Here.

A session of the Committee of Legal Affairs on the Brussels I Reform took place today and lasted a bit more than an hour.

Speakers included A. Layton, A. Dickinson, I. Pretelli, F. Horn and A Nuyts.

The video of the meeting is available here.

UPDATE: The original workshop should be rescheduled, and the papers made available on the site of the Parliament.

• Bennett and Kopke “Characterization and ‘gap’ in the conflict of laws” 2008 South African Law Journal 62
• Eiselen “Goodbye arrest ad fundandam. Hello forum non conveniens?” 2008 TSAR 794
• Harder “Statutes of limitation between classification and renvoi: Australian and South African approaches compared” 2011 ICLQ 659
• Neels “Falconbridge in Africa” 2008 Journal of Private International Law 167
• Neels “Consumer protection and private international law” 2010 Obiter 122
• Neels “South Africa” in Fernandez Arroyo (ed) Consumer Protection in International Private Relationships (2010) CEDEP 415
• Neels “External public policy, the incidental question properly so-called and the recognition of foreign divorce orders” in Boele-Woelki, Einhorn, Girsberger and Symeonides (eds) Convergence and Divergence in Private International Law. Liber amicorum Kurt Siehr (2010) Eleven International Publishers / Schulthess 331 (reprint in 2010 TSAR 671)
• Neels and Fredericks “The music performance contract in European and Southern African private international law” 2008 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg / Journal of Contemporary Roman-Dutch Law 351 and 529
• Neels and Fredericks “Tacit choice of law in the Hague Principles on Choice of Law in International Contracts” 2011 De Jure (forthcoming)
• Neels and Wethmar-Lemmer “Constitutional values and the proprietary consequences of marriage in private international law” 2008 TSAR 587
• Oppong “Roman-Dutch law meets the common law on jurisdiction in international matters” 2008 Journal of Private International Law 311
• Oppong “Enforcing judgments of the SADC Tribunal in the domestic courts of member states” 2010 Monitoring Regional Integration in Southern Africa Yearbook 115
• Oppong “Inter-institutional relations: public-private international law dimensions” chapter 8 in Oppong: Legal Aspects of Economic Integration in Africa (2011) Cambridge University Press
• Oppong “Interstate relations, economic transactions and private international law” chapter 9 in Oppong: Legal Aspects of Economic Integration in Africa (2011) Cambridge University Press
• Roodt “Recognition of Muslim marriages in South Africa: a conflicts perspective” 2008 The International Journal of Diversity in Organisations, Communications and Nations 137
• Roodt “Party autonomy in international law of succession” 2009 TSAR 241
• Roodt “Conflicts of procedure between courts and arbitral tribunals in Africa: an argument for harmonization” 2010 Tulane European and Civil Law Forum 65
• Roodt “Autonomy and due process in arbitration: recalibrating the balance” 2011 European Journal of Law Reform (forthcoming)
• Roodt “Conflicts of procedure between courts and arbitral tribunals with particular reference to the right of access to court” 2011 African Journal of Comparative and International Law 236
• Schulze “Conflict of laws” 2008 Annual Survey of South African Law 167
• Schulze “International jurisdiction in claims sounding in money: is Richman v Ben-Tovim the last word?” 2008 South African Mercantile Law Journal 61
• Schulze “Conflict of laws” 2009 Annual Survey of South African Law 134
• Schulze “Arbitration agreements and jurisdiction in terms of the Judgment Regulation” 2010 The Comparative and International Law Journal of Southern Africa 68
• Schulze “Conflict of laws” 2010 Annual Survey of South African Law (forthcoming)
• Sibanda “Jurisdictional arrest of a foreign peregrines now unconstitutional in South Africa” 2008 Journal of Private International Law 167
• Van Niekerk “Choice of English law and practice in a ‘South African short-term policy’ of marine insurance: jurisdiction and applicable law” 2010 TSAR 590
• Van Niekerk “Choice of foreign law in a South African marine insurance policy: an unjustified limitation of party autonomy?” 2011 TSAR 159
• Wethmar-Lemmer “When could a South African court be expected to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG)?” 2008 De Jure 419
• Wethmar-Lemmer “The impact of article 95 reservation on the sphere of application of the United Nations Convention on Contracts for the International Sale of Goods (CISG)” 2010 De Jure 362
• Wethmar-Lemmer: The Vienna Sales Convention and Private International Law (2010) LLD thesis University of Johannesburg
• Wethmar-Lemmer “Party autonomy and international sales contracts” 2011 TSAR 431

