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.

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.

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.

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

See here for a database of publications in the field of New Zealand private international law. The editor is South-African-born Dr Elsabe Schoeman of the Faculty of Law at the University of Auckland in New Zealand.

Angela Mills Wade is the Executive Director of the European Publishers Council.

In this article we consider both Brussels I and Rome II as together they set rules to determine which Court should hear a case (Brussels I), and which country’s Law should be applied (Rome II) when there is a cross-border conflict including in the case of Brussels I, cases brought against the media for defamation and violations of privacy.

At present, Rome II does not apply to the media, whereas Brussels I does. Even though the European Parliament passed a very sensible amendment from MEP Diana Wallis with the full support of a broad alliance of MEPs and stakeholders, Member States rejected the wording with the backing of the Commission. As a compromise, it was agreed that the media would be excluded from Rome II, a Study undertaken and the matter reviewed at a later time.

But media companies need the legal certainty when they publish – whether in print, on TV or online, that the editorial content complies with the law and any self-regulatory codes which apply where the final editorial decisions are taken. As more and more content is made available outside the country of first publication this legal certainty is ever more important in order to uphold the freedom of expression.

The current Brussels I regulation creates the very opposite – uncertainty and disproportionate risk of law suits in multiple jurisdictions. Plaintiffs often choose to sue publishers and journalists in a particular jurisdiction solely in order to benefit from the most favourable judicial proceedings as regards (a) the choice of the forum and consequently (b) the law that will apply to that case (determined by national conflict of law rules).  This inevitably encourages a plaintiff to seek redress for the local damages in multiple countries and according to different laws.

Although both Regulations are now under review at EU level, there are no specific references in the current consultation on Brussels I to the article which affects the media – 5(3). Therefore we take this opportunity to call for amendments to Brussels I to remove the uncertainty which 5(3) and the Shevill case have together created. This is because in all cross-border cases of defamation and privacy violations, the jurisdiction under Brussels I is the first matter to be settled, the absence of a rule to determine thereafter which country’s law should apply is an issue for media companies when defending cases of defamation and violations of privacy in countries outside the place of editorial control because under Brussels I, media companies find themselves defending cases according to foreign laws, often in multiple jurisdictions (see Case ECJ C-68/93 Shevill and Others [1995] ECR I?415, paragraph 19 where the claimants were established in England, France and Belgium and the alleged libel was published in a French newspaper with a small circulation in England. The ECJ held that, in the case of a libel in the press:

• the place where the damage occurs is the place where the publication is distributed, when the victim is known in that place (paragraph 29) and
• the place of the event giving rise to the damage takes place is the country where the newspaper was produced (paragraph 24).

The ECJ also held in Shevill that as regards the assessment by the English court applying Article 5(3) of Brussels I of whether “damage” actually occurred or not, the national court should apply national rules provided that the result did not impair the effectiveness of the general objectives of the Regulation. Furthermore the ECJ held that where a libel causes damage in several different EU Member States, the victim may sue in any of the jurisdictions where the libel is published in respect of the damage suffered in that jurisdiction.

We need to find a solution which ideally spans the two instruments, removing the threat of forum shopping by claimants and increasing legal certainty for journalists and publishers which is vital as cross-border news reporting increases. Note that since the Regulations were first enacted:

• Content is more readily available outside the country of first publication because of internet use and therefore legal certainty is extremely important in order to uphold the freedom of expression. As well as the press online, increasingly TV programmes are cross-border via VOD as well as via satellite TV.
• There has been a discernible rise in case law and particularly in relation to electronic publications and dissemination of online news on various platforms. The plaintiff can easily claim the competence of any court and applicable law since the information is accessible from any country online.
• There has been a general misperception that this problem of forum shopping is only with/in UK whereas in reality there are many examples from other countries of manifest abuse of the current system.

Of course, the EPC does not question or wish to undermine the ability of any individual’s access to justice but we feel we must point out that the current combination of forum shopping and applicable law provides an unbalanced advantage to the plaintiff and therefore directly prejudices editorial independence and press freedom in the different states, often leading to journalists self-censoring, simply to avoid the possibility of litigation.

