M. J. Carrascosa and her ex-husband P. Innes met in a bar in New Jersey in 1999. They married that year in Spain and returned to the U.S., where they both worked. Their daughter V. was born in April 2000.

The couple separated in 2004. The parties reached a settlement under which the child would live with the mother, but Innes was entitled to visit her regularly; they also agreed that the girl would not be driven out of the U.S. without the written consent of the other parent. In January 2005, M.J. travelled to Spain with his daughter and settled in Valencia without permission from the father. Innes got a divorce sentence and the custody of the child in the U.S., while the Spanish courts ruled on the same but in favour of MJ Carrascosa. Innes asked the Spanish courts to apply the Hague Convention on child abduction, which is in force both in Spain and in the USA. The Spanish justice held that the marital agreement was a mere declaration of intent, which also unduly limited the freedom of establishment guaranteed by the Spanish Constitution; the custody of the girl belonged to the mother, the transfer of the minor had not been unlawful, and therefore the Convention was not applicable. US courts think otherwise. Apparently the problem lies in the lack of a uniform meaning of the right of custody.

 Carrascosa went to U.S. to stand trial in 2006, carrying the Spanish sentences. She was arrested and is imprisoned ever since. Last Thursday she was found guilty by a jury in New Jersey of a crime of obstruction of justice and eight others for failure to comply with what the U.S. courts decided on the custody of the child. The punishment will be decided on 23 December; Innes will appear before the judge as victim and state which penalty he would like. M.J. faces a sentence of ten years imprisonment, though optimistic voices indicate she might get only five. As she has already served more than half, she could be released immediately.

V. lives in Valencia with her grandparents. Since 2006, she has not seen neither her mother nor her father.

Source: El País, Sunday 15 November 2009.

(See also Charles Kotuby’s post on the subject)

There are interesting posts on this issue at EJIL: Talk! by Apo Akande and Marko Milanovic.

… an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition”  was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (…) This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States.

Read more here.

The last issue of the Revue critique de droit international privé was just released. It contains three articles and several casenotes. The full table of content can be found here.

The first article is authored by Professor Anne Sinay Cytermann, who teaches at Paris V University. It wonders why jurisdiction and arbitration clauses are regulated differently in consumer and labour contracts (Une disparité étonnante entre le régime des clauses attributives de juridiction et les clauses compromissoires dans le contrat de travail international et le contrat de consommation international). The English abstract reads: 

Although both are deemed weaker parties, the worker and the consumer do not benefit from the same protection on the international sphere, particularly as far as choice of jurisdiction clauses are concerned. Indeed, when such clauses are included in an employment contract, they are subjected to a highly restrictive regime, under which they are considered to be void when they derogate from mandatory heads of jurisdiction, while arbitration clauses cannot be invoked against the worker. On the other hand, when the same clauses appear in consumer contracts, they are exposed to a far ore liberal regime which validates in principle both choice of court and arbitration clauses. It would be preferable that a similar treatment be provided for both types of contract, along the lines of the model applicable to employment contracts.

The second article is authored by Franco Ferrari, a professor at the University of Verona and a a visiting professor a several law schools in New York. It offers remarks on the law governing contractual obligations in absence of choice by the parties under article 4 of the Rome I Regulation (Quelques remarques sur le droit applicable aux obligations contractuelles en l’absence de choix des parties – Art. 4 du Règlement Rome I-):

A comparison between article 4 of the 1980 Rome Convention on the law applicable to contractual obligations, the commission’s proposal in its 2003 Green Paper and the final version of the same provision in the “Rome I” Regulation shows that the latter, ostensibly a compromise between the Convention’s flexibility and the proposal’s rigid system of connecting factors, is in fact very close to the original model, at least such as it was implemented by the courts in the various Contracting States. Thus, while the Commission had attempted to correct the Convention’s principle of proximity by introducing greater certainty in the form of rigid and autonomous connecting factors, article 4 of the Rome I Regulation, which, like the Commission’s proposal, does indeed contain a list of (eight, non exclusive) connecting factors, subjects these to an escape or exception clause similar to that of the Convention, except for the fact that the negative conditions which trigger the clause are stricter. The court must examine of its own motion whether these requirements are fulfilled, even when the contract comes the difference between the Convention, in which the proximity principle presided over the determination of the applicable law in the absence of party choice, and the Regulation in which the role of this principle is less formally apparent, is in fact very limited.

