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

Today, the United States Court of Appeals for the Ninth Circuit issued a mammoth en banc opinion in the case of Sarei v. Rio Tinto.  All 166 pages of the court’s splintered analysis deserves careful consideration.  Here is a short review of the court’s conclusions.

First, the Ninth Circuit holds that the Alien Tort Statute may be applied extraterritorially notwithstanding recent Supreme Court caselaw requiring a clear statement of extratteritorial intent.  Slip op. at 19337-19339.

Second, the Ninth Circuit holds that there can be corporate liability under the ATS.  Slip op. at 19341.

Third, the Ninth Circuit holds that there may be aiding and abetting liability under the ATS.  Slip op. at 19342.

Fourth, the Ninth Circuit holds that there is arising under jurisdiction in ATS cases and that courts may develop federal common law in such cases.  Slip op. at 19343; id. 19347.

Fifth, the Ninth Circuit holds that prudential exhaustion may be required in ATS cases and that the district court did not abuse its dicretion in refusing to dismiss the case for lack of exhaustion.  Slip op. at 19353.

Sixth, the Ninth Circuit holds on the facts of the case that the political question doctrine, international comity, and the act of state doctrine do not require dismissal.  Slip op. at 19358.

Seventh, the Ninth Circuit holds that a claim for genocide and war crimes may be pled under the ATS against a corporation when there is purposeful conduct alleged.  Slip op. at 19375.  The court reserves judgment on whether a lesser standard is applicable given the purposeful allegations in this case.  Id.

Eighth, the Ninth Circuit holds that a claim of racial discrimination is not cognizable under the ATS, although a claim of apartheid is cognizable by assumption.  Slip op. at 19380.

There are various concurrences and dissents that take up some of these issues.  In particular, there is a debate between the judges as to whether a lesser standard than purpose might be pled under the ATS.

These holdings complicate the ATS landscape substantially given other recent appellate decisions.  The Supreme Court’s cert. grant in Kiobel (discussed earlier on this blog) just became much more important to resolving many of these question.  It will be especially interesting to see what the Government’s position through the Solicitor General’s office will be in Kiobel given the many citations to Harold Koh’s writings on corporate liability relied on by the en banc panel.