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Out Now: Scraback on the Principle of Concentration of Conflicts in the Brussels Ia Regulation
Bianca Scraback has recently published an innovative book on international jurisdiction in contract and tort under the Brussels Ia Regulation, in which she develops a comprehensive solution for cases in which Article 7(1) and 7(2) vest special jurisdiction in the courts of more than one Member State.
The different solutions adopted by the CJEU to mitigate the problems resulting from a multiplicity of places of ‘contract performance’ or ‘harmful events’ are well-known. They range from the infamous ‘mosaic approach’ developed in Case C-68/93 Shevill (most recently confirmed in Case C-251/20 Gtflix tv) to a variety of centre-of-gravity approaches (see, eg, Cases C-386/05 Color Drack, C-204/08 Rehder, C-19/09 Wood Floor, and C-352/13 CDC Hydrogen Peroxide) to the unavailability of special jurisdiction (Case C-256/00 Besix). Still, the Court regularly accepts the coexistence of multiple fora with special jurisdiction.
Now, Scraback argues that this coexistence often violates the ‘principle of concentration of conflicts’, which she derives from Articles 5(2), 8, 21(1), 24, and 29–34 Brussels Ia, as well as the principles of legal certainty and proximity. After a detailed review of the existing case law, she comes to the conclusion that each of the approaches that have so far been applied by the CJEU also conflicts with core principles of the Regulation and fails to provide a unitary solution for both contract and tort cases.
Against this backdrop, Scraback proposes an approach of ‘limited choices’ for the claimant: as a starting point, based on the wording of the Regulation, any claimant must be free to select any forum that fulfils the requirements of Articles 7(1) or 7(2), without any limitation of its jurisdiction (thus rejecting the mosaic approach); yet, to protect the legitimate interests of the defendant, certain fora must be excluded based on the remote character of their connection to the dispute. More specifically, Scraback proposes to exclude all fora that can be considered subsidiary both in comparison to the overall tort or contractual obligation and in comparison to other available fora – which appears to require some kind of reverse centre-of-gravity analysis not dissimilar from a forum non conveniens test. While providing a serious alternative to the CJEU’s notoriously unconvincing approach to online torts, it can certainly be debated if this approach provides a better alternative to the answers found by the CJEU in all case. Still, Scraback’s ‘principle of concentration of conflicts’ offers an interesting new vantage point and useful frame of reference to think about a wide range of seemingly unrelated scenarios.
Call for Papers: SLS Conflict of Laws Section, King’s College, London, 2022
The convenors of the SLS Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, would be delighted to receive abstract submissions from conflictoflaws.net readers, emphasising that there is an option to present virtually on the 8th September, with the 9th September reserved for in-person papers at Kings College, London. They have kindly shared the following call for papers.
SLS Conflict of Laws Section: Call for Papers/Panels for 2022 SLS Annual Conference at King’s College London – The links and connections to legal development.
This is a call for papers and panels for the conflict of laws section of the 2022 Society of Legal Scholars Annual Conference to be held at King’s College, from 6th – 9th September. The conflict of laws section will meet in the second half of the conference on 8th – 9th September and will have four sessions, each lasting 90 minutes.
The Society of Legal Scholars’ 2022 annual conference explores how links and connections both within one legal system and across different legal systems work to influence the development of law. Legal rules, ideas and concepts develop as a result of diverse influences, both internal and external to any legal system. Existing studies have identified the importance of legal diffusion and of legal transplants between legal systems as agents of legal change and development. Similarly, within one legal system the development of a particular subject matter is often undertaken as a result of borrowings or copying from another subject matter within the same legal system. The importance of links and connections in legal development can be demonstrated in many different ways, including the examination of particular links between people, within institutional and political networks or with bodies in other legal systems. Proposals are invited for papers which consider, broadly or specifically, how links and connections have worked to influence legal development in any area of law.
