Another win for the West Tankers’ team in the latest round of the long running litigation. In a decision delivered on 4 April 2012 ([2012] EWHC 854 (Comm)), Flaux J held that EU law (specifically, the decision of the CJEU in West Tankers (Case C-185/07)) did not exclude the jurisdiction of the arbitral tribunal to award damages (specifically, equitable damages) for breach of an arbitration agreement by the bringing of proceedings before a national (Italian) court.

In his Lordship’s view (para. 68):

“In my judgment, arbitration falls outside the Regulation and an arbitral tribunal is not bound to give effect to the principle of effective judicial protection. It follows that the tribunal was wrong to conclude that it did not have jurisdiction to make an award of damages for breach of the obligation to arbitrate or for an indemnity.”

The staff of the U.S. Securities and Exchange Commission (SEC) has issued a Study on the Cross-Border Scope of the Private Right of Action Under Section 10(b) of the Securities Exchange Act of 1934.

After the Morrison case and the reform of the 1934 Act for the purpose of indicating that the Act applies extraterritorially for actions involving transnational securities frauds brought by the SEC and the U.S. Department of Justice, the Dodd-Frank Act directed the SEC to solicit public comment and then conduct a study to consider the extension of the cross-border scope of private actions in a similar fashion, or in some narrower manner, and to consider and analyze the potential implications on international comity and the potential economic costs and benefits of extending the cross-border scope of private actions.

The study eventually advances the following options regarding the cross-border reach of section 10(b) private actions:

Options Regarding the Conduct and Effects Tests. Enactment of conduct and effects tests for Section 10(b) private actions similar to the test enacted for Commission and DOJ enforcement actions is one potential option. Consideration might also be given to alternative approaches focusing on narrowing the conduct test’s scope to ameliorate those concerns that have been voiced about the negative consequences of a broad conduct test. One such approach (which the Solicitor General and the Commission recommended in the Morrison litigation) would be to require the plaintiff to demonstrate that the plaintiff’s injury resulted directly  from conduct within the United States. Among other things, requiring private plaintiffs to establish that their losses were a direct result of conduct in the United States could mitigate the risk of potential conflict with foreign nations’ laws by limiting the availability of a Section 10(b) private remedy to situations in which the domestic conduct is closely linked to the overseas injury. The Commission has not altered its view in support of this standard.

Another option is to enact conduct and effects tests only for U.S. resident investors. Such an approach could limit the potential conflict between U.S. and foreign law, while still potentially furthering two of the principal regulatory interests of the U.S. securities laws – i.e., protection of U.S. investors and U.S. markets.

Options to Supplement and Clarify the Transactional Test. In addition to possible enactment of some form of conduct and effects tests, the Study sets forth four options for consideration to supplement and clarify the transactional test. One option is to permit investors to pursue a Section 10(b) private action for the purchase or sale of any security that is of the same class of securities registered in the United States, irrespective of the actual location of the transaction. A second option, which is not exclusive of other options, is to authorize Section 10(b) private actions against securities intermediaries such as broker-dealers and investment advisers that engage in securities fraud while purchasing or selling securities overseas for U.S. investors or providing other services related to overseas securities transactions to U.S. investors. A third option is to permit investors to pursue a Section 10(b) private action if they can demonstrate that they were fraudulently induced while in the United States to engage in the transaction, irrespective of where the actual transaction takes place. A final option is to clarify that an off-exchange transaction takes place in the United States if either party made the offer to sell or purchase, or accepted the offer to sell or purchase, while in the United States.

Many thanks to Maria João Matias Fernandes for the tip-off.

ASIL-ESIL International Legal Theory Workshop Call for Papers

ASIL’s International Legal Theory Interest Group, in partnership with the European Society of International Law (ESIL) Interest Group on International Legal Theory, will hold a joint works-in-progress workshop at the University of Cambridge’s Lauterpacht Centre for International Law September 27–28, 2012.
The workshop’s theme is “Transatlantic Debates in International Legal Theory.” On many levels, the interaction between North American international legal scholarship and its European counterpart(s) is working very well. Time and again, however, one finds that the underlying theoretical or philosophical framework is radically different. In this workshop we would like to explore that difference without letting ourselves be defined by it. Contributions analyzing, criticizing, denying or celebrating the difference are welcome, as well as papers exemplifying the various theoretical approaches to international law, be they “American,” “European,” or neither. The most important function of this workshop is to intensify the transatlantic theoretical debate by bringing together scholars with diverse disciplinary, philosophical, and methodological perspectives to discuss cutting-edge research on international legal theory.
Up to 12 papers will be selected for presentation. Although discussants will be assigned to introduce the papers, all workshop participants will be expected to read all of the contributions in advance and come prepared to contribute to the discussion.  Interested participants should submit an abstract (1,000 words maximum) summarizing the ideas they propose to develop for presentation at the workshop. Submissions on all topics related to international legal theory are encouraged, but preference will be given to proposals that engage the workshop’s theme. Papers that have been accepted for publication prior to the workshop are eligible for consideration, provided that they will not appear in print before the workshop.