TSAR = Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law

The 14th edition of the Legislación de Derecho Internacional Privado has been released. Prepared by Professors Santiago Álvarez González, Carlos Esplugues Mota, Pilar Rodriguez Mateos and Sixto Sánchez Lorenzo, it a useful tool for students, practitioners, and foreign scholars willing to know what PIL laws, either autonomous, conventional or European, are applicable in Spain (and, for the last two, what their Spanish wording is: not always the same as in other languages). The Legislación de Derecho Internacional Privado includes most of the rules in force in Spanish PIL: ad. ex., those of domestic source, provisions of the European Union and the EFTA, Hague Conference, Council of Europe Conventions, International Commission on Civil Status Conventions and United Nations Conventions, as well as a list of 25 bilateral agreements on cooperation. New to this edition is the inclusion of the Hague Convention of October 19, 1996; Regulation (EU) no. 1259/2010 (Rome III); and the important reform of the Spanish Arbitration Act. To have a look at the complete summary click here.

On Tuesday, 20 September 2011, the EP Committee on Legal Affairs (JURI) will host in Brussels a workshop on the review of the Brussels I regulation. The round table, chaired by Tadeusz Zwiefka (EP rapporteur on the Brussels I proposal), will be followed by the presentation of the study “Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law”, prepared by Prof. Burkhard Hess and Prof. Thomas Pfeiffer (Ruprecht-Karls-Universität Heidelberg) on behalf of the Commission. Here’s the programme:

[UPDATE: the live video streaming of the workshop will be broadcasted on this page. The recorded session will be later available in the EP’s Multimedia Library]

9:00 – 9:10 Welcome and opening remarks by Tadeusz Zwiefka, Rapporteur.

9:10 – 10:20 Analysis of the main elements of reform of Brussels I Regulation – Round Table:

• Professor Burkhard Hess, Institut für ausländisches und internationales Privat- und Wirtschaftsrecht der Ruprecht-Karls-Universität
• Heidelberg;
• Professor Marie-Laure Niboyet, Université Paris X-Nanterre;
• Professor Horatia Muir-Watt, Sciences-Po Law School, Paris;
• Professor Ilaria Pretelli, Università degli Studi di Urbino “Carlo Bo”;
• Alexander Layton QC of the Bar of England and Wales;
• Professor Andrew Dickinson, University of Sydney, solicitor advocate (England and Wales), consultant to Clifford Chance LLP;
• Florian Horn, partner and attorney at law, Brauneis Klauser Prändl law firm.

10:20 – 11:00 Questions and answers.

11:00 – 11:10 Presentation of the Study on the “Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law” by Professor Burkhard Hess and Professor Thomas Pfeiffer, Institut für ausländisches und internationales Privat- und Wirtschaftsrecht der Ruprecht-Karls-Universität Heidelberg.

11:10 – 11:20 Questions and answers.

11:20 – 11:30 Closing remarks by the Rapporteur.

(Many thanks to Prof. Koji Takahashi for providing the links to the video sessions)

The fifth Newsletter of the Hague Academy of International Law can be found here.

Karen Knop (University of Toronto), Ralf Michaels (Duke) and Annelise Riles (Cornell) have posted From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style on SSRN. The abstract reads:

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” This impasse is detrimental both to women’s equality and to concerns for cultural autonomy.

