Hoffheimer on Conflicting Rules of Interpretation

Michael Hoffheimer, who is a professor at the University of Mississippi Law School, has posted Conflicting Rules of Interpretation and Construction in Multi-Jurisdictional Disputes on SSRN. The abstract reads:

This paper discusses history of choice of law rules for interpreting ambiguous language and criticizes current approaches that apply foreign rules of interpretation and construction when doing so frustrates the intent of parties.

And from the introduction:

This Article concludes that courts should routinely apply their own forum law to matters of interpretation and construction in the absence of a good reason for applying a different foreign rule. In principle, there are good reasons for applying the law chosen by the parties, but it makes no sense to apply such law when it frustrates their intent or effectively renders a contract illusory. A forum’s own principles of interpretation will be flexible enough to take into consideration any foreign law relied on by drafters, just as they will be flexible enough to consider the meaning of foreign words and phrases.

Knapp on EU Data Protection and US Discovery

Kristen A. Knapp has posted Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? on SSRN.

Although the U.S. Supreme Court first considered the conflict between U.S. discovery rules and foreign non-disclosure law in 1958, a clear standard regarding how to enforce U.S. law against foreign domiciled companies has yet to emerge. As a result of the 2006 ammendments to the U.S. Federal Rules of Civil Procedure concerning electronic discovery (“e-discovery”) procedures “[m]ore and more companies with global operations are finding themselves enmeshed in e-discovery that requires a greater understanding of the issues and laws from a global perspective” because “[i]t is challenging to navigate and manage e-discovery when you have parent companies based overseas or U.S.-based companies with foreign subsidiaries.”

This paper looks at, in light of the 2006 amendments and the lack of case law regarding the affect of the 2006 amendments, whether the enforcement techniques, as applied to “paper” discovery should be applied to e-discovery and whether there is anything specific to the nature of e-discovery that necessitates a change in the application of the law. Specifically, the paper addresses how the European data privacy regime may affect the application of paper discovery enforcement techniques to e-discovery. The paper suggests that it would be unwise for U.S. courts to afford the European Data Privacy regime significant deference. Instead, the European Data Privacy regime should be treated with skepticism, similarly to how the U.S. courts have viewed “blocking statutes” contained in foreign law. In particular, treating the EU Data Privacy regime with skepticism will help to prevent the creation of perverse incentives for companies to store their data abroad that hope to avoid legitimate discovery production requests under the Federal Rules of Civil Procedure, by raising the transaction costs for such behavior.

The paper can be freely downloaded here.

Panamanian Conflict Rules Trump Forum Non Conveniens

I am grateful to Brian A. Ratner, a partner at Hausfeld LLP, for contributing this report.

Panamanian Supreme Court of Justice.

August 3, 2010.

MSD, Inc. Petitioner of the Cassation Challenge in the Case of Sara Grant Tobal, Josefina Escalante Romero et al. v. Multidata Systems International Corp. et al.

This Panama Supreme Court decision relates to U. S. defendant corporations that manufactured X-ray machinery used at the Hospital Oncológico of Panama. Because of technical defects attributed to the manufacturers, these machines emitted excessive radiation which caused serious radioactive burns to a number of patients undergoing treatment in that hospital.

Plaintiffs, all Panamanian citizens, filed a lawsuit for damages in St. Louis, Missouri, USA, where some of the defendants were domiciled. On January 8, 2004, the U.S. court dismissed the case on forum non conveniens grounds, accepting defendants’ premise that Panama was an available, and therefore, alternative forum.

Plaintiffs complied with the U.S. court order and re-filed their case in Panama. On June 9, 2006, the Panamanian District Court dismissed the case due to lack of jurisdiction and competence (“falta de competencia y jurisdicción”).

Defendants appealed this ruling. On March 17, 2009, the Panamanian Appellate Court affirmed the lower court’s decision. On August 3, 2010, the Supreme Court affirmed the Appellate Court’s decision, dismissed the Defendants’ cassation challenge and determined the amount of costs to be 200 Balboas.

