereign bonds is usually only a side issue which does not attract much attention – probably because so many of the bonds issued are governed either by English law or the law of New York. The Greek bonds (issued or guaranteed by Greece) which were subject of the restructuring were overwhelmingly governed by Greek law. This peculiar feature gave Greece much more leeway vis-à-vis the bondholders, as Greece could modify its law and by doing so directly impact the terms of the debt. To give one element of comparison, when Argentina restructured its debt in 2005, the vast majority of the bonds concerned were governed by either English law or the law of New York, as is common in the market.

Greece will, however, no be able to repeat this trick twice. This distinctive feature of the Greek bonds which were eligible for the swap (for a total amount of EUR 206 billion), will indeed disappear. The new bonds which were offered to the existing bondholders as compensation for the substantial haircut they had to swallow, are issued under English law while the older bonds (tendered in the exchange) were mostly Greek law bonds. This choice of law does make a difference as it means that investors holding the new bonds will not be subject to a change in Greek legislation which Greece could unilaterally decide to impose.

The second element worth noticing is the nature of the law adopted by Greece as part of its restructuring operation. The Act which was rushed through the Greek Parliament (but had been anticipated by some highly knowledgeable commentators), inserted so-called collective action clauses (CAC’s) in the documentation. This meant altering the terms of the debt, in a retroactive fashion. This move has been much discussed : rating agencies had warned that activating the CAC’s would trigger lowering the issue ratings on the debt issues concerned, ISDA’s determination committee also decided that the use of collective action clauses meant that a so-called Restructuring Credit Event had occurred and some have even warned that this move could be challenged under the BIT’s signed by Greece. Although the use of CAC’s has been widely promoted over the past decade, with the EU recently adopting its own versions of the CAC’s, the use of these clauses in the sovereign debt market remains a relatively novel phenomenon.

The Greek Act (Law 4050/2012 adopted by the Greek Parliament on 23 February 2012) introducing CACs in the terms of the outstanding Greek bonds allows for one single vote across all issues, an interesting feature. Even more interesting is that the law provides that its provisions

“aim to protect the supreme public interest, are mandatory rules effective immediately, prevail any contrary legislation of general or special provisions…” (translation courtesy of Andrea Koutras’ blog).

This is a clear reference to Article 9 of the Rome I Regulation and an attempt to strengthen the Greek legislation by elevating it to the status of ‘overriding mandatory provisions’. It remains to be seen whether this will be sufficient to ensure that the law will be applied whenever investors (private or institutional) institute legal proceedings against what some of them have deemed to be a ‘forced expropriation‘. It is indeed almost inevitable that the whole operation will lead to much litigation, which will raise interesting features of investment law and even human rights. Another issue which will be discussed is whether the Greek Mopping Up Law will be applied at all by courts and possibly arbitral tribunals called to decide on claims filed by investors. Given the limitations imposed by Article 9.3 of the Rome I Regulation on the application of foreign mandatory rules, the Regulation may offer a very limited protection to Greece if investors who have not accepted the bond swap but were nonetheless forced to take part on the basis of the CAC’s, succeed in bringing proceedings outside Greece.

Editors’ note: Patrick Wautelet is a professor of law at Liege University.

On 1 February 12 the German Supreme court has referred two questions concerning the interpretation of Article 15 I lit. c) Brussels I to the ECJ. Following the ECJ’s decisions in Pammer and Alpenhof which dealt  with the targeted activity-criterion of Article 15 I lit. c) Brussels I, the questions are meant to shed light on the provisions’ nexus-requirement:

1. Is there a matter relating to a consumer contract within the meaning of Article 15(1)(c) of Regulation No 44/2001 (1) if a trader has, by the design of his website, directed his activities to another Member State and a consumer domiciled in the territory of that Member State, on the basis of the information on the trader’s website, travels to where his business is located and the parties sign the contract there, or does Article 15(1)(c) of Regulation No 44/2001 presuppose in that case that a distance contract is concluded?

2. If Article 15(1)(c) of Regulation No 44/2001 is to be inter­ preted as meaning that in that case the contract must in principle be a distance contract: Does the consumer jurisdiction under Article 15(1)(c) in conjunction with Article 16(2) of Regulation No 44/2001 apply if the parties to the contract enter into a distance pre-contractual commitment which subsequently flows directly into the conclusion of the contract?

The question referred to the ECJ can be downloaded here (in English). The full decision is available here (in German).

The next event in the Herbert Smith Private International Law Seminar Series at the British Institute of International and Comparative Law will take place on Tuesday 29 May, from 5:30pm, at the Institute’s concrete bunker, Charles Clore House, Russell Square, London W1.

Entitled “Jurisdiction of the North-American Courts: When Will the Long Arm Reach You?”, the seminar will consider important recent case law of the US and Canadian Supreme Courts considering the grounds for asserting jurisdiction in cross-border cases, in particular J. McIntyre Machinery Ltd. v. Nicastro and Goodyear Dunlop Tires Operations S.A. v. Brown (US) and Club Resorts Ltd. v. Van Breda (Canada).

Professor Linda Silberman (Martin Lipton Professor of Law, New York University), Adam Johnson (partner, Herbert Smith LLP, London) and Alexander Layton QC (barrister, 20 Essex Street, London) will tackle the subject matter under the chairmanship of Lord Collins of Mapesbury.

To book your place, and for other details, please go to the Institute’s website: http://www.biicl.org/events/view/-/id/706/