We propose shifting gears. Our approach draws on what, at first glance, would seem to be an unpromising legal paradigm for feminism – the highly technical field of conflict of laws. Using the non-intuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, we demonstrate the contribution that conflicts can make. Whereas Western feminists are often criticized for dwelling on “exotic” cultural practices to the neglect of other important issues affecting the lives of women in those communities or states, our choice of hypothetical not only joins the correctives, but also shows how economic issues, in fact, take us back to the same impasse. Even mundane issues of corporate law prove to be dazzlingly indeterminate and complex in their feminist and cultural dimensions.

What makes conflict of laws a better way to recognize and do justice to the different dimensions of our hypothetical, surprisingly, is viewing conflicts as technique. More generally, conflicts can offer a new approach to the feminism/culture debate – if we treat its technicalities not as mere means to an end but as an intellectual style. Trading the big picture typical of public law for the specificity and constraints of technical form provides a promising style of capturing, revealing and ultimately taking a stand on the complexities confronting feminists as multiculturalism is challenged here and abroad.

The paper is forthcoming is the Stanford Law Review.

The  12th volume of the Yearbook of Private International Law (2010) will shortly be released.

It contains the following contributions:

Doctrine

• Katharina BOELE-WOELKI, For Better or for Worse: The Europeanization of International Divorce Law
• CHEN Weizuo, Chinese Private International Law Statute of 28 October 2010
• Talia EINHORN,  The Recognition and Enforcement of Foreign Judgments on International Commercial Arbitral Awards
• Sixto SANCHEZ LORENZO, Choice of Law and Overriding Mandatory Rules in International Contracts after Rome I

Recent Developments in U.S. Conflicts of Laws

• Patrick J. BORCHERS, The Emergence of Quasi Rules in U.S. Conflicts Law
• Ronald A. BRAND, U.S. Implementation vel non of the 2005 Hague Convention on Choice of Court Agreements
• Linda J. SILBERMAN, Morrison v. National Australia Bank: Implications for Global Securities Class Actions
• Robert G. SPECTOR, A Guide to United States Case Law under the Hague Convention on the Civil Aspects of International Child Abduction
• David P. STEWART, Recognition and Enforcement of Foreign Judgments in the United States
• Symeon C. SYMEONIDES, Codifying Choice of Law for Tort Conflicts: The Oregon Experience in Comparative Perspective

The Revision of the Brussels I Regulation

• Andrew DICKINSON, Surveying the Proposed Brussels I bis Regulation: Solid Foundations but Renovation Needed
• Adrian BRIGGS, What Should Be Done about Jurisdiction Agreements?
• Alegría BORRÁS, Application of the Brussels I Regulation to External Situations – From Studies Carried Out by the European Group for Private International Law (EGPIL/GEDIP) to the Proposal for the Revision of the Regulation
• Rafael ARENAS GARCÍA, Abolition of Exequatur: Problems and Solutions – Mutual Recognition, Mutual Trust and Recognition of Foreign Judgments: Too Many Words in the Sea
• Sara SÁNCHEZ FERNÁNDEZ, Choice-of-Court Agreements: Breach and Damages Within the Brussels I Regime
• Diana SANCHO VILLA, Jurisdiction over Jurisdiction and Choice of Court Agreements: Views on the Hague Convention of 2005 and Implications for the European Regime

News from the Hague

• Hans VAN LOON, The Hague Conference on Private International Law: Work in Progress (2008-2010)

National Reports

• Rodrigo RODRIGUEZ / Alexander R. MARKUS, The Implementation of the Revised Lugano Convention in Swiss Procedural Law
• Mohamed S. ABDEL WAHAB, The Law Applicable to Technology Transfer Contracts and Egyptian Conflict of Laws: A Triumph of Nationalism over Internationalism?
• Torstein FRANTZEN, Party Autonomy in Norwegian International Matrimonial Property Law and Succession Law
• Tiong Min YEO, Common Law Innovations in Proving Foreign Law
• Seyed N. EBRAHIMI, An Overview of the Private International Law of Iran: Theory and Practice
• Adi CHEN, Conflict of Laws, Conflict of Mores and External Public Policy in Israel: Registration and Recognition of Foreign Divorce Decrees – A Modern Critique