Defendants had challenged the Panamanian District Court ruling on the grounds that it “had abstained from exercising its jurisdiction”. In particular, defendants argued that the following principles of Panamanian law had been breached:

The injury had taken place in Panama.
Pendency in a foreign court is an extraneous event, which should not be taken into account in determining the existence of Panamanian jurisdiction.
The ancient rule of “locus regit processum” was disregarded.
Pendency before a foreign court does not exclude Panamanian jurisdiction.
The principle of right of protection by the courts (“tutela judicial efectiva”) was ignored.
Panamanian sovereignty was violated by holding that pendency of a lawsuit abroad blocks national jurisdiction.

The above arguments were supported by the Defendants (“Movants”) with articles 259, 231, 232, 238 and 464 of the Panamanian Code of Civil Procedure (“Código Judicial”).

The record reveals that the District Court as well as the Appellate Court in Panama held that since the case had been previously filed in the U.S.; Panamanian jurisdiction had been dissolved due to preemptive jurisdiction (“competencia preventiva”).

The Supreme Court in Panama agreed with the lower court rulings finding that filing an action abroad, where defendants are domiciled means that “the present case has sufficient foreign elements, rendering possible a conflict of international jurisdiction.” This is because, the Supreme Court reasoned, plaintiffs are Panamanian, the facts originating the case happened in Panama, but the defendants are American corporations.

These international elements, known in international jargon as connecting factors (puntos de conexión) lead this Division to analyze the cassation challenge, under the special rules of Private International Law.

The record shows that the Panamanian courts took cognizance of the fact that the case was filed first in the U.S.; and was subsequently dismissed on forum non conveniens grounds.

Movants alleged strongly that Art. 259 of the Code of Civil Procedure grants Panamanian jurisdiction when the injury takes place in Panama:

However, as we have stated previously, the instant case should be viewed under the special rules of Private International Law, so this controversy must be solved according to the special conflict rules.

In that sense, our Code of Civil Procedure includes special rules for the resolution of international disputes in the area of Private International Law, which are directly applicable to this case, such as article 1421-J of the Code of Civil Procedure, the effectiveness of which was reinstated by Law 38 of 2008. Such rule, against what Petitioners plead, establishes the lack of jurisdiction of national courts to hear the present case, stating as follows:

Art. 1421-J. In cases referred to in this chapter, national judges lack jurisdiction if the claim or the action filed in the country has been previously rejected or dismissed by a foreign judge applying forum non conveniens. In these cases, national judges must reject hearing the lawsuit or the action due to reasons of a constitutional or preventive jurisdiction nature. (Emphasis added by this Court).

Therefore, although plaintiffs previously filed in Missouri, USA, where the case was ultimately dismissed on forum non conveniens grounds, the transcribed rule bars future jurisdiction in Panama under the doctrine of preemptive jurisdiction.

This case is noteworthy because it so purposefully imposes a conflict-of-laws standard to an international case. Due to Panama’s unique conflict of law doctrine- i.e. “preemptive jurisdiction”, the forum non conveniens standard in the U.S., which encourages cases to be heard in otherwise able jurisdictions, ultimately bars Panamanian plaintiffs from bringing claims it otherwise could have brought had no forum non conveniens ruling been made.

It seems that the article of forum non conveniens under Panamanian law was briefly repealed, but that it later was restored by Law 38, of June 30, 2008. An English version of the text is available here.

Note. The Panamanian statute on procedural conflict-of-laws, on which the previous decision is based, was enacted as Law 32, of 2006. This law adopted the Latin American Model Act for International Litigation. The USA / Spanish / Argentine attorney Henry Saint Dahl drafted both the Model Law and the Panamanian statute. These two texts cover issues such as service abroad, evidence, damages, and statute of limitations.

Tick, Tock: Temporal Application of the Rome II Regulation Referred to the CJEU

Two recent decisions of the English High Court consider the temporal effect of the Rome II Regulation, with the first of these making a reference to the CJEU as to the combined effect of Articles 31-32 of the Regulation (to my knowledge, the first reference with respect to this Regulation).

