The second issue of 2011 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht includes the following articles on the Brussels I Recast (contributions on Provisional Measures and Arbitration), Service of Documents and the new Chinese Private International Law Act:

Jolien Kruit, Voorlopige maatregelen: belangrijke wijzigingen op komst voor de (natte) praktijk!?, p. 271-279. The English abstract reads:

In its proposal to amend the Brussels I Regulation (COM(2010) 748), the European Committee has proposed several changes to the current rules on provisional, including protective, measures, as set out in Article 31 of the Brussel I Regulation and the case law of the European Court of Justice. Most strikingly, the Committee has proposed (1) that an obligation be implemented for the preliminary judge to cooperate with the Court where proceedings are pending as to the substance; and (2) that provisional measures, including – subject to certain conditions – measures which have been granted ex parte, are to be enforced and recognized, if they have been granted by a Court having jurisdiction on the substance of the case. This paper discusses these suggested changes and their consequences for daily practice. It is argued that if the proposed changes are implemented as suggested, serious problems may arise and that the Courts will have to give a reasonable interpretation to the provisions in order to create a practicable and useful regime.

Jacomijn J. van Haersolte-vanHof, The Commission’s Proposal to amend the arbitration exception should be embraced!, p. 280-288. An excerpt from the introduction reads:

This contribution will first address the current state of the law, based on the present text of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the ‘Regulation’) and the main case law of the European Court of Justice. Furthermore, the background and contents of the Commission Proposal1 will be discussed. This leads to an overview of the main reasons why the Commission’s Proposal for a review of this Regulation should be accepted. (…) this contribution is based on the role attributed to the author at the Colloquium held on 25 January 2011 in The Hague, organized by the T.M.C. Asser Institute and the Stichting Dutch Legal Network for Shipping Transport, namely to defend the Commission’s Proposal. In fact, this role had been designated even before the Commission’s point of view had been published. The author was happy to defend this position, also when the Commission’s Proposal was released. At the same time, it should be noted that, initially, the author hoped for and supported a more exhaustive solution for arbitration to be incorporated into the Regulation. Nevertheless, a partial solution at this stage is to be preferred over the complete absence of any solution. But, as this contribution will show, it is not easy to provide for a partial solution. Hopefully, the legislative process will allow certain amendments and fine-tuning further to improve the present Proposal.

Vesna Lazic, The amendment to the arbitration exception suggested in the Commission’s Proposal: the reasons as to why it should be rejected, p. 289-298. The conclusion reads:

The solution suggested in the Commission’s Proposal is both disproportionate and inadequate to meet the needs of the commercial parties. There is a clear discrepancy between the ‘problem’ allegedly intended to be resolved and the amendments suggested in the Proposal for doing so. The suggested measure of transferring the court intervention in the pre-arbitration phase from one jurisdiction to another can hardly be explained by reasons such as ‘enhancing the effectiveness of arbitration agreements’ and enhancing the attractiveness of arbitrating in the EU. Particularly erroneous and inadequate is the suggested and presumed binding nature of the decision on the validity of an arbitration agreement, without providing for at least a minimal level of uniformity. It is exactly because the 1958 New York Convention regulates only some instances of court ‘intervention’ that it is preferable to have a separate instrument within which all relevant aspects would be dealt with. Such an instrument would serve as a genuine supplement to the 1985 New York Convention. It would be a proper means to overcome the undesirable effects of those provisions that proved outdated and, as such, unsuitable for modern business or that have given rise to difficulties and discrepancies in interpretation by national courts. Such a carefully drafted instrument would truly enhance the attractiveness of arbitrating within the EU. Partial solutions in the form of poorly drafted and vaguely worded amendments are counterproductive as they will only be driving away potential users from arbitrating in Europe. Unfortunately, it does not seem likely that the Commission will follow that path and address all the issues in one EU instrument. Numerous interventions, commentaries on the Green Paper and clear preferences for not dealing with issues concerning the interface between arbitration and litigation within the Regulation have obviously been ignored. Thus, it is unrealistic to expect that any comments and suggestions to that effect will have any relevance in the future. Yet if the Commission wishes to pursue the approach of a ‘(partial) deletion of the arbitration exception’ it is perhaps not too much to expect that the context and the wording of the amendment will be substantially reconsidered and revised. Thereby an approach comparable to Article VI(3) of the European Convention may be a suitable solution. This may be combined with prima facie control over the validity of arbitration agreements by the court seised when no arbitration has yet been initiated. Such an approach would ensure the full effectiveness of arbitration agreements.