The most proportionate solution would be to remove the media from the scope of article 5(3) which, together with Shevill gives rise to legal uncertainty and the dangers of both forum shopping and multiple actions. Instead the media should be subject to the general rule in Article 2.1 which allows plaintiffs to bring cases in their home country for cross border claims of defamation and privacy violations.

On the grounds that Brussels I gives the plaintiff full rights in determining which Court should hear their claim, given that this may not be in the country of the place of editorial control of the publication, we argue that a balanced proportionate approach should mean that any rule determining which laws should apply in such cross-border cases should be the law in the country where editorial decisions were taken.

Louis Perreau-Saussine is professor of law at the University of Nancy, France. His scholarship includes an article published at the Recueil Dalloz in May 2009 on Les mal aimés du règlement Rome 2: Les délits commis par voie de media.

1. The “Rome II” Regulation deals with harmonized conflict-of-law rules relating to non contractual obligations. Unfortunately, it was left incomplete as, inter alia, no consensus was reached on the suitable applicable law to non-contractual obligations arising out of violations of privacy and personality rights. However, the Commission made it clear that the debate should be re-open (cf. article 30 of the Regulation), and this is precisely the object of Mrs Wallis’s Working Document on the Amendement of Regulation EC N°864/2007 on the law applicable to non-contractual obligations, which offers an insightful overview on the matter

2. As the Working Document points out that “the unification of Member State laws on non-contractual obligations arising out of violations of privacy and personality rights is not a feasible option at the present stage of European legal integration” (p.7), this paper will focus on the harmonization of conflict-of-laws rules in this area of law, and, more precisely, on what could be the conflict of law rule suitably include in the “Rome II” EC Regulation. In line with the general principles of the “Rome II” Regulation, the Working Document recalls that the conflict-of-law rule must be “neutral”, i.e. independent from all the parties involved’s interests – which is said to be “very difficult” (p. 9) – and insure legal security and predictability. Moreover, the non-contractual obligations arising out of violations of privacy must put up with two specific problems, namely the “distance publication problem” – the place of the event giving rise to the damage and the place where the damage materialises are not the same – and the “multiple publications problem” – the damage materialises in several places.

In the Working paper, several connecting factors are discussed:

–         the “place in which the tort took place” (1);

–         the “place in which the damage materialises” (2);

–         the “place of the publisher’s establishment” (3);

–         a flexible rule based on choice of the applicable law either by the parties or the judge (4).

Scrutinizing both the Working Document and the Mainstrat study, it is clear that none of those four conflict-of-laws rule satisfies per se both the media organisation and the plaintiff’s interests. The media organisations tend to reject conflict-law rules n°1-2-4, blaming their lack of predictability for the defendant, and advocate the use of connecting factor n°3.  If this option satisfies the need for predictability and insures that both the “distance publication problem” and the “multiple publications problem” can be sorted out, such a rule is obviously ill-balanced in favour of the defendant, and cannot be chosen for that very reason.

3. When analysing the process which led to the exclusion of the scope of the “Rome II” EC Regulation of non-contractual obligations arising out of violations of privacy and rights relating to the personality, one of the most striking feature is how soon a special conflict law rule has been discussed, without having really challenged the suitability of the general rule of article 4 (connecting factor n° 2). On the contrary, considering, first, the general structure of the “Rome II” Regulation and, next, the general trend of the Working Document, and specially the list of the “things which need to be determined” (displayed in page 8 ), it is clear that:

– the general rule of article 4 cannot be set aside unless it has been proven that is not suitable for a category of torts: there should be good reasons to deviate from that rule.

– as the preliminary provisions of the Regulation put it (point 16), the general rule fulfils the legitimate expectations of both the publisher and the person harmed.  Moreover, article 4.3 matches the need for flexibility mentioned in the Working Document (p. 10).

– most media organisations find it impossible to apply the general rule without adapting it.