In the last article, Professor Petra Hammje from Cergy University briefly presents a recent addition to the French civil code providing a choice of law rule for civil unions. There is not abstract, but I’ll report shortly on this.

Finally, I am glad to report that the Revue Critique has recently been put online and that those articles can now be downloaded.

Advocate General Dámaso Ruiz-Jarabo Colomer has passed away in Luxembourg. Born in 1949, Mr Dámaso Ruiz-Jarabo Colomer was Judge and then Member of the Consejo General del Poder Judicial (General Council of the Judiciary of Spain). He worked as professor of Administrative Law and served as Head of the Private Office of the President of the Consejo General del Poder Judicial. He was an ad hoc Judge at the European Court of Human Rights and Judge at the Tribunal Supremo (Supreme Court of Spain) from 1996. Since 19 January 1995 he was also Advocate General at the Court of Justice. Among his writings we may recall the book “El Juez nacional como juez comunitario” (Civitas, 1993), or the articles “Los derechos humanos en la Jurisprudencia de Tribunal de las Comunidades Europeas” (Poder Judicial, 1989, pp. 159-184); “Técnica Jurídica de protección de los derechos humanos en la Comunidad Europea” (Revista de Instituciones Europeas, 1990, pp. 151-186); “La jurisprudencia del Tribunal de Justicia sobre la admisibilidad de las cuestiones prejudiciales” (Revista del Poder Judicial, 1997, pp. 83-114); “La réforme de la Cour de Justice opérée par le Traité de Nice et sa mise en oeuvre future” (Revue Trimestrielle de Droit Euopeen, 2001, pp. 705-725); “Los Tribunales constitucionales ante el Derecho comunitario” (Estudios de Derecho Judicial, 2006, pp. 185-202), or the recent “El Tribunal de Justicia de la Unión Europea en el Tratado de Lisboa” (Noticias de la Unión Europea, 2009, pp. 31-40). As Advocate General he worked in many fields, including Private International Law. He will be remembered among us for his opinion in cases as Lechouritou (as. C- 292/05, on the Brussels Convention), Deko Marty (as. C- 339/07, on Regulation num. 1346/2000 of 29 May 2000 on insolvency proceedings) Roda Golf (as. C-14/08, concerning Regulation  num. 1348/2000 on the service of documents).

May he rest in peace.

Prof. Dr. Burkhard Hess (Heidelberg) has published a comprehensive work on European Law of Civil Procedure:

Europäisches Zivilprozessrecht

(C.F. Müller 2010. XXXII, 752 pages, Hardcover 128 EUR; ISBN 978-3-8114-3304-5)

The publication provides an analysis of the European Community’s legislative competences including the new legal situation under the Treaty of Lisbon, the different instruments of European procedural law, their interpretation and the relationship between the different Community instruments. In addition, the book discusses the preliminary reference procedure provided by Art. 234 EC and gives an outlook on the future developments of European procedural law as well as the possibility of creating a uniform code of European civil procedure.

In particular, the book analyses all relevant Community instruments:

• Brussels I Regulation
• Brussels II bis Regulation
• legal instruments on Judicial Assistance (Service of Documents, Taking of Evidence, Legal Aid)
• Insolvency Regulation
• European Order of Payment Procedure
• European Enforcement Order for Uncontested Claims
• Small Claim Procedure
• Maintenance Regulation
• Directive on Mediation

More information on this book can be found here.

Some of our readers will be interested in the following conference this Friday in Washington, D.C.

The Role of Ethics in International Law

Event Information
Friday, November 13, 2009 / 8:30 AM
Tillar House/Cosmos Club
Washington, D.C.

Each year, the International Legal Theory Interest Group of the American Society of International Law convenes a special conference to consider an important theoretical issue in international law. This year, the conference will focus on the Role of Ethics in International Law. Special attention will be paid both to the role of ethics in public and private international law, as well as to normative and theoretical perspectives. The panels will feature the following distinguished scholars.