Each of the cases (Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB) and Bacon v Nacional Suiza [2010] EWHC 1941 (QB)) concerned proceedings with respect to injuries suffered by the claimant in a road traffic accident occurring (a) in a Member State (France in Homawoo and Spain in Bacon) and (b) in 2007 (but in each case after 20 August, the first critical date in terms of defining the temporal effect of the Regulation). In each case, proceedings were issued in England before 9 January 2009 (the second critical date). In Bacon, the sole defendant was the insurer of the only car involved in the accident (Mr Bacon was a pedestrian). In Homawoo, although the driver and owner of the car causing injury were also joined, proceedings were only pursued against the insurer. Liability was disputed (successfully) in Bacon, but accepted in Homawoo.

The question for decision by each of Sharp J (Homawoo) and Tomlinson J (Bacon) was whether the Rome II Regulation applied, with the result that damages would fall to be assessed by reference to the law applicable under the Regulation (French or Spanish law) and not the law of the forum (cf. Harding v Wealands [2007] 1 AC 1, under the pre-existing English rules of applicable law).

Under Article 31 of the Rome II Regulation, the Regulation “shall apply to events giving rise to damage which occur after its entry into force”. Under Article 32, the Regulation (with the sole exception of Article 29) “shall apply from 11 January 2009”. This combination clearly suggests, as both judges accepted, a distinction between the date of entry into force of the Regulation and its date of application, with only the latter being specifically designated in Article 32 (9 January 2009). If that view, supported by records of the discussions in the Council’s Rome II working group, is accepted as representing the legislative intention of the EU, it would seem to follow that the date of entry into force must be fixed at 20 August 2007 in accordance with Article 254 of the EC Treaty (now TFEU, Article 297). Nevertheless, an important conundrum remains to be resolved, in that the precise meaning of the words “shall apply” in Articles 31 and 32 must be explained: What is it to which the Regulation’s rules of applicable law “shall apply”?

Needless to say, given the unsatisfactory drafting, commentators differ in their approaches (for my own, see Dickinson, The Rome II Regulation (2008), paras 3.315-3.321), as did the two judges in these cases.

In Homawoo, Sharp J (at [43]-[49]) was unhappy with interpretations of Article 32 as referring to the date of commencement of legal proceeedings or the date of determination of those proceedings. She suggested (at [50]) that a reading of Articles 31 and 32 as inter-linking and complete in themselves so that the Regulation would apply only to events giving rise to damage after 11 January 2009 “would give legal certainty”, but accepted that the “clear language of Article 31” made it impossible to reach this conclusion, at least without a preliminary reference to the CJEU. Accordingly (at [51]) she posed the following questions:

If the meaning and effect of Article 31 is that Rome II is to apply to events giving rise to damage which occur after the ‘entry into force’ of the Regulation on 20th August 2007, what is the meaning and effect of ‘shall apply from 11th January 2009’ in Article 32? Is it ‘apply to proceedings commenced’ or ‘apply to determination by a court’ after that date? What is the meaning and effect of Article 31? Should it be interpreted so that the Regulation shall apply to events giving rise to damage which occur on or after 11th January 2009?

In Bacon, it was not necessary for Tomlinson finally to decide the temporal application point or to consider whether to make a reference, as he had held the claimant on the facts solely responsible for the accident and exhonerated the defendant under Spanish law, which it was agreed applied to the question of liability in any event. Nevertheless, having heard arguments similar to those advanced before Sharp J, he concluded (at [61]) that the Regulation applied to the determination as from 11 January 2009 of the law applicable to a non-contractual obligation arising out of an event giving rise to damage on or after 20 August 2007.

Although Sharp J (at [46]) had observed that parties who are considering the possibility of settlement will wish to understand what law applies to the calculation of damages and they (like judges) need to know whether Rome II applies, Tomlinson J took the view (I would submit, correctly) that the Regulation is directed at the Member States and their courts (see [61]). This is not to deny that the Regulation’s provisions are not relevant in calculating the parameters of settlement, but merely to accept that the parameters of settlement must themselves be calculated by reference to a hypothetical future determination by a court or tribunal having jurisdiction over the matter. Settlement discussions, as other commercial negotiations, are conducted by reference to the putatively applicable law, and in cross-border transactions it must be accepted that the rights and obligations of the parties may fall to be determined at different times and by different courts or tribunals according to different legal rules.

