An interesting conference will be hosted in Toulouse, on 17 October 2008, by the Institut de Recherche en droit européen, international et comparé (IRDEIC) of the University of Social  Sciences of Toulouse: “La matière civile et commerciale, socle d’un code européen de droit international privé?“ (The civil and commercial matters, core of a European Code of Private International Law?).

The symposium will focus on the three cornerstones of the EC Private International Law in civil and commercial matters, namely the Rome I, Rome II and Brussels I regulations, evaluating their consistency under the point of view of basic principles, structure and solutions. The underlying question is whether these pieces of European legislation can be constructed as the hard core of a European PIL code, with its own general theory and specific principles and methods, which could be extended to other fields of the conflict of laws, towards the establishment of the area of freedom, security and justice envisaged by the EC Treaty.

A more detailed presentation (in French) of the colloquium, and the complete programme are available on the conference’s webpage. Here’s an excerpt:

Ouverture du colloque: H. Roussillon, Président de l’Université des Sciences Sociale de Toulouse I; B. Beignier, Doyen de la faculté de droit de l’Université de Toulouse I.

Président de séances: M. Bogdan (Université de Lund)

• 9:00 – M. Fallon (Université Catholique de Louvain): “Les éléments d’un code européen de droit international privé”.
• 9:20 – C. Hahn (DG JLS, Commission européenne): “Les objectifs visés et les fondements de la compétence dans les textes de référence”.
• 9:40 – S. Francq (Université Catholique de Louvain): “Les champs d’application (matériel et spatial) dans les textes de référence”.
• 10:00 – Débats
• 11:00 – F. Pocar (Université de Milan): “Le choix des sous catégories et des éléments de rattachement dans les textes de référence”.
• 11:20 – H. Muir Watt (Université Paris I): “L’autonomie de la volonté dans les textes de référence”.
• 11:40 – S. Poillot Peruzzetto (Université de Toulouse I): “L’ordre public et les lois de police dans les textes de référence”.
• 12:00 – Débats

Présidente de séances: H. Gaudemet-Tallon (Université de Paris II)

• 14:00 – C. Kessedjian (Université Paris II): “La relation des textes de référence avec le droit primaire”.
• 14:20 – M. Wilderspin (Commission européenne): “La relation des textes de références avec le droit dérivé (et principalement les directives service et commerce électronique”.
• 14:40 – A. Borrás (Université de Barcelone): “La relation des textes de référence avec les textes internationaux”.
• 15:00 – Débats
• 16:00 – J.S. Bergé (Université de Paris Ouest Nanterre La Défense): “Les textes de référence et la dynamique interprétative de la Cour de justice”.
• 16:20 – L. Idot (Université de Paris II): “Le cas du droit de la concurrence dans les textes de référence”.
• 16:40 – Débats
• 17:00 – Synthèse: P. Lagarde (Université de Paris I).

No participation fee is required. Participants should register before 30 September (see the conference’s leaflet).

(Many thanks to Federico Garau, Conflictus Legum blog)

The second issue of the French Revue Critique de Droit International Privé was released some time ago. It contains one article and several case commentaries. A table of contents can be found here.

The title of the article is the Forum of Necessity (Le for de nécessité : tableau comparatif et évolutif). It discusses this head of jurisdiction which seems peculiar to the civil law of conflicts in respect of Belgian, Swiss, French and Dutch international private law. The authors are Valentin Rétornaz, a research assistant at Neuchatel university (Switzerland), and Bart Volders, a member of the Brussels bar and an adjunct professor to the university of Anvers, Belgium. The English abstract reads:

This study contains a comparative analysis of the institution known as the « forum of necessity ». Familiar to many legal systems and given pride of place in several codes of private international law, it allows a court normally without jurisdiction over a case, to decide it nevertheless in order to avoid a denial of justice. The principle behind it is an elementary principle of justice according to which no cause of action should be refused access to a court. The simplicity of such an objective may be deceptive insofar as the means to achieve it are concerned. The « forum of necessity » may indeed be difficult to manage in concrete circumstances, as the cases examined here well show. This study first attempts to draw from the main legal texts and academic writings its general characteristics and the conditions under which it allows a court to exercise jurisdiction. Then, cases and specific commentaries are examined in order to formulate some general principles.

The International Adoption Act (Law 54/2007, of December 28), is the first special Private International Law act issued in Spain. It contains a heterogeneous, extensive (possibly the most comprehensive in Comparative Law, with 34 long articles) regulation of international adoption and other measures for protecting incapables. It revokes the previous legislation dating back to 1974, amended several times since 1987. Spanish former regulation generated different types of problems; some derived from its interpretation, which was not very clear and at some points confusing and dense. Others were due to the fact that all the Spanish Comunidades Autónomas have jurisdiction regarding the protection of minors and have issued their own rules, including administrative aspects and mediation in international adoptions.

