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International child abduction: navigating between private international law and children’s rights law
In the summer of 2023 Tine Van Hof defended her PhD on this topic at the University of Antwerp. The thesis will be published by Hart Publishing in the Studies in Private International Law series (expected in 2025). She has provided this short summary of her research.
When a child is abducted by one of their parents, the courts dealing with a return application must consider several legal instruments. First, they must take into account private international law instruments, specifically, the Hague Child Abduction Convention (1980) and the Brussels IIb Regulation (2019/1111). Second, they have to take into account children’s rights law instruments, including mainly the UN Convention on the Rights of the Child.
Choice of law in commercial contracts and regulatory competition: new steps to be made by the EU?
The recently published study titled ‘European Commercial Contract Law’, authored by Andrea Bertolini, addresses the theme of regulatory competition. It offers new policy recommendations to improve EU legal systems’ chances of being chosen as the law governing commercial contracts.
The Study’s main question
The European Parliament’s Committee on Legal Affairs has published a new study authored by Andrea Bertolini, titled ‘European Commercial Contract Law’ (the ‘Study’). The Study formulates the main question as follows: ‘why the law chosen in commercial contracts is largely non-European and non-member state law’. The expression ‘non-European and non-member state’ law is specified as denoting the legal systems of England and Wales, the United States, and Singapore, and more generally, common law legal systems. The Study states:
It is easily observed how most often international contracts are governed by non-European law. The reasons why this occurs are up to debate and could be quite varied both in nature and relevance. Indeed, a recent study by Singapore Academy of Law (SAL) found that 43 per cent of commercial practitioners and in-house counsel preferred English law as the governing law of the contracts. Read more
Financial Hardship and Forum Selection Clauses
The U.S. Supreme Court has long held that a forum selection clause should not be enforced when “trial in the contractual forum will be so gravely difficult and inconvenient” that the plaintiff “will for all practical purposes be deprived of his day in court.” The financial status of the plaintiff is obviously a factor that should be considered as part of this inquiry. Large corporations can usually afford to litigate cases in distant courts. Individual plaintiffs frequently lack the resources to do so. Nevertheless, the lower federal courts in the United States have repeatedly held that financial hardship on the part of the plaintiff is not enough to make an otherwise valid forum selection clause unenforceable. Read more
News
Out now: Second Edition of Conflict of Laws and the Internet
Edward Elgar has just published the second edition of Conflict of Laws and the Internet by Pedro De Miguel Asensio.
Prof. Diego P. Fernández Arroyo is appointed president of the Curatorium of the Hague Academy of International Law
This month Prof. Diego P. Fernández Arroyo, a renowned expert in Private International Law, has been appointed president of the Curatorium of the Hague Academy of International Law. He succeeded Prof. Yves Daudet. For more information, click here and here.
Prof. Fernández Arroyo is the first Latin American to ever hold that position.
Below is an image circulated by ASADIP. Many congratulations!
Book and webinar Financing Collective Actions
Collective actions and the financing of complex mass damage cases have been among the most debated and controversial topics in civil justice in Europe over the past decade. It doesn’t need much explanation that oftentimes these complex cases involving a multiplicity of parties and events or consequences taking place in different countries trigger private international law questions, as for instance the ongoing evaluation of the Brussels I-bis Regulation evidences (see among others the 2023 Study in support of the evaluation; a 2021 Working Paper by Burkhard Hess; a 2022 report by BEUC on PIL and Cross-border Collective Redress). Another key issue is the funding of these inherently costly litigations. The Representative Action Directive, applicable since June 2023, and the European Parliament Resolution on Responsible private funding of litigation, adopted in 2022, have proliferated discussions on the funding of collective actions. With the entry into force of the Dutch collective damages procedure (WAMCA) in 2020, enabling compensatory actions, the Netherlands has re-confirmed its reputation as one of the frontrunners in having a well-developed framework for collective actions and settlements in Europe. High stake cases involving privacy, environmental law, human rights and consumer law have found their way to the courts and have benefitted from third party funding.
These developments have triggered the Dutch Research and Documentation Centre of the Ministry of Justice and Security to commission a Study on the need for a procedural fund for collective actions, published in 2023 (in Dutch). The book Financing Collective Actions in the Netherlands: Towards a Litigation Fund?, based on this study and including updates, has just been published (Eleven International Publishing 2024) and is available open access. The book is authored by Xandra Kramer (Erasmus University Rotterdam/Utrecht University), Ianika Tzankova (Tilburg University), Jos Hoevenaars (Erasmus University Rotterdam, researcher Vici team) and Karlijn van Doorn (Tilburg University). It discusses developments in Dutch collective actions from a regulatory perspective, including the implementation of the RAD, and contains a quantitative and qualitative analysis of cases that have been brought under the WAMCA. It then examines funding aspects of collective actions from a regulatory, empirical and comparative perspective. It delves into different funding modes, including market developments in third party litigation funding, and addresses the question of the necessity, feasibility, and design of a (revolving) litigation fund for collective actions.
The hardcover version of the book can be ordered from the publisher’s website, which also provides access to the free digital open access version through the publisher’s portal.
A launch event and webinar on ‘Financing Collective Actions: Current Debates in Europe and Beyond’ will take place on 3 July from 15-17.15 CET. Confirmed speakers include Jasminka Kalajdzic (University of Windsor) and Rachael Mulheron (Queen Mary University London). Registration for free here.