4. That said, one of the main question is: what are the changes that ought to be brought to the general rule of article 4 to make it acceptable and applicable to non-contractual obligations arising out of violations of privacy and rights relating to the personality?

• Article 4.1:

Following the Commission and the European Parliament proposals, an exception to article 4.1 should be made for the right of reply, which should remain governed by the law of habitual residence of the defendant.

The first objection to the application of that rule to non-contractual obligations arising out of violations of privacy and rights relating to the personality is the “multiple publications problem”: it can probably be solved by using the exception clause of article 4.3 which would allow the judge, in certain cases, to apply a single law to the whole case. The media’s second objection to the general rule of article 4, concerns “the possibility of a journalist losing a case under a foreign law when the material published conforms with the law of their place of establishment”. The Working Document wonders whether an “exception to the effect that a publisher should not be liable under a law that is contrary to the fundamental rights principles of its place of establishment” (p. 8) could be included. It is quite clear, however, that the drawbacks of such a rule would outweigh its advantages, for several reasons:

– first, some guidelines would have to be given as to what is a “fundamental rights principles”, and, obviously, this expression must receive a narrow interpretation;

– secondly, it will need to decide which mechanism is at stake: does it mean that the forum will have to apply a foreign public policy rule (and in that case, it is not sure whether it will it be eager to enforce the public policy of a foreign state), or are those rules part of the “lois de police”, in which case, the rule will be contrary to article 16 of the “Rome II” Regulation, which does not allow a judge to apply foreign mandatory rules…

– finally, can all the “laws of the place of establishment” be treated on the same level? One can understand that a mandatory rule of a Member state where the publisher is established, which shares some common principles with the forum (specially considering the principles settled by the European Convention of Human rights), could be applied by the forum, but what if the law of the place of establishment is very different from the law of the forum? What, specially, if the fundamental rights principles of that foreign country is contrary to the public policy of the forum? What if it appears to be contrary to a principle of EC law?

• Article 4.2:

The situation would be a journalist working in France sued for a publication in, say, England, concerning the privacy of a French-based ‘celebrity’. No doubt that article 4.2 would satisfy the interest of both parties and should be applied in this field of law. Moreover, it would allow a French forum to take over the case and apply its own law, on the basis of both articles 2 and 5-3 of the “Brussels I” Regulation (even though the English tribunals would also have jurisdiction on the basis of article 5-3).

• Article 4.3:

The possibility of applying article 4 to non-contractual obligations arising out of violations of privacy and rights relating to the personality depends greatly on how the exception clause based on the “closest ties” is drafted and used. The uncertainty involved in a bare closest ties exception rule must be limited by giving clear guidelines to the judge as to how to use this exception clause in this field of law. As the Working Document puts it, the main drawbacks of the exception clause “could be overcome by including criteria upon which the test is to be based” (p. 8). The judge liberty could also be limited by the inclusion of a “forseeability clause”, whereby a law of a country would be applied if the damage occurred in this country was foreseeable for the defendant.

As an addendum to the current symposium on Rome II and Defamation, Hugh Tomlinson QC at the International Forum for Responsible Media Blog has written a piece on the current proposals in Lord Lester’s Defamation Bill as to when an English court could assume jurisdiction over claims involving publication outside the jurisdiction. The current Clause 13 of the draft Bill reads:

(1) This section applies in an action for defamation where the court is satisfied that the words or matters complained of have also been published outside the jurisdiction (including publication outside the jurisdiction of any words or matters that differ only in ways not affecting their substance).

(2) No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere.

Read the Inforrm blog post for a full analysis of the clause.

Nerea Magallón is former Professor of Law at the University of the Basque Country. Nowadays she teaches Private International Law in Santiago de Compostela. She has taken part in several European research projects financed by the European Commission DGJustice, such as “Comparative Study on the situation in the 27 Members States as regards the law applicable to non-contractual obligations arising out of violation of Privacy and rights relation to personality”. She is co-author of  the book Difamación y protección de los derechos de la personalidad: Ley aplicable en Europa, Ed. Thomson/Aranzadi-The global law collection, December 2009.