 Chr. F. Kroes, Bij nader inzien: de Hoge Raad komt terug van zijn opvatting dat bij de kantoorbetekening ex artikel 63 Rv ook het Haags Betekeningsverdrag moet worden gevolgd, p. 299-302 [Annotation to Hoge Raad 4 februari 2011, nr. 10/04456, LJN: BP0006 (NIPR 2011, 222) en nr. 10/05104, LJN: BP 3105 (NIPR 2011, 223). The English abstract reads:

Until recently, the Supreme Court held that national service at the office address of a party’s counsel in the first instance (‘office service’) was not sufficient if the defendant had his/her domicile in a Member State of an international instrument on service abroad (an EU Regulation or a treaty). In such a case, the plaintiff should also adhere to the requirements for service under that instrument. The Supreme Court has now completely reversed its position. With regard to the Service Regulation II, it decided on 18 December 2009 that, in case the Service Regulation II would otherwise be applicable, office service is sufficient. On 4 February 2011, the Supreme Court handed down two decisions that make clear that the same applies in cases where defendants have their domicile in Member States of the Hague Convention on Service in Civil and Commercial Cases 1965. No doubt, these decisions are pragmatic. However, there are objections. First, it is unclear what effort a party’s counsel must make in order to make sure that the document that has been served actually reaches his client. In most cases, this will not be a problem, but if counsel has lost contact, it certainly will be. Such an inability to reach the client will go unnoticed by the court that will then simply proceed by default. Secondly, problems with recognition and enforcement outside of the Netherlands may result from such an office service.

Ning Zhao, The first codification of choice-of-law rules in the People’s Republic of China: an overview, p. 303-311. The conclusion reads:

Given the continued economic growth and the ever-increasing number of foreign-related civil relations in the PRC, the enactment of the Statute is certainly a timely one. With this Statute, the legislator has succeeded in achieving the goals of codifying substantial parts of choice-of-law rules, and keeping them in line with major developments achieved in international and national codifications and reforms in this field. In spite of the influence of other codifications, the Chinese legislator has made this Statute suitable for Chinese social reality. From the foregoing, it is clear that the Statute gives preference to legal certainty and conflicts justice over flexibility and substantive justice. The Statute incorporates many of the most advanced developments in the field of choice of law, in that it modernizes and systematizes the rules that are currently in force. Parties in dispute and practitioners will certainly benefit from the clear and transparent rules prescribed in the Statute, and those rules will also facilitate the adjudication of international civil disputes by Chinese courts. Thus, as the first codification of choice-of-law rules in China, the Statute opens a new page for Chinese private international law. It is probably too early to draw a conclusion as to the effectiveness of the Statute, as only practice will put the advantages and inconvenience of the Statute into perspective. Nevertheless, the Statute seems to have the potential to succeed as a basic body of law in regulating choice-of-law problems in foreign related civil relations.

The third issue of the Belgian bilingual (French/Dutch) e-journal on private international law Tijdschrift@ipr.be / Revue@dipr.be was just released.

The journal essentially reports European and Belgian cases addressing issues of private international law, but it also offers academic articles. This issue includes a note by Charline Daelman commenting on the recent case of the European Court of Human Rights Negrepontis-Giannisis v. Greece and discussing the Interaction Between Human Rights and Private International Law.

