Views
The CJEU settles the issue of characterising the surviving spouse’s share of the estate in the context of the Succession Regulation
It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterized? Read more
Torture, Universal Civil Jurisdiction and Forum Necessitatis: Naït-Litman v. Switzerland before the ECtHR
On March 15 the ECtHR, sitting as the Grand Chamber,decided on the Naït-Litman v. Switzerland case (application no. 51357/07), against the applicant and his claim of violation of Article 6 ECHR. Independently on whether one agrees or not with the final outcome, for PIL lawyers and amateurs the judgment (for very busy people at least the press release) is certainly worth reading. Read more
The Pitfalls of International Insolvency and State Interventionism in Slovenia
Written by Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)
The most interesting development in European private international law and European insolvency law seems the Croatian AGROKOR case. Rulings of English courts have been reported (see e.g. Prof. Van Calster’s blog, Agrokor DD – Recognition of Croatian proceedings shows the impact of Insolvency Regulation’s Annex A.)[1] However, a new and contrary development seems to be an order by the Slovenian Supreme Court in case Cpg 2/2018 of 14 March 2018.[2] Read more
News
Inter-American Juridical Committee (CJI) of the OAS adopts Guide to Best Practices in International Jurisdictional Cooperation for the Americas
Earlier this month, the Inter-American Juridical Committee of the Organization of American States (OAS) adopted a Guide to Best Practices in International Jurisdictional Cooperation for the Americas. It is available here (in English) and here (in Spanish).
See in particular questions 5 and 7, which relate to electronic service and videoconferencing (pp. 18 and 26). The actual Guide begins on page 38.
Out Now: The Common Law Jurisprudence of the Conflict of Laws
Few books can get you from the rainy coast of Newfoundland over 19th-century Holstein straight to sunny Queensland and back to the North of Pennsylvania, while telling stories of a retired MI5 agent, the largest Ponzi scheme in history, a company founded by the 41st President of the United States, the aftermath of the First Gulf War, and the collapse of the Federal Bank of Australia. The volume on The Common Law Jurisprudence of the Conflict of Laws, edited by Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court), recently published by Hart, does just that, by discussing cases like Vita Food Products, Brook v Brook, Bonython v Commonwealth of Australia, AG v Heinemann Publishers (better known as the Australian Spycatcher case), Bremen v Zapata, Vizcaya v Picard, and Kuwait Airways (Nos 4 and 5).
New Article in Uniform Law Review
Today, the Uniform Law Review published a private international law article titled: CSA Okoli, “The Significance of a Forum Selection Agreement as an Indicator of the Implied Choice of Law in International Contracts: A Global Comparative Perspective”.
The abstract reads as follows:
Where the parties to an international contract fail to specify the choice of law, a forum selection agreement is one of the most, if not the most, significant factors to consider in implying the choice of law in many international, supranational, regional instruments, and national jurisdictions. However, it is an ill-defined, notoriously complex, and hotly debated issue as to the weight that should be attached to a forum selection agreement in implying the choice of law. Hence, this article is devoted to discussing this topic from a comparative perspective, in order to propose a guide to global uniform criteria. To achieve this, the article covers all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared include those from the global North and global South, including common law, civil law, and mixed legal systems. The article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in such cases as where a forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. The aim of the proposal is to contribute to greater uniformity, predictability, and certainty in the global community in this field of law.