The views that are displayed below are an extract from the opinion I had occasion to rule on the so-called Mainstrat’s Study made for the Commission with my colleagues of the University of Basque Country.

The first question to be solved is whether we should continue with the process of harmonization initiated in the field of civil non-contractual obligations, taking it into the field of violations against personality rights. In case of a positive answer we have to decide which are the methods to be used; also, if harmonisation of conflict-of-laws is a workable and satisfactory solution.

Given the difficulties of reaching a formula acceptable to all involved, we should deliberate if it would be possible to develop neutral conflict rules that, being suitable for balancing the interests of the alleged author of the damage and the injured party, might thereby serve to achieve the desired consensus.

For a potential, satisfactory unified conflict-of-law rule, its workings must guarantee a sufficient level of protection for the participants in a cross-border situation, on the one hand, and that the judicial-political conditions of the market in which they operate effectively places them in a position that ensures an equal treatment for both of them, on the other hand. Only if it can be guaranteed that neither party to the process can avoid these minimum protection standards in its actions can a unification of conflict-of-law rules be produced. For this it is necessary to ensure a balance and equality between the parties, their full knowledge of the rules of working of the market, and a high level of predictability of costs and benefits of the action or case that they are going to bring. Only under such conditions unification of conflict-of-law rules may be considered a valid tool for harmonisation.

The envisaged outcome could be based on the principle of country of origin (we follow Prof. M. Virgos Soriano and Prof. Garcimartin Alferez when they explain the meaning of “country of origin” in the European framework). The principle of country of origin starts from the assumption that market operators sell their products or render their services in accordance with their own terms. When it comes to opting for the law, they choose the most favourable one: usually, the law of their domicile or their establishment. In this way the risk and amount of costs inherent to cross-border actions fall on the other party -the buyer- who, knowing that in the event of dispute he will be subject to a foreign law, accepts it as part of the deal and is in a position to decide whether to proceed or not with the transaction. Translated into the field of infringements of personality rights or defamation by the media, this means that both parties -the injured one and the author of the injury-, should be on equal terms.

The principle of the country of origin poses difficulties when the situation of the participants is not the one that we have assumed, that is, if one of the parties is in a weaker position in relation to the other; also, when from the circumstances of the case it emerges that one of the parties does not have the same guarantees as the other – as it happens with non-contractual obligations. In this case, the party in the favourable position can succeed in choosing the applicable law considering only his/her own interests, taking advantage of the weakness or inequality of the other party: therefore, private international law designed to follow the country of origin principle fails. In the case of non-contractual obligations, if the injury’s author can choose the law applicable to potential non-contractual damage caused by his/her actions, he/she will choose the one that is most favourable, even before the damage has occurred. That means that the injured party will have to face conditions set down even before he/she became a party. In such situations, the law of the country of origin must be abandoned and the law of the country of destination should be preferred.

The logic of the law of the country of destination presupposes a difference between the parties and re-establishes a balance by choosing the law that favours the weaker party. It thereby ensures that the other party must comply at least with the minimum requirements of the law most closely linked to the injured party. The unequal position in which the parties find themselves requires that the cost of the international nature of the case fall on the party that is in the most favourable position.

This is the option chosen by the Rome II Regulation: article 4 establishes the law of the place in which the direct injury occurs or might occur. In the context of infringements against personality rights or defamation caused by the media, the first draft of the Regulation also favoured this option by including them in article 6. Article 6 of the First Draft of the Regulation refers us back to the general rule of article 3 (current art. 4 RII). Following the logic of the law of the country of destination of article 4 R II, the law applicable will be that of the place in which the damage occurs: in cases of infringements of personality rights or defamation, the place where the injured person suffers the injury to their privacy or private life; or where the effects of this infringement are most severe. This will usually be the victim’s place of residence. This does not exclude the possibility that this option will be complemented by an exception clause applicable to cases in which another law has closer links.