Following the publication of the final Draft Principles for Conflict of Laws in Intellectual Property which we reported here, the European Max-Planck Group on Conflict of Laws in Intellectual Property (CLIP) is now prepared to make their presentation. The conference organised for this purpose by will take place on 3-5 November in Berlin. The program is as follows:

Thursday, November 3
Welcome reception Jürgen Basedow, Hamburg/Josef Drexl, Munich

Friday, November 4
Introduction to the CLIP Project Jürgen Basedow, Hamburg
The principle of territoriality and the rules of the CLIP Principles on jurisdiction Paul Torremans, Nottingham/Rochelle Dreyfuss, New York
The principle of territoriality and the rules of the CLIP Principles on the applicable law Josef Drexl, Munich/Dário Moura Vicente, Lisbon
The approach of the CLIP Principles to ubiquitous infringement Annette Kur, Munich/Rufus Pichler, New York
Party autonomy and contracts under the CLIP Principles Axel Metzger, Hanover/Ivana Kunda, Rijeka
The approach of the CLIP Principles to recognition and enforcement of judgements Pedro de Miguel Asensio, Madrid/Stefania Bariatti, Milan

Saturday, November 5
The impact of the CLIP Principles on courts and arbitration Mireille van Eechoud, Cambridge (Chair)/Joachim Bornkamm, Freiburg/François Dessemontet, Lausanne/Sierd Schaafsma, The Hague/Winfried Tilmann, Düsseldorf
The impact of the CLIP Principles on legislation and international law Alexander Peukert, Frankfurt (Chair)/Spiros Bazinas, UNCITRAL/Friedrich Bulst, DG Competition/Marta Pertegás, Hague Conference/Christian Wichard, WIPO
The CLIP Principles and the parallel projects of the American Law Institute and Waseda/KOPILA Graeme Dinwoodie, Oxford (Chair)/Jane Ginsburg, New York/Toshiyuki Kono, Fukuoka
Farewell address Josef Drexl, Munich

From 26 to 28 October 2011, the Hague Conference on Private International Law held its fourth Asia-Pacific Conference in Manila, Philippines, to discuss the relevance, implementation and practical operation of a number of important Hague Conventions within the Asia Pacific Region.

The Manila Conference focused on the areas of family law and legal co-operation and litigation, with particular emphasis on the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). It also considered private international law aspects of temporary and circular economic migration.

The Conclusions and Recommandations of the conference can be downloaded here.

The latest issue of Arbitraje. Revista de arbitraje comercial y de inversiones (2011, vol. 3), has just been released. I would like to highlight some of its contents:

C. Kröner, “Crossing the Mare Liberum: the Settlement of Disputes in an Interconnected World” (in english)

P. Perales Viscasillas, “La reforma de la Ley de Arbitraje (ley 11/2011, de 20 de mayo)”

M. Ceñedo Hernán, “La intervención judicial en el arbitraje en la Ley 11/2011 y en la Ley Orgánica 5/2011, de reforma de la legislación arbitral”

N. P. Castagno, “International Commercial Arbitration and Punitive Damages” (in English)

V. Andreeva Andreeva, “Resolución extrajudicial de conflictos relacionados con los contratos con consumidores celebrados en los mercados financieros internacionales”

I. Iruretagoiena Agirrezabalga, “El arbitraje de inversión en el marco de los APRI celebrados entre dos Estados miembros de la unión: los APRI intra-UE y el Derecho de la Unión”

A. Fernández López, “Algunos criterios relevantes sobre el arbitraje de Costa Rica tras la Ley nº 8937 de 2011”

C. Jarrosson, “Les principales tendences du nouveau droit français de l’arbitrage international” (in French)

M.E. Ancel, “Le nouveau droit français de l’arbitrage: le meilleur de soi-même” (in French)

Also, the magazine includes legal texts, Spanish and foreign case law (sometimes annotated), comments on selected bibliography, and news of interest to the world of arbitration.