Court Decisions

• Michael BOGDAN, Website Accessibility as a Basis for Jurisdiction under Art. 15(1)(C) of the Brussels I Regulation – Case Note on the ECJ Judgments Pammer and Alpenhof 
• Eva LEIN, Modern Art – The ECJ’s Latest Sketches of Art. 5 No. 1 lit. b Brussels I Regulation
• Zeno CRESPI REGHIZZI, Reservation of Title in Insolvency Proceedings: Some Remarks in Light of the German Graphics
  Judgment of the ECJ
• Gilles CUNIBERTI, Resisting American Class Actions at Home: Vivendi’s Crusade against U.S. Imperialism
• Patricia OREJUDO PRIETO DE LOS MOZOS, Recognition in Spain of Parentage Created by Surrogate Motherhood

Forum

• Carmen AZCÁRRAGA MONZONÍS, An Old Issue from a Current Perspective: American and European Private International Law

More information can be found here.

The International Chamber of Commerce (ICC) has launched a revised version of its Rules of arbitration. The new Rules will come into force on 1 January 2012.

See the announcement of the ICC here.

Recently, the September/October  issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

Here is the contents:

• Marc-Philippe Weller: “Anknüpfungsprinzipien im Europäischen Kollisionsrecht: Abschied von der „klassischen“ IPR-Dogmatik?” – the English abstract reads as follows:

 Friedrich Carl v. Savigny has influenced modern private international law. His method is known as the “classic” private international law doctrine. Its principles are the international harmony of decisions and the neutrality of private international law, embodied in the principle of the most significant relationship.

However, in European private international law a slight paradigm change concerning the structure of the conflict of law rules can be detected from a classic point of view. The conflict of law rules of the Rome I and Rome II Regulation are prevalently oriented according to the material principles of the European Union such as the promotion of the internal market, the increase of legal security and the protection of the weaker party (e.g. consumer protection).

Nevertheless, in the event of a future codification of private international law at European level, the classic connecting principles of private international law deserve greater attention in the law making process. The Lisbon Treaty would allow such a “renaissance” of the classic private international law doctrine.

•  Dieter Martiny: “Die Kommissionsvorschläge für das internationale Ehegüterrecht sowie für das internationale Güterrecht eingetragener Partnerschaften” – the English abstract reads as follows:

On 16 March 2011 the European Commission proposed two separate Regulations, one for married couples on matrimonial property regimes and another on the property consequences of registered partnerships. A Communication of the Commission explains the approach of the proposals. While it is in principle to be welcomed that the Proposals are gender neutral and neutral regarding sexual orientation, the relationship between the intended overarching European rules with the (existent) divergent national rules for different types of marriages and partnerships raises some doubts. It is regrettable that, whereas spouses may themselves expressly choose the applicable law to a certain extent, the assets of registered partnerships are, as a rule, subject to the law of the country where the partnership was registered. In the absence of a choice of law by the spouses, similar to the Rome III Regulation – but following the immutability doctrine – the law of their common habitual residence applies in the first instance. The scope of the Proposals as to “matrimonial property” is not totally clear, nor is the role of overriding mandatory rules. Rules on jurisdiction and recognition are broadly in line with the Brussels II bis Regulation and the Succession Proposal. Many details of the recent Proposals need more clarification. However, despite a number of flaws the Proposals seem basically to be acceptable – at least for the civil law Member States.

•  Andreas Engert/Gunnar Groh: “Internationaler Kapitalanlegerschutz vor dem Bundesgerichtshof” – the English abstract reads as follows:

 In 2010, the German Federal Court handed down a number of judgments on the liability of investment service providers in an international setting. The Court faced two specific fact patterns: On the one hand, broker-dealers from the U.S. and Britain participated in a fraudulent investment scheme operated by a German asset manager through investment accounts located abroad. The question arose whether German courts had jurisdiction over the foreign defendants for aiding and abetting, and if so, which tort law governed the case. On the other hand, an investment fund from Turkey and a Swiss asset manager offered their services to investors in Germany without being licensed by the German financial services supervisor.