On the view taken by Tomlinson J (according with the wording and legislative history of Articles 31-32) the likely date of any future judicial determination was a factor which those negotiating settlements in the EU before 11 January 2009 would need to take into account, alongside such other factors as the identity and geographical location (within or outside a Member State) of the court(s) or tribunal(s) before which the matter could be brought if their negotiations were not to bear fruit. That is not illogical or unjust (see Tomlinson J, at [38]). Nor does it involve giving retroactive effect to the Regulation’s provisions, which were published in the Official Journal on 31 July 2007. Nor, at the point of determination, does it result in any uncertainty as to the source of the rules of applicable law that the court must apply. Further, as Tomlinson J pointed out (at [65]), the opportunity for taking any tactical advantage of the separation of entry into force and application of the Regulation ended (if this interpretation is accepted) on 11 January 2009, following which any determination by a Member State court of the law applicable to a non-contractual obligation must carried out in accordance with the Regulation’s rules. From that date, the Regulation (at least according to its major objective) promotes a different kind of certainty (decisional harmony), in ensuring that Member State courts apply the same law in the determination of non-contractual obligations, even if the event giving rise to damage occurred between 20 August 2007 and 11 January 2009. The harmonisation of approach in this area across the Member States is, of course, the primary objective of the Rome II Regulation (see Recitals (6) and (15)) and this interpretation appears, therefore, teleologically superior, even if it leads to a short term problem (now expired) in terms of the foreseeability of court decisions (see Recital (16)).

In any event, it may be questioned whether the form of “legal certainty” craved by Sharp J and other proponents of this solution is of any significant or lasting value. The very fact of a reference to the CJEU on this point (and the contrary view of Tomlinson J and many others) will leave those engaging in settlement discussions with respect to events occurring between 20 August 2007 and 11 January 2009 in doubt as to the source of the rules for determining the law applicable to the parties’ non-contractual obligations for years to come. By the time that we have a firm answer, the large majority of cases (particularly those involving traffic accidents) will likely have settled notwithstanding that doubt (unpredictability of outcome may even be seen as a driver of settlement). If the CJEU follows the view of Tomlinson J, as I would submit that it should, all those whose claims remain (and those whose claims remain undiscovered) will know where they stand, even if the events on which the claim is based occurred in the interregnum. As decisional harmony will (or ought to) have been improved, even in the latter class of cases, so too the incentive for one party to upset settlement discussions by rushing off to bring proceedings in a Member State court that it considers will apply a favourable law will (or ought to) have been diminished. We will all, according to the tin, be better off.

It is suggested that, what as first sight may appear an awkward or “arbitrary” (Tomlinson J, at [38]) combination of provisions in Articles 31 and 32, is in fact a combination of puritanism and pragmatism. The authors of the Regulation, in their unremitting quest to harmonise the rules of European private international law, were anxious that their new creation should be vivified at the earliest opportunity. That, however posed a problem in that the objectives of the Regulation might be put at risk if the creature’s handlers (Member State judges) were not trained as to how to use it, with the result that a period of education was built in. The modified prospective effect of the Regulation can be seen, therefore, as an attempt to resolve the conflict between the ideals of a single area of justice and the reality of twenty six different ones.

The significance of questions of temporal effect will, of course, fade over time as claims are resolved and new ones arise. In a few years, we may all be better off and wonder what the excitement was about, although Mr Homawoo, Mr Bacon and others in their position may question exactly what they have found themselves in the middle of.