Abstract submissions should be sent to asil.esil.theory@gmail.com  by April 20, 2012. Successful applicants will be notified by May 11, 2012. Papers must be fully drafted and ready for circulation to participants by August 31, 2012. Questions regarding the workshop may be directed to Evan Criddle (ecriddle@law.syr.edu ) or Jörg Kammerhofer (joerg.kammerhofer@jura.uni-freiburg.de ).

Justin Desautels-Stein (University of Colorado Law School) has published Race as a Legal Concept in the last issue of the Columbia Journal of Race and Law (it is also available on SSRN here). The paper proposes to use a conflict of laws approach to address a problem which has traditionally been considered as beyond the scope of conflict of laws. It builds on the article of Knop, Michaels and Riles which did the same with respect to feminism and culture.

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little currency. The departure from this “classic liberal” conception of race, and its attendant and disturbing view of the function of race, did not, however, depart from the idea that race is a natural and organic part of being a human being. As this Article argues, this seminal background rule—that race is natural, neutral, and necessary—is deeply problematic and a substantial obstacle in the fight against the Supreme Court’s ascending anticlassification jurisprudence. Not to mention, it is also false. In an effort to make some headway against the idea that race is a natural idea, as opposed to a legal concept, the Article attacks the background rules of race via the unlikely field of Conflict of Laws. Taking the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 as a benchmark, the discussion first suggests an early functionalist view of voluntary school integration by way of an analogy to the early twentieth-century transformations occurring in Conflicts of Laws. Second, and in the alternative, the discussion then situates the facts of Parents Involved as literally a problem of Conflict of Laws. In both instances, the hope is to focus legal discourse on the background rules of race so as to empower a new and emancipatory anti-subordination jurisprudence.

On 7 and 8 May 2012 the Max Planck Institute for Comparative and International Private Law Hamburg hosts the forth Max Planck Post-Doc Conference on European Private Law. It invites European Junior Scholars to present and discuss their research work.

Further information is available here. The programme reads as follows:

MONDAY, 7 MAY 2012

• 8.30   Accreditation
• 8.50   Opening Statement, Reinhard Zimmermann
• 9.00   Error communis facit ius. Application and Distortion of a Roman Law Principle in Western and Eastern European Private Law Codifications, Péter Bónis
• 9.30    Unwinding of Failed Contracts, Joke Baeck
• 10.00  Discussion
• 10.45   Coffee Break
• 11.00   Roman Law in Comparative Perspective: Acquisitive Prescription, Jelle Erik Jansen
• 11.30   Functionalism in Personal Property Security, Hano Ernst
• 12.00  Discussion
• 12.45   Lunch
• 14.00  Estonia – a Test-Country for Common European Sales Law, Karin Sein
• 14.30   Discussion
• 14.55   New Developments as to Internet Related Infringements – Interest Analysis within the Frames of the Brussels I Regulation, Ulf Maunsbach
• 15.25   Discussion
• 15.50   Coffee Break
• 16.05   Law Applicable to Cross Border Defamation, Justyna Balcarczyk
• 16.35   The Country of Origin Principle after eDate Advertising, Jan-Jaap Kuipers
• 17.05   Discussion
• 19.00   Dinner at the Max Planck Institute
• 20.30   Closing Discussion

TUESDAY, 8 MAY 2012

• 9.00    Private International Law and Federalism. A Comparative Perspective (EU / US), Jeremy Heymann
• 9.30    Party Autonomy in the Field of Non-Contractual Liability Covered by Motor Vehicle Compulsory Insurance,Georgina Garriga
• 10.00  Discussion
• 10.45   Coffee Break
• 11.00   Exitprocedures for Minority Shareholders in Private Companies, Claartje Bulten
• 11.30   Is Corporate Law a Catalyst for Hedge Fund Activism? A Cross-Border Empirical Analysis, Dionysia Katelouzou
• 12.00   Discussion
• 12.45    Lunch
• 14.00   The Duty of Loyalty and the Corporate Opportunity Doctrine, Corrado Malberti
• 14.30    Risk and Regulation of Share Ownership: Different Kinds of Shares and Control-Enhancing Mechanisms (CEMs), Veikko Vahtera
• 15.00   Discussion
• 15.45    Coffee Break
• 16.00   Enforcement of Stock Exchange Rules: Highlightening the Interplay between Civil Law, Administrative Law and Penal Law, Nina Reiser
• 16.30    Discussion