As regards the jurisdiction issue vis-à-vis defendants from the U.S. and Turkey, the Court concluded that foreign aiders and abettors to a tort committed in Germany can be sued in Germany. The tortfeasor’s acts were imputed to them under § 32 Zivilprozessordnung (German Code of Civil Procedure). In relation to European defendants, the Federal Court claimed jurisdiction under art. 5 no. 3 Brussels I Regulation/Lugano Convention based on the place where the damage occurred. Because investors were almost certain to lose money on the

fraudulent scheme, the damage occurred in Germany when investors transferred their funds to a foreign account. In one case, the Court relied on its jurisdiction over consumer contracts for adjudicating a torts claim, which allowed the Court to dismiss a jurisdiction clause.

With regard to the conflicts rules on tort law, the cases were still governed by German conflicts law leading to similar issues. As a result, investors were able to rely on German tort law. Under the new Rome II Regulation, future tort claims may well qualify as culpa in contrahendo. The applicable law then depends on the law applicable to the contract itself. In this case, the special conflict rule for consumer contracts (Art. 6 Rome I Regulation) ensures that retail investors can invoke their home country’s tort law.

•  Jürgen Samtleben: “Schiedsgerichtsbarkeit und Finanztermingeschäfte – Der Schutz der Anleger vor der Schiedsgerichtsbarkeit durch § 37h WpHG” – the English abstract reads as follows:

 The present article discusses the disputed provision of § 37h of the German Securities Trading Act (WpHG), according to which non-merchants are not able to enter into a valid advance arbitration agreement as regards financial services transactions. The decision of the Federal Court of Justice (BGH) at issue addressed a damages claim brought against a US broker who had, through the use of independent German financial intermediaries, secured clients for the purchase of financially risky futures. As in other cases, the BGH found the business practice of the financial intermediaries to be contrary to public policy and concluded that the broker is subject to liability for his participation in an unlawful commercial practice. The central issue, however, was the defendant’s contention that the court was bound to refer the matter to arbitration in light of an arbitration clause included in the original account agreement. Although signed only by the client, the clause arguably comported with US law, notwithstanding its failure to meet the formal requirements of Art. II of the New York Convention. As it was not clear whether the claimant could be labeled a merchant, the BGH could not make a final determination on the applicability of § 37h WpHG. Equally left open was the question whether the claimant had engaged in the financial activities in question for private purposes and thus as a consumer; in such a case the account agreement would fail to satisfy the formal requirements of § 1031(5) of the German Code of Civil Procedure (ZPO). The article makes clear that the formal requirements of § 1031(5) ZPO can be overridden by a written arbitration agreement that otherwise satisfies the New York Convention. In contrast, § 37h WpHG constitutes a matter of (missing) subjective arbitrability which, according to the Convention, is to be determined under national law. Whereas § 37h WpHG in its current version only protects non-merchants, this limitation is overly narrow and should be abandoned so that all investors acting in a private capacity are protected from the application of an arbitration clause.

•  Astrid Stadler: “Prozesskostensicherheit bei Widerklage und Vermögenslosigkeit” – the English abstract reads as follows:

 The key issue in the proceedings before the Court of Appeal in Munich was the question whether an insolvent US corporation – with its center of main interest being located in Great Britain – was exempt from its obligation to provide security for legal expenses of a counterclaim after the principal cause of action had been dismissed. The author agrees with the court’s judgment, stating that the counterclaimant legally was exempt but disagrees with the reasons given by the court. In her opinion, an exemption would have been possible according to Sec. 110 para. 1 German Code of Civil Procedure, which imposes the obligation to provide security only upon claimants domiciled outside the EU. With the (counter-)claimants insolvency estate being located in Great Britain, the companies statutory head office in the US (Delaware) was irrelevant. The article furthermore raises the question whether an exemption to the obligation of providing security for legal expenses should be granted whenever the foreign (counter-)claimant is penniless. The article objects to such a rule considering the ratio legis of Sec. 110 German Code of Civil Procedure, which simply tries to compensate the difficulties being linked to an execution outside the EU or the EEA. The defendants risk of being sued by an insolvent plaintiff not being able to reimburse the defendant’s legal costs in case of a dismissal of his action exists as well with respect to plaintiffs domiciled in the forum state. Thus a general rule applicable to all insolvent plaintiffs would be necessary, which however runs contrary to a tendency in European countries of generally abolishing the obligation of foreign plaintiffs to provide security for legal expenses in order to make their court more attractive.