Dorothea van Iterson: “Ouderlijke verantwoordelijkheid en kinderbescherming” (Parental Responsibility and Child Protection)

On 1^st May 2011 the 1996 Hague Child Protection Convention entered into force in the Netherlands. Consequently the Netherlands joined the group of countries where this Convention is in force alongside the Brussels II bis Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003). The Regulation has been operative in the EU (with the exception of Denmark) from 1 March 2005.

A new book, entitled “Ouderlijke verantwoordelijkheid en kinderbescherming” (Parental Responsibility and Child Protection), aims to give guidance on the way the two instruments are to be applied together and in conjunction with other instruments such as the 1980 Hague Child Abduction Convention. It describes similarities and differences between the instruments and identifies areas for uniform interpretation. The themes dealt with are: scope, co-operation, jurisdiction, applicable law, recognition, enforceability and enforcement. The rules of the Convention and the Regulation on each theme are compared. A comparative table summarizes the subject matter discussed in each chapter. The author reviews case law of the EC/EU Court of Justice and the Dutch courts from 2005 onwards, illustrating the operation of the international instruments and the statutory provisions implementing them in the Netherlands. Special attention is given to administrative and judicial co-operation. These aspects have become an intrinsic element of Dutch legal practice.

The volume (260 pages) was written by Dorothea van Iterson. It is part of the series “Praktijkreeks IPR” (chief editors: L.Strikwerda and P.Vlas). It was published on 1^st September 2011 by MAKLU Publishers, www.maklu.nl.     

More information as well as the table of contents can be found on the publisher’s website.

This opinion is contributed by Professor Veerle Van Den Eeckhout, who teaches international private law at the universities of Leiden and Antwerp.

Private International Law, quo vadis

PIL as a perfect conductor for achieving political objectives?

A Tale of Lost Innocence

Before long a new book will be added to the Dutch Civil Code: on 1 January 2012 Book 10 will enter into force (1). Book 10 codifies Dutch private international law (‘PIL’).

PIL lawyers may be sorely tempted to devote all their energy to the presentation and interpretation of the rules of Book 10, because it seems reasonable to assume that the lengthy codification process has also involved a process of reflection on PIL. Even so, the completion of the codification process marks the perfect time to make an appeal to both PIL lawyers and non-PIL lawyers to reflect on PIL once again, albeit from a special angle: if PIL is studied as a discipline that is not isolated from other branches of law but that interacts with these other branches; if it is recognised how PIL is occasionally ‘used’ as a vehicle to achieve policy objectives or may at least make a difference; if it is revealed that PIL may act as a ‘hinge’, and if it is recognised that interaction with PIL may make a difference in various debates in which PIL initially did not seem to be an essential factor, then, the burning question arises how PIL should be ‘used’ in the future and what our attitude should be towards future PIL developments.

And despite its codification, PIL will continue to evolve in the years ahead. If only as a result of the ongoing Europeanization of PIL, PIL rules may change at a fast rate in the next few years.

What is more: the very phenomenon of the Europeanization of PIL is illustrative of the ‘discovery’ of PIL by European institutions as a discipline that ‘matters’ – particularly when it comes to encouraging the exercise of European freedoms, such as the free movement of persons, the freedom of establishment and the free movement of services ? and it is also illustrative of the application of PIL by many policymakers and of the occasional attempts to use PIL as a policy instrument for achieving objectives beyond the scope of PIL itself.

A recent example illustrating the dynamics of the ‘discovery’ of PIL at the Dutch national level is the attempt to base rules of international marriage law on migration targets (2). It turns out that in the view of the Dutch legislator, PIL could have a role to play in the current migration and integration debate.

The British Institute of International and Comparative Law’s Private International Law series (sponsored by Herbert Smith LLP) is moving into its Autumn programme with two events on Wednesdays 2 and 9 November (17:00 to 19:00), to be held at the Institute’s London headquarters (Charles Clore House, Russell Square).

