The third issue of French Journal du Droit International (also known as Clunet) has just been released. It contains two articles dealing with conflict issues.

The first is authored by Dr. Carine Brière, who lectures at the University of Rouen. It discusses the coordination of sources in the European private international law of contract (Le droit international privé européen des contrats et la coordination des sources). The English abstract reads:

The recent conversion of the Rome Convention into a Community instrument is an opportunity to study the harmonization of sources concerning International European private contract law. Rome I regulation consists of several rules which aim to enable the balanced co-existence of different sources, sometimes to the detriment of the uniformity and legibility for the legal expert in rules applicable within the European legal sphere. This question of source coordination is not only considered in terms of application in time but also regarding territorial and material scope and concerns both EU institutions legislation as well as Rome I regulation and international conventions.

The second article is authored by Dr. Marie-Camille Pitton, a lawyer at Orrick, Rambaud, Martel (Paris). It offers a Franco-English perspective on Article 5-1, b, of the Brussels I Regulation (L’article 5, 1, b dans la jurisprudence franco-britannique, ou le droit comparé au secours des compétences spéciales du règlement (CEE) n° 44/2001). The English abstract reads:

The issue of the determination of the proper jurisdiction to hear contractual disputes was given a fresh perspective with the adoption of Regulation 44/2001. Article 5, 1 b of the Regulation provides for special jurisdiction in matters relating to a contract for the sale of goods or a contract for the provision of services. The purpose of this article was to simplify the determination of the proper forum to hear the case, which does not longer depend on the application of the method defined in the cases De Bloos/Tessili. However, new difficulties came to light when the courts were faced with establishing (a) the existence of the contract for the sale of goods or contract for the provision of services and (b) the place of performance of the contracts. The treatment of these difficulties by the courts is studied from a French/English perspective, this comparative approach being an informative tool to assess the respective efficiency of the Tribunal’s decisions.

Articles of the Journal are available online for lexisnexis suscribers.

On 17 and 18 September 2009 the Faculty of Law of the University of Padova, in collaboration with the Bar Councils of Padova and Triveneto, will host an international conference on current trends and resistances in the uniformization of European private law and civil procedural law, organised by Profs. Marco De Cristofaro and M. Laura Picchio Forlati on the occasion of the 19th annual meeting of the European Group for Private International Law (GEDIP-EGPIL): “Tendenze e resistenze all’uniformazione del diritto privato e del diritto processuale civile nell’Unione europea“. Here’s the programme (.pdf version):

First session – Thursday 17 September (h 15-18): Diritto internazionale privato e diritto uniforme alla prova del diritto europeo dei contratti

Chair: Nicolò Lipari (Univ. of Rome “La Sapienza”)

• Andrea Giardina (Univ. of Rome “La Sapienza”): Il concorso di metodi alternativi di uniformazione nel diritto europeo dei contratti;
• Jürgen Basedow (Max Planck Institute for Comparative and International Private Law, Hamburg): Lex mercatoria e diritto internazionale privato europeo dei contratti – un’analisi economica;
• Fabrizio Marrella (Univ. of Venice): L’autonomia contrattuale tra diritto internazionale privato europeo e codice europeo dei contratti;
• Erik Jayme (Univ. of Heidelberg): La violazione del diritto d’autore: giurisdizione e legge applicabile (Bruxelles I, Roma I e II).

Second session – Friday 18 September (h 9.30-13): Il mutuo riconoscimento delle sentenze straniere nel confronto/scontro tra diritto processuale inglese e diritti processuali continentali

Chair: Kurt Siehr (Univ. of Zürich)

• Trevor Hartley (London School of Economics and Political Science): Asset freezing orders in the context of recognizing judgments from other EU States and from third countries;
• Alberto Malatesta (University “Carlo Cattaneo” – LIUC of Castellanza): Il riconoscimento delle sentenze rese dal giudice competente a norma della Convenzione dell’Aja sulla scelta del foro;
• Andrea Gattini (Univ. of Padova): Il riconoscimento in Europa delle sentenze in tema di punitive damages;
• Marco De Cristofaro (Univ. of Padova): Ordine pubblico processuale e riconoscimento ed esecuzione delle decisioni nello spazio giudiziario europeo.

Further information and an online registration procedure are available on the conference’s webpage.

(Many thanks to Prof. Fabrizio Marrella)

My colleague Roger Alford has a fascinating post over at the blog Opinio Juris (available here) detailing a recent decision of the United States Court of Appeals for the Ninth Circuit in the case of Bauman v. DaimlerChrysler AG.  In that case, a panel of the Ninth Circuit held that a United States federal district court did not have personal jurisdiction over DaimlerChrysler because the corporation did not have continuous and systematic contacts with the forum.  The case arose out of the alleged kidnapping, detention, and torture of Argentinian citizens in Argentina by Argentinian state security forces acting at the direction of Mercedes Benz Argentina.  The plaintiffs sued the parent company, DaimlerChrysler AG, and the Ninth Circuit concluded that it lacked personal jurisdiction.