Resolution of the DGRN on the registration of foreing insolvency proceedings

On Monday 10, August, the Spanish Boletín Oficial del Estado (BOE) published the Resolution of June 11, of the Dirección General de los Registros y el Notariado (DGRN), revoking a decision of the Registro de la Propiedad de San Javier No. 1, whereby registration of two English judgments declaring bankruptcy was denied. Registration was refused on the ground that, pursuant to the interplay of Articles 38.1 and 39 of Regulation 44/2001, 4 of the Spanish Ley Hipotecaria (Mortgage Act) and 10.1 of the Civil Code, it is necessary to obtain a prior Spanish court order enacting «un asiento procedente conforme a la legislación hipotecaria pertinente» (translated, I guess that woul be “a legitimate mortgage registration entry under the relevant mortgage legislation”). On the contrary, in the appellant’s opinion direct registration is available as provided by Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings.

According to the DGRN the proper resolution of this action requires identifying the applicable rules and their respective scopes. In this sense the DG indicates that, contrary to what is stated in the decision under consideration, Regulation 44/2001 does not apply as Article 1 excludes insolvency proceedings from the substantive scope; nor is it applicable Article 10.1 of the Civil Code , being a provision which contains a conflict rule determining the law applicable to the creation and effectiveness of real rights; an issues that does not arise in the instant case . The answer to the question must actually be sought in the international rules on insolvency proceedings contained in Regulation 1346/2000. Article 16 of the Regulation establishes automatic recognition: “Any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings”. Therefore, the system is clearly at odds with the rule stated in the Spanish Ley Concursal 2003 (Insolvency Act 2003) on the effectiveness in Spain of foreign judgments, Art. 220, which requires the exequatur procedure under the Ley de Enjuiciamiento Civil 1881 (Civil Procedure Act 1881) be attended prior to registration.

Given the primacy of EU regulations, the applicability of the solutions set out in the Spanish Insolvency Act depends on whether the instant case falls outside the scope of Regulation 1346/2000: but the answer is a clear “no”. Far from it: having examined the circumstances of the case the application of Regulation 1346/2000 is indisputable. According to this conclusion, the refusal of the inscription on the grounds that it is necessary to obtain a Spanish court order approving the foreing judgment prior to its registration can not be shared, and the Registrar’s decision must be revoked.

Parties are entitled to apply against this DGRN’s resolution before a civil court within two months.

Yves Fortier Chair at McGill

Applications are currently invited for the L. Yves Fortier Chair in International Arbitration and International Commercial Law tenable in the Faculty of Law, McGill University

The L. Yves Fortier Chair in International Arbitration and International Commercial Law, endowed in 2009, has been created through the generous support of Rio Tinto Alcan Inc., in order to bring a leading scholar and teacher in the field of international arbitration and commercial law to the Faculty of Law at McGill University. The Chair is named in honour of L. Yves Fortier, BCL’58, formerly Canada’s Ambassador, Permanent Representative, Chief Delegate to the General Assembly of the United Nations and former Chairman of the Board of Alcan Inc.

The Faculty seeks applications from scholars of international reputation in the field of international commercial law and arbitration. The purpose of the Chair is to reinforce a Canadian locus for the study and research in these fields. Through his or her engagement in teaching and research, the chair holder will advance the understanding of theoretical and practical dimensions of international commercial law including trade and investment, formal and informal regulatory models, corporate governance and responsibility as well as dispute resolution. The chair holder will teach and supervise undergraduate students and graduate students at the master and doctoral levels in the Faculty of Law. The chair holder will endeavour to establish, where appropriate, relationships with other scholars, civil servants, international organizations and experts in non-governmental organizations.

Given the bilingual environment of McGill’s Faculty of Law, the chair holder will be expected to evaluate written and oral work presented by students in both English and French.

The position is tenured and the Chair is fully endowed. In addition to a proven record as a teacher and a scholar, the successful candidate would ideally have experience interacting with international organizations and national governments. The salary and the academic rank will reflect the successful candidate’s qualifications and experience. The term for the chair is seven years and is renewable. The appointment would commence January or July 1, 2011.