•  Thomas Rauscher: “Ehegüterrechtlicher Vertrag und Verbraucherausnahme? – Zum Anwendungsbereich der EuVTVO” – the English abstract reads as follows:

The contribution discusses several decisions rendered by the Berlin Court of Appeal (Kammergericht) concerning the qualification of a right in property as arising out of a matrimonial relationship in the sense of Art 2 (a) of the EC-Enforcement-Order-Regulation (Regulation (EC) No 805/2004) as well as the application of the EC-Enforcement-Order-Regulation towards consumer cases. The meaning of matrimonial property rights under the EC-Enforcement-Order-Regulation should be interpreted with regard to the ECJ’s DeCavel-decisions given under the Brussels Convention. The primary claim will be decisive for the interpretation of this exemption from the Regulation’s scope of application; secondary claims are exempted from the scope of application as well. The protection of consumers under Art 6 (1)(d) EC-Enforcement-Order-Regulation should not only apply in B2C-cases as under Art 15 Brussels I-Regulation but also in C2C-cases; the consumer being the defendant needs protection against certification of a title as European Enforcement Order without regard to the plaintiff’s qualification as a consumer or professional. Finally it is questionable that the court did not ask the ECJ to render a preliminary decision concerning those remarkable questions.

•  Martin Illmer: “Englische anti-suit injunctions in Drittstaatensachverhalten: zum kombinierten Effekt der Entscheidungen des EuGH in Owusu, Turner und West Tankers” – the English abstract reads as follows:

Due to the territorial limits of the ECJ’s judgments in Turner and West Tankers, English courts are still granting anti-suit injunctions in relation to non-EU Member States. However, even this practice may be contrary to EU law due to the combined effect of the ECJ’s judgments in Turner, West Tankers and Owusu. This line of argument which was lurking in the dark for some time now came only recently before the English High Court. Based on the assumption that forum non conveniens (which was the critical issue in Owusu) and anti-suit injunctions (which were the critical issue in Turner and West Tankers) are two related issues with overlapping preconditions, anti-suit injunctions might have been buried altogether. The High Court, however, rejected such an assumption without further discussion of the issue and granted the anti-suit injunction.

•  Ghada Qaisi Audi: DIFC Courts-ratified Arbitral Award Approved for Execution by Dubai Courts; First DIFC-LCIA Award pursuant to Dubai Courts-DIFC Courts Protocol of Enforcement

The enforcement of arbitral awards made by the Dubai International Financial Centre-London Court of International Arbitration (DIFC-LCIA) can only be achieved by a ratification Order of the Dubai International Financial Centre Courts (DIFC Courts). The first DIFC Courts-ratified arbitral award was recently approved for execution by the Dubai Courts under the 2009 Protocol of Enforcement that sets out the procedures for mutual enforcement of court judgments, orders and arbitral awards without a review on the merits, thus providing further uniformity and certainty in this arena.

• Christel Mindach: Russland: Novellierter Arbitrageprozesskodex führt Sammelklagen ein

• Carl Friedrich Nordmeier: Beschleunigung durch Vertrauen: Vereinfachung der grenzüberschreitenden Forderungsbeitreibung im Europäischen Rechtsraum – Tagung am 23./24.9.2010 in Maribor

• Mathäus Mogendorf.: 16. Würzburger Europarechtstage am 29./30.10.2010