On Friday 27 April 2012, an international symposium will be held in Brussels on “Cross-Border Class Actions: The European Way”. The symposium is part of an inter-university research project on judicial cooperation in regulatory matters and consumer protection. The event will be held at the Stanhope hotel, within a walking distance from the European Commission headquarters. Full details and registration form can be found online.

The programme is as follows:

9:00- 9:15: Welcome Speech

Andrée Puttemans, Dean of the Law Faculty of Université Libre de Bruxelles

Introduction to the conference

Arnaud Nuyts, Université Libre de Bruxelles

Part I – Aggregate Litigation as a New Regulatory Technique

Chair: George Arestis, Judge, European Court of Justice

9:15- 9:40: A Model Typology of Class Actions

Michael Karayanni, Hebrew University 

9:40- 10:20: Introducing a EU Regime for Collective Redress Litigation – The State of Play

• Maciej Szpunar, Ministry of Foreign Affairs (PL), University of Silesia,
• Lukasz Gorywoda, Université Libre de Bruxelles

 10:20-10:45: Collective Redress in the Post-Regulatory State

Horatia Muir Watt, Science-Po Paris

Part II – EU Cross-Border Collective Redress Litigation

Chair: Alexander Layton QC, 20 Essex Street, London

11:25-11:50: Collective Redress and the Brussels I Jurisdictional Model

Burkhard Hess, University of Heidelberg

11:50-12:15: The Consolidation of Collective Claims under Brussels I

Arnaud Nuyts, Université Libre de Bruxelles

12:15-12:40: Recognition, Enforcement and Collective Judgments

Richard Fentiman, University of Cambridge

Luch time: Keynote Speech

Salla Saastamoinen, European Commission

14:10-14:50: The Worldwide Reach of US Class Actions

• Ralf Michaels, Duke University
• Louise Ellen Teitz, Roger Williams University, Hague Conference

14:50-15:10: Collective Redress and Arbitration

Luca Radicati di Brozolo, Catholic University of Milano

Part III – Cross-Border Collective Redress in Specific Fields

Chair: Hakim Boularbah, Université Libre de Bruxelles

15:30-16:10: Collective Redress and Competition Policy

• Michael Hellner, University of Stockholm
• Lia Athanassiou, University of Athens

16:10-16:50: Collective Redress and Consumer Protection

• Cristina González Beilfuss, University of Barcelona
• Malgorzata Posnow, Université Libre de Bruxelles

16:50-17:30: Collective Redress and Financial Markets

• Anna Gardella, Catholic University of Milano
• Charalambos Savvides, University of Cyprus

18:00: Conclusions – Collective Redress and Global Governance

Nikitas Hatzimihail, University of Cyprus,

The creation of a private law applicable for all Member States of the European Union represents one of the most significant developments of our time. The legislature of the EU has, however, primarily limited itself to short-term considerations driven by the politics of the day. The framework of regulations that has been promulgated in the past two decades is, as a result, fragmentary and has failed to follow an over-arching systematic approach. Responding to this development, the Max Planck Institute for Comparative and International Private Law published in 2009 the Handwörterbuch des Europäischen Privatrechts. Now, the Oxford University Press has released the Max Planck Encyclopedia of European Private Law. More than merely a translation, it stands as an independent work tailored to the varying legal backgrounds of international readers. Consistent with the format of an encyclopedia, the core of the work is comprised by the approximately 500 keyword entries which are presented alphabetically. Yet on account of the complexity of the material, the Encyclopedia offers far more information than a simple dictionary. With an editorial focus on the foundational content and principles of European private law, the work may serve to orient scholarship and legal practice within the context of the legal unification increasingly pursued by the European legislator. The work has been edited by Institute Director Jürgen Basedow, Institute Director  Reinhard Zimmermann and former Institute Director Klaus J. Hopt, with Andreas. The authors of the keyword entries are primarily current or former fellows of the Institute but include also a number of external scholars having a close and special affinity to the Institute.