The Faculty of Law at McGill University was established in 1848. Its undergraduate program represents an international benchmark for contemporary legal education, and leads to the joint award of the Bachelor of Civil Law (B.C.L.) and Bachelor of Laws (LL.B.) degrees. The graduate program comprises both a non-thesis master’s degree and substantial research degrees at the master and doctoral levels. Through its research programs and pedagogical initiatives it reflects a central commitment to the study of legal traditions, comparative law and the internationalization of law. In conjunction with this overarching mission for the study of law at McGill University, four areas of academic priority have been identified by the Faculty: Transsystemic Legal Education; Trade, Mobility and Enterprise; Public Policy and Private Resources; and Human Rights and Legal Pluralism.

The L. Yves Fortier Chair in International Arbitration and International Commercial Law will be invited to stimulate research and teaching at the intersection of these four areas, and, in so doing, to contribute to the University’s national and international profile as well as to the Faculty of Law’s expertise in comparative law.

How to apply

Applications and nominations, accompanied by a complete curriculum vitae, are now invited and will be considered as of October 15, 2010. Applications should be addressed to Professor Geneviève Saumier, Chair, Staff Appointments Committee, Faculty of Law, McGill University. Applications should be sent by electronic mail to Linda.coughlin@mcgill.ca

New Articles in Canadian Publications

Two recent publications contain several topical articles:

In the 2010 issue (volume 60) of the University of New Brunswick Law Journal are the following five articles: Catherine Walsh: “The Uses and Abuses of Party Autonomy in International Contracts”; Joshua Karton, “Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its own Drummer?”; Stephen Pitel, “Reformulating a Real and Substantial Connection”; John McEvoy, “‘After the Storm: The Impact of the Financial Crisis on Private International Law’: Jurisdiction”; and Elizabeth Edinger, “The Problem of Parallel Actions: The Softer Alternative”. This journal is available to subscribers, including through Westlaw.

In Jeff Berryman & Rick Bigwood, eds., The Law of Remedies: New Directions in the Common Law (Toronto: Irwin Law Inc., 2010) are four articles that relate to the conflict of laws: David Capper, “Mareva Orders in Globalized Litigation”; Scott Fairley, “Exporting Your Remedy: A Canadian Perspective on the Recognition and Enforcement of Monetary and Other Relief”; Garry Davis, “Damages in Transnational Tort Litigation: Legislative Restrictions and the Substance/Procedure Distinction in Australian Conflict of Laws”; and Russell Weaver & David Partlett, “The Globalization of Defamation”. This collection of articles is available for purchase here.

Call for Papers – Journal of Private International Law Conference 2011 in Milan

The Journal of Private International Law will hold its fourth major conference at the University of Milan on 15 and 16 April 2011. As was the practice at the prior conferences at the University of Aberdeen in 2005, at the University of Birmingham in 2007, and at New York University in 2009, we are including a “call for papers” on any aspect of private international law to be presented at the Conference with a view to having the final papers submitted for consideration for publication in the Journal through the normal refereeing process. Speakers will be selected on the basis of abstracts of 500 words submitted to Professor Stefania Bariatti at the University of Milan (stefania.bariatti@unimi.it) and Professor Paul Beaumont at the University of Aberdeen (p.beaumont@abdn.ac.uk) by 31 October 2010. The abstracts will be considered by the local organisers of the conference (Professors Fausto Pocar and Stefania Bariatti) and the editors of the Journal (Professors Paul Beaumont and Jonathan Harris) and a decision made by 1 December 2010.

The morning of April 15 will be devoted to presentations of papers by legal scholars at an early stage in their academic or professional careers in parallel panel sessions (in New York we had 6 panels). We particularly encourage research students, postdoctoral fellows and recently appointed lecturers to indicate that they are willing for their abstract to be considered for these parallel sessions as we want to offer an opportunity for presentations by a large number of such scholars. Your final papers will be treated on an equal footing with all other papers when it comes to them being considered for publication in the Journal.

ABS not responsible for the Prestige disaster

On November 13, 2002, the tanker Prestige sank a few miles from the Galician coast, causing an unprecedented environmental disaster. From the Spanish legal standpoint, liability for damage caused in the oil pollution, including international jurisdiction, is governed by the International Convention on Civil Liability for Oil Pollution Damage (CLC) 1969, subsequently amended. As regards the demand for accountability, the CLC follows the principle of strict liability, placing it on the owner of the ship (or his insurer or guarantor). As for jurisdiction, according to Art. IX of the CLC “Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant”. Obviously, the scheme is applicable only by courts of States Parties.