The 2022 conference will be held in person at King’s College London on Tuesday 6th – Friday 9th September. A new online attendance option will allow delegates the opportunity to attend and to present papers virtually in the sessions held on the 7th and 8th of September, so, for the conflict of laws section, the 8th of September. When submitting an abstract you must indicate whether you intend to present your paper in person or virtually in the event your proposal is accepted. It will not be possible for presenters to deliver their paper online on the days which are listed as in person only since the facilities will be unavailable. The organisers anticipate that there may be somewhat greater opportunities to present papers in person. Papers which have been accepted on the basis that they are to be delivered in person cannot later be delivered online.
Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme. There will not be a separate doctoral stream at the 2022 conference.
If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 25th March 2022. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/3743/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.
Decisions will be communicated by the end of April.
We welcome proposals for papers and panels on any issue relating to the conflict of laws. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.
Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts. Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.
As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, speakers should not present twice at the conference at the expense of another credible paper. With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.
Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel. The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies. To be eligible:
- speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
- papers must not exceed 12,000 words including footnotes (as counted in Word);
- papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
- papers must not have been published previously or have been accepted or be under consideration for publication; and
- papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:
- speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
- papers must not exceed 12,000 words including footnotes (as counted in Word);
- papers must be uploaded to the paperbank by 11:59pm UK time on Monday 29th August;
- papers must not have been published previously or have been accepted or be under consideration for publication; and
- papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
- Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
- The judges may announce a shortlist at their discretion with the winner to be announced by the first week in November.
We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 17th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.
With best wishes,
Dr Lauren Clayton-Helm
Dr Bobby Lindsay
Rivista di diritto internazionale privato e processuale (RDIPP) No 4/2021: Abstracts
The fourth issue of 2021 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:
Antonietta Di Blase, (formerly) Professor at the University “Roma Tre”, Genitorialità della coppia omosessuale e riconoscimento dello status filiationis nell’ordinamento italiano (Same-Sex Couples and Recognition of Parentage in the Italian Legal System) [in Italian]
This paper addresses the recognition of the status of the child when a same-sex couple accesses techniques of assisted reproduction abroad. According to recent European and Italian Constitutional case law, a form of legal recognition in favor of both partners is due when at least one of them is genetically linked to the child, on account of the duty to grant the child’s identity within a family. The need and the legal form of recognition has to be assessed in the light of the interests of the child, which should prevail over national rules limiting the use of medically assisted reproduction.
Luigi Fumagalli, Professor at the University of Milan, Problemi vecchi e nuovi nella cooperazione per l’assunzione delle prove all’estero in materia civile: la rifusione della disciplina nell’Unione europea (Old and New Problems in the Cooperation for the Taking of Evidence Abroad in Civil Matters: The Recasting of the EU Regime) [in Italian]
The analysis of Regulation (EU) 2020/1783 of 25 November 2020 provides an opportunity to review the overall regulatory framework of cooperation in the taking of evidence applicable in the relations between the Member States of the European Union, to underline the elements of novelty or to detect the critical issues that still exist. It shows that the mechanisms envisaged appear to be suitable for achieving the objectives which the uniform framework sets itself: they oblige the authorities of the Member States to cooperate, almost without exception; the instruments by which this is achieved are shown to be capable of allowing, in reasonably short terms and without excessive formalism, the taking, in a manner which is absolutely tolerable for the Member State in which it is carried out, of evidence that can be used in the proceedings for which it is required. The main novelty profile consists in the wide space left to the use of communication technologies for the implementation of judicial assistance mechanisms: they mark the distance with respect to the oldest communication tools and touch each “segment” of the overall activity through which evidence is taken in a State other than that of the trial. However, the framework defined by Regulation 2020/1783 continues to suffer from certain limitations. In the first place, one cannot fail to highlight a series of formal (relating to the Italian version of the text) or conceptual inaccuracies. Alongside this, it should be noted the strong constraints that derive, for the implementation of the assistance procedures brought by the Regulation, from domestic procedural law, which the European legislation has not modified (nor has it intended to modify). Within these limits, the rules laid down appear, however, to take into account the complexity of the procedural mechanisms involved in the implementation of international judicial assistance procedures, and mark a step forward in the integration between the systems, laying the foundations for further developments.