The first, entitled “Punitive Damages – Europe Strikes Back?!” focuses on the reception of US punitive damages awards in European systems, looking at recent French, Spanish and Italian case law. Chaired by Professor Rachael Mulheron (Queen Mary College, University of London), the speakers include my conflictoflaws.net colleague, Professor Marta Requejo Isidro (University of Santiago de Compostela), as well as Dr Maxi Scherer (Wilmer Hale, London and Sciences Po, Paris) and Dr Francesco Quarta (University of Salento).

The second, entitled “Insolvency: Current Questions in Cross-Border Scenarios” aims to do what it says on the tin, highlighting topical issues such as the inter-relation of cross-border assignment and insolvency laws, the relationship between arbitration and insolvency proceedings, recognition and enforcement of foreign insolvency judgments and the (many) shortcomings of the Insolvency Regulation. Chaired by Sir Roy Goode CBE QC (needing no introduction), the speakers include Professor Federico Mucciarelli (University of Modena and Reggio Emilia), Dorothy Livingston (Herbert Smith LL), Dr Ann-Catherine Hahn (Baker & McKenzie, Zurich) and Look Chan Ho (Freshfields Bruckhaus Deringer LLP, London).

For further details, and booking information, just click on the links above.

Do you own an iPhone or an iPad? I don’t, and so was not aware of the fact that, if I had, I could have bought an App(lication) called “Jew or not Jew?” for less than 2 Euros.

Well, could have only, because after some French Jewish and anti-racism organizations complained in September that the App violated French law, Apple announced that it would stop making it available in France. One month later, it announced its willingness to extend its decision to the entire European Union.

There have been reports, however, that Apple would have made the App available again, in France, a few weeks later.

The New iChoice of Law Rule

Deciding to withdraw the App from the entire EU because French law might have been violated would certainly be a novel approach to choice of law.

To the question ‘which law governs whether an online Application can be sold anywhere in Europe?’, Apple seems to answer: French law. Or have Apple’s lawyers identified an issue with European law?

An iRemedy as well?

Although most French organizations were satisfied with the decision of Apple to stop making available the App, Le Monde reports that one, the Ligue internationale contre le racisme et l’antisémitisme (Licra), has decided that it was not enough and that Apple should do more: destroy from afar all applications sold before September. Licra claims that Steve Jobs (that’s right, Steve Jobs himself. He was such a visionary that he was also able to predict how the law of remedies would evolve) made statements in 2008 demonstrating that this would be perfectly possible from a technical point of view.

The case was heard today by a Paris court. Le Monde reports that Apple’s lawyers relied on French law and argued, inter alia, that such a remedy would violate the property rights of buyers of the App.

The court will deliver its judgment on November 17.

And now the World?

But that is not all! Four French organizations have filed a new suit in France against Apple Inc. and are seeking an order that Apple make the App unavailable in the rest of the world.

Hearing on November 24th.

Stay (i)tuned.

The Editors of the Journal of International Dispute Settlement (JIDS) and Oxford University Press (OUP) have announced the establishment of The James Crawford Prize of the Journal of International Dispute Settlement. This annual prize will award £500 of OUP books and a subscription to JIDS to the author of the best paper received by the Journal. The winning paper will also be published in JIDS. For the 2012 Prize, submissions are required by 28 February 2012 to be considered for the award.

The selection will be made by a Prize Committee composed of the Editorial Director, the Associate Editors, and possibly further members of the Editorial Board of JIDS depending on the narrower fields of the papers submitted for the prize. The Committee may choose not to award the prize and hold it over for a subsequent year if, in their view, the papers submitted do not reach the standards required.

For the first JIDS Prize the award will be published and announced in the second issue of volume 3 of JIDS, in July 2012.

Submissions should be sent to thomas.schultz@graduateinstitute.ch