As Roger notes, this conclusion is not surprising under current US caselaw.  What is perhaps surprising is Judge Stephen Reinhardt’s dissent, in which he argues that promoting international human rights is a state interest that should factor into a finding of personal jurisdiction.  Reinhardt first concluded that DaimlerChrysler AG had minimum contacts in the forum through its American subsidiary.  He then examined whether it was reasonable to assert jurisdiction based on seven factors, including “the state’s interest in adjudicating the suit.”

As Roger explains, this looks very much like a forum non conveniens argument “dressed up as an assertion of personal jurisdiction.”  On the one hand, such an argument is clearly incorrect in that personal jurisdiction and forum non conveniens are different analytical frameworks.  In the context of personal jurisdiction, the question is whether the assertion of jurisdiction by a United States court is appropriate under due process.  In the context of forum non conveniens, the question is whether the forum is a convenient place for resolving the suit in light of various public and private factors.  On the other hand, there is a close relationship between the two doctrines.  The historical development of the forum non conveniens doctrine in the US was closely related to evolving concepts of judicial jurisdiction in the early 1900s.  As Pennoyer’s strict territoriality rules were transformed into a minimum contacts analysis under International Shoe, it is arguable that forum non conveniens in the US was employed to moderate expansive jurisdiction by US courts.  In that the two are connected historically, it was perhaps appropriate for Reinhardt to conflate the two analyses under a reasonableness approach.  Although, there was perhaps no reason to reach the question of reasonableness given the state of the law as to subsidiaries.

The Max Planck Institute for Comparative Public Law and International Law in Heidelberg, in cooperation with the Institute of Comparative and Private International Law, Ruprecht Karls University of Heidelberg and the Max Planck Institute for Foreign and International Criminal Law in Freiburg, is accepting applications for several doctoral research positions in the areas of international law, international private law and international criminal law beginning 1 January 2010 or later.

The Max Planck Research School on Successful Dispute Resolution in International Law will concentrate on the question which conditions must be present to successfully resolve disputes at the international level and is headed by Prof. Burkhard Hess and Prof. Rüdiger Wolfrum (both Heidelberg).

Further details and contact information can be found here.

The Commercial Law Centre at University College Dublin has arranged a morning conference next Thursday (17 September 2009, 8:45am-1pm) dealing with the Rome I and Brussels I Regulations.

According to the conference materials on the CLC’s website:

The Rome I Regulation on the Law Applicable to Contractual Obligations, replacing the Rome Convention comes into effect on 17th December 2009.

A thorough familiarity with this Regulation is essential for all professionals engaged in drafting, reviewing and litigating international commercial agreements.

At this seminar, a panel of distinguished experts will review some key elements in the Regulation:

1. What limitations does the Regulation place on the freedom of parties to an international contract to choose the governing law?
2. Where the parties fail to select a governing law, how do courts and practitioners determine the relevant law?
3. How does Rome I apply to the difficult issue of contracts on financial instruments?

The remainder of the seminar will focus on some key issues under Brussels I Regulation:

• How do practitioners ensure effective choice of court agreements under Brussels I?
• How will the Hague Choice of Court Convention, recently signed by the European Community and which seeks to establish a global choice of court regime, interact with Brussels I.
• How effective are dispute resolution agreements which embody both litigation and arbitration options?

As a consequence of increasing globalisation, the problem of concurrent international procedures is becoming more frequent. The seminar will consider the vexed question, discussed recently in Ireland in GOSHAWK DEDICATED, of whether a Brussels Regulation court as the domiciliary court of the defendant, can stay proceedings in favour of earlier proceedings begun in a non-member state court.

This seminar will provide a unique opportunity for practitioners involved in international litigation to learn about the new developments and to engage in discussion with an international panel of speakers.

As well as the author of this post, the speakers include Michael Collins SC (Chairman, Bar Council of Ireland), Michael Wilderspin (Legal Services, Commission), Dr Joanna Perkins (Financial Markets Law Committee), Geraldine Andrews QC (Essex Court Chambers) and Liam Kennedy (A&L Goodbody).

The Annual Conference on Private International and Business Law of the Academy of European Law will take place on 8-9 October in Trier.

ANNUAL CONFERENCE ON PRIVATE INTERNATIONAL AND BUSINESS LAW
ROME I, BRUSSELS I, WEST TANKERS AND CARTESIO

The seminar will provide practitioners with an analysis of the latest developments in both legislation and jurisprudence in private international and business law.