The pollution caused by the sinking of the Prestige have led to a series of legal proceedings before different courts, including those of States not affected by the accident. In particular, following the French strategy in the Amoco Cadiz case, the Spanish government brought in New York an action worth one billion dollars against the classification society of the Prestige, the American Bureau of Shipping, based in Houston. Spain claimed that the company had been negligent in the inspection of the vessel, giving a positive score only six months before the disaster. The case before these courts and against this defendant has been possible because USA is not part of the CLC, and accordingly applies its own legal regime.

However, things have not gone as expected by the Spanish government. To start with, the demand had to overcome an initial hurdle, that of the declaration of incompetence of the NY court ; this happened in 2008 thanks to the decision of the New York Court of Appeals, which accepted the arguments of the State Bar against a court in the Southern District of New York. Now (on August 4, 2010) the Southern District Court Judge Laura Taylor Swain has ruled in favour of ABS, excluding its responsibility for the wreck. In a 20-page decision, the judge admits the desirability of identifying those responsible for oil spills that cause “major economic and environmental damage.” Nevertheless, she says that under U.S. law classification societies cannot be allocated these responsibilities . In her opinion, liability lies with the owner of the vessel, who “is ultimately in charge of the activities on board the ship”; her decision is consistent with these principles .

Attorney Brian Stare, representative of Spanish interests, said he is dissatisfied with the ruling because it means giving “carte blanche” to classification societies.

So far we don’t know whether or not there would be an appeal against Judge Laura Taylor’s ruling.

19 Revista Electrónica de Estudios Internacionales (2010)

The Spanish magazine Revista Electrónica de Estudios Internacionales, num. 19, is already available (for free) here.

Contents

Articles:
I. Blázquez Rodríguez, “La dimensión mediterránea del Espacio de libertad, seguridad y justicia. Del Proceso de Barcelona a la Unión Europea por el Mediterráneo”

Abstract: Nowadays Justice and Home Affairs are considered a basic sphere of action in the context of the Euro Mediterranean Partnership. As a part of the beginning the European Neighbourhood Policy have been appeared a real Mediterranean dimension of Space of Freedom, Security and Justice. On the one hand, due to the Action Plans agreed between the EU and each partner on subject as immigration, cross-border management and, judicial and police cooperation. And the other one, as a result of action on bilateral level, like that already existing between Kingdom of Spain and Kingdom of Morocco, as a key item towards an efficient cooperation.

M.A. Rodríguez Vázquez, “La regulación del Reglamento 4/2009 en materia de obligaciones de alimentos: competencia judicial internacional, ley aplicable y reconocimiento y ejecución de sentencias”

Abstract: This article analyzes the content of the Council Regulation (EC) nº 4/2009 of 18 December 2008, on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. It is the first instrument that provides an overall response to all the questions arises from the perspective of the Private international law, regarding maintenance obligations. Reflecting on the essential aspects allows an assessment of its complex regulation.

Ágora:
A.G. Chueca Redondo, “Aproximación a la política de inmigración de la UE en el Mediterráneo”

A. Rodríguez Benot, “La Unión Europea y el Mediterráneo: ¿Hacia un marco jurídico transnacional para las relaciones familiares?”

Notes:
F.J. Zamora Cabot, “Sobre la International Comity en el sistema de derecho internacional privado de los EE.UU”

Reports:
On International Private Law (July-December 2009). Coord. Pilar Jiménez Blanco. Contributors: M. Álvarez Torné, R. Espinosa Calabuig, G. Esteban de la Rosa, K. Fach Gómez, I. Iruretagoiena Agirrezalaga, N. Magallón Elósegui, J.S. Mulero García, G. Palao Moreno, S. Sánchez Fernández, M. Vinaixa Miquel

On International Civil Procedure Law (July-December 2009). Andrés Rodríguez Benot, Alfonso Ybarra Bores