More information is available on the publisher’s website.

Leading Spanish private international law scholars have recently founded the Spanish Forum on Private International Law (Foro español de Derecho internacional privado – FEDIP). The Foro is meant to  promote the awareness on private international law issues in the Spanish society and to foster discussion on those issues among academics and other specialists in the field. One of the basic goals of the Foro is to enable its members to adopt a common position on current developments in private international law with a view to offer advice on the legislative processes both at national and EU level.

Two main areas have been selected as priority fields for the activities of the Foro in the coming months. First, the long-awaited proposal to adopt a New Spanish Act on International Judicial Cooperation in Civil Matters (covering issues such as cross-border service of judicial and extrajudicial documents, cooperation in the taking of evidence and recognition and enforcement of judgments). The need for legislative reform at national level in this area remains high in Spain given the inadequacy of its current legislation and the lack of progress within the EU as far as relations with non EU Member States are concerned. Secondly, attention will be devoted to the follow-up of current developments in EU Private International Law with a special focus on the implications of the envisaged EU regulation on succession and the evolution in the field of contract law.

Also in the first general assembly meeting the members of the executive committee of the Foro were elected: Juan José Álvarez Rubio, (Univ. País Vasco), Rafael Arenas García (Univ. Autónoma de Barcelona), Pedro De Miguel Asensio (Univ. Complutense de Madrid), Cristina González Beilfuss (Univ. Barcelona), Andrés Rodríguez Benot (Univ. Pablo de Olavide, Sevilla), M. del Pilar Diago Diago (Univ. Zaragoza) and Aurelio López-Tarruella Martínez (Univ. Alicante).

Horatia Muir Watt (Sciences Po Law School) has posted a new version of her paper on Private International Law as Global Governance: Beyond the Schism, from Closet to Planet on the PILAGG website. The abstract reads:

Despite the contemporary turn to law within the global governance debate, private international law remains remarkably silent before the increasingly unequal distrib tion of wealth and power in the world. By leaving such matters to its public international counterpart, it leaves largely untended the private causes of crisis and injustice affecting such areas as financial markets, levels of environmental pollution, the status of sovereign debt, the confiscation of natural resources, the use and misuse of development aid, the plight of migrating populations, and many more. This incapacity to rise to the private challenges of economic globalisation is all the more curious that public international law itself, on the tide of managerialism and fragmentation, is now increasingly confronted with conflicts articulated as collisions of jurisdiction and applicable law, among which private or hybrid authorities and regimes now occupy a significant place. The explanation seems to lie in the development, under the aegis of the liberal separation of law and politics and of the public and the private spheres, of an « epistemology of the closet », a refusal to see that to unleash powerful private interests in the name of individual autonomy and to allow them to accede to market authority was to construct the legal foundations of informal empire and establish gaping holes in global governance. It is now more than time to de-closet private international law and excavate the means with which, in its own right, it may impact on the balance of informal power in the global economy. Adopting a planetary perspective means reaching beyond the schism and connecting up with the politics of public international law, while contributing a specific savoir-faire acquired over many centuries in the recognition of alterity and the responsible management of pluralism.

One year after the expiry of the deadline set by the Directive 2008/122/EC of the European Parliament and the Council of 14 January 2009, on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange contracts,  the Spanish legislator has transposed it through the Royal Decree-Law 8/2012 of 16 March (BOE of March, 17), already in force. The Time-sharing Act (Act 42/1998 of 15 December) is repealed.

In addition to some rules on the language of pre-contractual information and the contract itself, Art. 17, entitled “Rules of private international law”, states that when according with the Rome I Regulation the applicable law is the of a non-member State of the EEA, the consumer may invoke the legal protection granted by the Royal Decree-Law in the following cases:

a) When the any of the inmovable properties concerned is located whithin the territory of a Member State of the European Economic Area.

b) In the case of a contract not directly related to immovable property, if the trader pursues commercial or professional activities in a Member State or by any means directs such activities to a Member State and the contract falls within the scope of such activities

Also on the applicable law, Annexes I to IV provide for standard forms for different types of contracts which include the following standard term: “In accordance with private international law, the contract may be governed by a law other than the law of the Member State in which the consumer is resident or is habitually domiciled, and disputes may be referred to courts other than those of the Member State in which the consumer has his habitual residence or domicile “

Art. 20 provides for the submission to arbitration and other ADR methods included in the list published by the European Commission on ADR for consumers contracts.