• Conflict of laws The seminar will focus on the new Regulation on the law applicable to contractual obligations (“Rome I”) which will apply from 17 December 2009. The Regulation will be presented and carefully analysed.
• European Civil Procedure In the light of the recent case law of the ECJ, the seminar will address the Brussels I Regulation (e.g. Allianz v West Tankers) and its review. The Hague Convention on Choice of Court Agreements will also be on the agenda.
• European Company Law On 16 December 2008, the ECJ delivered its long-awaited judgment in the Cartesio case. Participants will discuss the current state of play regarding the transfer of a company’s seat.

Areas of Law: Private International Law, Civil Procedure, Company Law, Judicial Co-operation in Civil Matters
Target audience: Practitioners of law involved in international business transactions, lawyers in private practice, in-house counsel, judges, notaries, representatives of ministries and other public authorities, academics

  

The full programme can be downloaded here.

The Institute for Comparative Law, Conflict of Laws and International Business Law (University of Heidelberg) and the European Commission will organise the 2nd Conference on European Procedural Law in Heidelberg titled

The Future of European Civil Procedural Law
__
Reforming the Regulation Brussels I

The conference will address in particular the following topics:

• the abolition of exequatur proceedings
• defendants in third states
• cross-border collective litigation and the Regulation Brussels I
• provisional and protective measures
• arbitration and choice of court agreements

The conference is co-organised by the Journal of Private International Law and the journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) and will be held at the Hotel “Der Europäische Hof” in Heidelberg on December 11th and 12th 2009.

More information can be found here.

UPDATE: A detailed conference programme and information on the registration procedure is now available here.

Martin Davies, ‘Reflections on the Past Decade of Transnational Litigation’ (2009) 10 Melbourne Journal of International Law 46

The brief article begins:

The past decade of transnational litigation has seen a consolidation of the trend towards disputes about venue. Increasingly, transnational litigation takes the form of a battle about where the battle is to be fought.

Cameron Sim, ‘Non-Justiciability in Australian Private International Law: A Lack of ‘Judicial Restraint’?’ (2009) 10 Melbourne Journal of International Law 102

The abstract reads:

The involvement of foreign states in domestic courts sits at the intersection between private and public international law. Whilst courts are becoming increasingly prepared to defer underlying notions of sovereignty and territoriality to protect private rights, they remain at times hesitant in adjudicating on matters concerning foreign states. The doctrine of non-justiciability affords protection to both foreign states and the forum executive in determining that courts will not adjudicate on the transactions of foreign states. This article examines the doctrine as adopted in the United Kingdom and applied in Australia, as well as the political questions doctrine of the United states and the merits-based approach followed in Canada. The article argues that foreign states are no longer sacrosanct in Australian courts, and a correct understanding of executive certification and the Australian executive’s prerogative in foreign affairs ameliorates the need for the doctrine.

Peter Handford, ‘Edward John Eyre and the Conflict of Laws’ (2008) Melbourne University Law Review 822

The abstract reads:

In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt, caused a leading activist to be tried and executed under martial law. Over the next three years, a group of leading politicians and thinkers in England attempted to have Eyre prosecuted for murder. When the criminal process failed, they attempted to have him sued for trespass and false imprisonment. Though this case, Phillips v Eyre, was mainly concerned with constitutional issues, Willes J laid down a rule for choice of law in tort which endured for nearly a century before it was finally superseded. In this article, the author illuminates the case by reference to its background. The author speculates on why the decision, which initially occasioned little notice, became the subject of academic and judicial controversy many years afterwards.

A recent decision of the Western Australian Court of Appeal is apparently the first Australian decision to address the correctness of the decision in Leroux v Brown (1852) 12 CB 801; 138 ER 1119 after the High Court of Australia’s decision in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, which adopted a wider definition of ‘substance’ for the purposes of characterisation than had previously been the case. Leroux v Brown had determined that s 4 of the Statute of Frauds (UK) was procedural, and that an oral agreement made in France was not enforceable in England despite being enforceable under its proper law.

The recent case concerned an oral contract of guarantee whose proper law was in dispute: if the law of Western Australia applied, an equivalent to s 4 of the Statute of Frauds would bar the plaintiff’s claim; whereas no such bar existed under the law of New South Wales. Characterisation and choice of law were therefore of equal practical importance: if the proper law were that of NSW and Leroux and Brown were not good law, the plaintiffs would succeed.

As it turned out, McLure JA (with whom Wheeler and Newnes JJA agreed) decided that the proper law of the contract was the law of WA, and that Leroux v Brown was no longer good law in Australia after the decision in John Pfeiffer. Thus, the Statute of Frauds applied as substantive law, and plaintiff’s claim was barred.

Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126 (22 July 2009)