Amongst the advantages of the locus damni it may be highlighted that it usually coincides with the victim’s residence, therefore constituting a close link for the victim which is also predictable for the person alleged to be responsible (usually the victim of defamation committed by the press will be known by the author of the damage, who can therefore easily determine where his/her residence is, and which law will be applicable in the event of dispute).

Not surprisingly, criticisms from the press associations to this conflict of law rule have been overwhelming. On the one hand, they cite the difficulty in knowing the victim’s residence. Also, that it might happen that although the product complies with the laws in force in the country of the publisher’s establishment, and no copy of it has been distributed in the country of residence of the victim, it may end up with the law of the victim’s place of residence being applied. Nevertheless, this argument should not detain us because if no injury occurs in the victim’s place of residence it does not matter which system of laws should apply.

If we follow the logic of the country of origin, as suggested by the press and the media, the costs of the international aspects of the case will be suffered by the victim of the action carried out by third parties: an action in which he/she has no negotiating capacity as he/she knows nothing about, and cannot foresee it since the person initiating the action is fully in command; the inequity of the arrangement is unquestionable. The victim cannot predict the result because he/she does not know where or whom the injury will come from. What’s more: faced with this advantageous situation, the author can choose the country of origin that best suits him/her, and in which the regulations applicable to his/her activity will be the most favourable, without the victim having any saying or decision-making power.

Given the difficulty of breaking the stalemate on this aspect, another possibility is to try and put an end to the problems inherent in the existing substantive diversity by means of harmonisation through the establishment of a few common minimum principles. And we can say that the way has begun with the Judgement of the Court of 16 December 2008, case C-73/07.

European legislation could prevent inequalities or defects in the market by establishing minima where such deficiencies are present. If all legal systems provide a satisfactory level of protection to the victim of violations against personality rights, it would not be so attractive to the perpetrator to opportunistically seek the most favourable legal system, because all of them would have adhered to the substantive minima laid down at the community level.

As a matter of fact, unification of conflict rules should not be presented as an alternative option to substantive harmonisation of the legal systems of member states, but as an additional option. The most satisfactory solution for assuring a minimum level of concordance among legal systems to prevent problems connected with the diversity of legislation is to seek the appropriate combination between mechanisms for harmonisation of conflict-of-law rules and a certain amount of minimum substantive harmonisation. Frequently, the success of measures intended to harmonise conflict-of-law rules at the European level will depend on bringing substantive legislation and the general principles of national legal systems closer together. Thus it may be advisable in non-contractual matters to coordinate the unification of the conflict-of-law rules route with initiatives on partial harmonisation. Indeed, only harmonisation of the principles or substance of national law could justify use of the criterion of country of origin instead of the country of destination, the natural conflict-of-law rule in non-contractual matters.

Bettina Heiderhoff is Professor of Law at the University of Hamburg.

I. Overview

It would seem that there are already three camps in the symposium. The first two contributions (Wallis’ working paper, even if very carefully phrased, and von Hein’s paper) are both in favour of specific regulation to deal with violation of privacy and defamation in Rome II and have both stressed the importance of finding a balanced approach. Whilst the working paper is more strategic and, understandably, refrains from formulating a potential rule, von Hein has designed a full rule. In doing so, he has opted for a system that is, vaguely, similar to the Romanian one that Wallis’ working paper presents as an example: the location of the injured party’s habitual residence is taken as primarily decisive and this is then combined with a foreseeability rule. There is more to von Hein’s suggestion, which will be touched on below.

Boskovic’s paper also favours the integration of defamation into Rome II. However, she is promoting the application of article 4 Rome II – or, in other words, she simply wants to delete the exception in article 1(2) (g) Rome II.