The Role of Ethics in Public International Law
Moderator:  Brian Lepard, University of Nebraska School of Law
Roger P. Alford, Pepperdine University School of Law, Moral Reasoning in International Law
Oona A. Hathaway, Yale Law School, Why Do States Comply With International Law?
Edward T. Swaine, George Washington University Law School, Breaching

The Role of Ethics in Private International Law
Moderator:  Trey Childress, Pepperdine University School of Law
Lea Brilmayer, Yale Law School, The Ethical Problem in Private International Law
Perry Dane, Rutgers School of Law, The Natural Law Challenge to Choice of Law
Dean Symeon C. Symeonides, Willamette University College of Law, The Quest for Multistate Justice

Normative and Theoretical Perspectives
Moderator:  Tim Sellers, Baltimore University School of Law
Samantha Besson, University of Fribourg/Duke University School of Law, The Nature of Human Rights Theory
H. Patrick Glenn, McGill University, The Ethic of International Law
Mary Ellen O’Connell, Notre Dame Law School, FindingJus Cogens:  Preemptory Norms and Natural Law Process

Lunch will be served as part of this free conference for ASIL members ($15.00 for non-ASIL members). For further information, see here.

The awards of the most noticeable cases of the ECJ go to:

Centros:  5 votes

and

Gasser:  5 votes

But let’s congratulate also: 

Owusu: 3 votes

Krombach: 2 votes

On Monday November 23rd, 2009, the Master in European Litigation of the university of Luxembourg will celebrate its tenth anniversary.

One of various talks to be given throughout the afternoon will present and discuss the Ten Most Noticeable Cases of the European Court of Justice in the Last Decade. No doubt, the speaker will not focus specifically on private international law, but it is my intention to urge him to include at least one.

Now, the next question is of course, Which one?  

I am therefore asking readers: which case (or couple of cases) of the ECJ has been the most noticeable one in the last decade for private international lawyers? and since we got started, what about the most noticeable one since the creation of the Court?

A Dutch Proposal on Private International Law, to be included as Book 10 of the Civil Code of the Netherlands, has been put before Parliament (Tweede Kamer, 2009-2010, 32137, Vastellings- en Invoeringswet Boek 10 Burgerlijk Wetboek; with Memory van Toelichting/Explanatory Memorandum). This long-awaited proposal is a Consolidating Act of 165 provisions, merging 16 existing Conflict of Laws Acts (such as those on Names, Marriage, Divorce and Corporations), with some minor amendments. New are the 17 general provisions, containing rules on, amongst others, the application of choice of law rules, public policy, special mandatory rules, party autonomy, and capacity, though these largely reflect the current rules formulated in case-law or laid down in the special acts. Where applicable, reference to the relevant Conventions and EU Regulations is made. As for Rome I and Rome II, the Proposal provides that these Regulations also apply where the case falls outside the (material) scope of these Regulations.

Once the Proposal is adopted, this Book 10 of the Civil Code will replace the existing special PIL acts. Since it is part of the Civil Code, it only includes choice of law rules. International jurisdiction, recognition and enforcement and other international procedural issues, as far as not governed by international and EU instruments, will still be regulated by the Code of Civil Procedure.

See for earlier developments on Dutch Private International Law, Kramer, IPRax 2007/1 (overview 2002-2006)  and Kramer, IPRax 2002/6 (overview 1998-2002).

International Jurisdiction and Commercial Litigation. Uniform Rules for Contract Disputes, by Hélène van Lith, T.M.C. Asser Press (distributed by Cambridge University Press), 2009.

This interesting book includes a comprehensive analysis of the basic approaches to international jurisdiction in commercial contracts, and compares the jurisdictional systems of major continental European countries, the UK, the US and the Brussels Regulation. The author explores whether any common grounds exist in international jurisdiction rules, and assesses the feasibility of a uniform global system for international contract disputes, also in relation to the previous work of the Hague Conference on a worldwide jurisdiction convention.

This book is the commercial edition of a Ph.D., defended at Erasmus University Rotterdam in 2009.