Alberto Malatesta, Professor at the University “Cattaneo LIUC” in Castellanza, Circolazione delle sentenze tra Unione europea e Regno Unito: a favore di una cooperazione in seno alla Conferenza dell’Aja (Circulation of Judgments between the European Union and the United Kingdom: In Support of a Cooperation in the Framework of the Hague Conference) [in Italian]
This essay outlines the various options for a future cooperation between the EU and the UK in the field of recognition and enforcement of judgments in civil and commercial matters. After examining some alternatives, it focuses especially on the 2007 Lugano Convention, which appears to be a good tool for this purpose. However, pursuant to Art. 72(3) of the Convention itself, the EU has recently objected to the UK’s application of accession. The Author explains the reasons why the EU’s position is appropriate from the point of view of the Member States’ interests and upholds the Hague Conference of Private International Law as the best venue where cooperation between the EU and the UK can be strengthened.
The following comments are also featured:
Silvia Marino, Associate Professor at the University of Insubria, La climate change litigation nella prospettiva del diritto internazionale privato e processuale (Climate Change Litigation from the Perspective of Private International and Procedural Law) [in Italian]
The present article tackles the classic private international law issues in the field of climate change litigation. The introduction offers a definition of climate change litigation according to the current case-law. The article then proceeds to investigate international law commitments on climate change and environmental protection, noting that no specific international conventions exist on the subject-matter. Therefore, the EU system within the civil judicial cooperation appears relevant. Against this background, Regulations EU No 1215/2012 and No 864/2007 are examined in the light of the climate change litigation, stressing their potential solutions and problems within this field. In this framework, some recent suggestions and proposals for the improvement of the private international law systems in the human rights’ field are discussed. Finally, the concluding remarks pay due attention to the efficiencies of the current EU system, yearning for a more articulated international cooperation in all the possible involved facets.
Emilia Maria Magrone, Researcher at the University of Bari, Pluralità di fonti per la tutela di un minore straniero presente in Italia e necessità di un loro coordinamento (Plurality of Sources in the Protection of a Foreign Child Present in Italy and Need for Coordination) [in Italian]
This article analyses a decree issued by the Court of Appeal of Bari rejecting the complaint of an Albanian citizen against a previous decree of the Family Tribunal of Bari. The Tribunal had ordered the forfeiture of the woman from parental responsibility towards her young child (an Albanian citizen, as well) and other measures for the protection of the child. The cross-border features of the case have provided the opportunity for highlighting the different regulatory sources likely to be applied in the field of protection of foreign children such as Regulation (EC) No 2201/2003, the 1996 Hague Convention on the protection of children and the Italian rules on jurisdiction and applicable law, and to verify whether the relevant rules relating to both jurisdiction and applicable law have been correctly applied. In this regard, the decree of the Court of Appeal is substantially compliant with the best interests of the child, but raises some perplexities for the failure to ascertain the habitual residence of the child and consequently for having applied the internal rule on tacit acceptance of jurisdiction rather than Article 8 of Regulation No 2201/2003. Another unclear aspect of the Court’s ruling is that it did not specify on the basis of which conflict-of-law rule Italian law was applied.
In addition to the foregoing, in this issue Fausto Pocar, Professor Emeritus at the University of Milan, penned a moving tribute in memoriam of Professor Alegría Borrás.
Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Andrew DICKINSON, Edwin PEEL (eds), A Conflict of Laws Companion. Essays in Honour of Adrian Briggs, Oxford University Press, Oxford, 2021, pp. XLIX-377.