The last two contributors (Dickinson and Hartley) prefer maintaining the status quo for the time being. In particular, they highlight the current revision of the Brussels I Regulation as a reason to hold off. However, it seems that article 2 and article 5 (3), which are applicable to jurisdiction in defamation cases, are not under reconstruction. There is no reason to believe that the Shevill doctrine will be changed in the near future. On the contrary, it may be advisable to draft a conflict rule soon so that, if necessary, Brussels I can be changed accordingly. Nevertheless, this position raises a very important point: Jurisdiction and applicable law are, at least in the eyes of English lawyers, often perceived as closely connected.

It seems that, as far apart as they may sound, at least the two extreme positions should be reconcilable.

II. Important issues

If a new rule on the violation of privacy rights and defamation is aspired to, then first and foremost its task must be to consider and weigh the interests of both parties. This is an obvious need with regard to the injured party. However, even more than in other cases of tortious liability, the injurer must also be protected, as he/she is acting within the sphere of basic rights, namely the right to free expression. Therefore, article 4 Rome II seems unsuitable for privacy violations.

In trying to balance potentially conflicting interests, one faces two layers of difficulty. Firstly, there is the conflict of basic laws as mentioned above. Secondly, this conflict between freedom of expression and privacy is viewed and weighted quite differently all across Europe. It is, therefore, not easy for a European conflict of laws rule to weigh the various interests in a manner that all member states will find acceptable. The task of finding a solution to this conflict is set be fulfilled by the new rule. However, it must be solved not only in PIL, but also in procedural law, when fixing jurisdiction.

Certainly, in international procedural law we are at a completely different point. Unlike Rome II, Brussels I already comprises claims based on the injury of privacy rights and the ECJ has formed a rule on how to cope with multi-state cases. The court shaped the Shevill doctrine very carefully and, it appears, acceptably. The Shevill doctrine excludes exorbitant cherry-picking for the injured and, at the same time, impedes publishers from retreating to libel havens (if they exist).

III. Lex fori solution

Having such a balanced procedural rule (even if it is judge-made) for jurisdiction, it seems obvious to test its suitability for private international law (PIL). In doing so, it is obvious that one cannot merely transpose the entire rule into PIL. Were one to do so, the result would be ridiculous: the claimant would be allowed to choose both the forum and, independently, the applicable law. If an Italian newspaper reported, in a defamatory manner, on an English actress, the actress could opt to sue the publisher in England under Italian law – or vice versa. This risk, it appears, is not quite precluded in von Hein’s approach. His draft rule allows the injured party to choose the law of the forum – but what if they don’t?  Why not force such synchronization?

By applying the lex fori, as Wagner has suggested (e.g. in the hearing), this goal is easily reached. At the same time, the somewhat contentious foreseeability test is side-stepped and, maybe more importantly, the application of foreign law in a legal field, where cultural differences truly exist, is completely proscribed.

At first glance, this seems a very un-German suggestion. After all, the lex fori paradigm is an English one and it is usually something of a taboo in continental systems. In defamation and privacy cases – and in combination with Shevill – such prejudice should be overcome, as the lex fori offers all the required advantages.

The Shevill approach has, admittedly, got its own disadvantages. While Wallis claims that “By providing a mechanism for informed choice, either by the judge or the parties themselves, from all of the available options, the conflict-of-law rule is far more likely to designate the most suitable law in practice” – this is only partly true. For one thing, following the Shevill doctrine, it is not the court that chooses the applicable law: it is always the party choosing the court that, thereby, automatically chooses the law. Now, the party obviously doesn’t make the choice personally, but acts on the advice of a lawyer. Even for a lawyer, however, it must be noted that choosing the best forum for the party is extremely difficult and mistakes will occur.

IV. End

In many papers, here and before, it has been assumed that violations of privacy rights and defamation are rare, because judicial protection is effective. Still, it should be effective and fair. Only where there are balanced rules, can media and injured parties can be certain that their rights are adequately and equally considered.

Fairness, it seems, can be reached by a conflict of law rule much more simply than by a minimum standard or unified material rule. Why should a country like France, that has article 9 cc protecting privacy, and a country like England, where, as Hartley has put it “if something is true, you should (usually) be allowed to say it”, be forced into parallel standards?