The IAA has several goals; together with the wish to put an “end to the regulatory dispersion characteristic of the previous legislation”, providing full regulation of international adoption, we find the “interests of the minor” as a guide to all adoption processes.

As a matter of fact, the Act has already missed the first goal -which, to tell the truth was too difficult to accomplish, considering Spanish state legislator and the Autonomous Regions share responsibilities in matters concerning the protection of minors. As for the second goal (the interests of the adopted minor), it has given rise to a complex model where calls for cooperation between authorities coexist with conflict of laws for the establishment of adoption, its modification and its declaration of nullity. A queer mixture of unilateralism and bilateral conflict rules has been chosen for the conversion of adoption; as for recognition, the Spanish legislatior has set up a difference between the recognition of simple adoption, through the national law of the child, and the recognition of other adoptions, which requires unilateral conditions calling to the conflict and international jurisdiction rules of the foreign authority. As some author has already said, a “truly strange methodological puzzle”…

The IAA has generated already a lot of doctrinal polemic in Spain, with very strong defenders and equally critical opponents. Opinions are mostly published in Spanish, in Spanish magazins; a short article in English will soon appear in the Yearbook of Private International Law. The law itself can be found in French at the Revue Critique de Droit International Privé, 2008.

On 5 September 2008 a Proposal for a Council Decision on the signing by the European Community of the Convention on Choice-of-Court Agreements of 2005 (COM(2008) 538 final was presented. The text of the proposal reads as follows:

Article 1 – Subject to a possible conclusion at a later date, the signing of the Convention on Choice-of-Court agreements concluded at The Hague on 30 June 2005 is hereby approved on behalf of the Community. The President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Convention on Choice-of-Court Agreements concluded at The Hague on 30 June 2005, subject to the conditions set out in Article 2.

Article 2 – When signing the Convention, the Community shall make the following declaration in accordance with Article 30 of the Convention:

“The European Community declares, in accordance with Article 30 of the Convention, that it exercises competence over all the matters governed by this Convention. Its Member States will not sign, ratify, accept or approve the Convention, but shall be bound by the Convention by virtue of its conclusion by the European Community.

For the purpose of this declaration, the term “European Community” does not include Denmark by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community [and the United Kingdom and Ireland by virtue of Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community]”.

Thanks to Helene van Lith for the tip-off.

In an article forthcoming in the French Revue de l’arbitrage, Horatia Muir Watt (Paris I University) explores further the economics of adjudication and wonders what the implications of the lead taken by international arbitration are for the governance of the global economy.

The article is in French. Its title is Economie de la justice et arbitrage international (réflexions sur la gouvernance privée dans la globalisation). The English abstract reads:

Arbitration has conquered a dominant part of the global market for dispute resolution in the field of international commerce, where it is now widely held to be a preferable alternative to adjudication before State courts. Indeed, it may be observed that access to the latter is being privatized in international litigation through the generalisation of choice of forum clauses, while the commercial courts of the more competitive national systems tend in turn to behave like private umpires. This article looks at the consequences of this contractualisation of adjudication for the governance of the global economy. In the light of the distinction set out three decades ago by the first analyses of the economics of adjudication, between the regulatory function of the courts (whether through precedent or other modes of creating case-law), seen as a public good provided by the collectivity, and the mere adjustment of private interests, which might legitimately be financed by the parties to the dispute, the transfer of international commercial adjudication to the private sector is synomynous with private appropriation of the regulatory function of of the courts, of which States are progressively divested. This transformation of international commercial adjudication into a private good, subject to a global market, is an invitation to think about normativity through the de-centered lens of legal pluralism, rather than from an exclusively State-centered perspective. On a more practical level, it should also lead to redesign the offer of private justice, so as to adapt its content to the regulatory function it is now called upon to perform 

To my knowledge, articles of the Revue de l’arbitrage cannot be downloaded.

The Hague Conference on Private International Law reports that the Hague Convention of 13 January 2000 on the International Protection of Adults will enter into force on January 1st, 2009.

This is because a third country, France, has ratified the Convention on September 18th, 2008. There are thus three countries which ratified the Convention: France, Germany in 2007 and the U.K., but for Scotland only, in 2003. Pursuant to article 57 of the Convention, this is what was necessary to trigger the entry into force in those states on the first day of the third month after the third ratification.

On the same date, the Convention was also signed by five new states: Finland, Greece, Poland, Ireland and Luxembourg.

There are now ten signatories altogether. They may eventually all ratify the Convention. If they do not, will someone assess the efficiency of the whole enterprise? This is a lot of transaction costs for harmonizing the law of three states only.

UPDATE: for a discussion of whether the Convention applies in England and Wales irrespective of the fact that the UK only ratified the Convention for Scotland, see below the comments of Michelle S. de Bruin.

• Sieg Eiselen “Goodbye arrest ad fundandam. Hello forum non conveniens?” 2008 Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law 794
• Thalia Kruger Civil Jurisdiction Rules of the EU and their Impact on Third States Oxford University Press 2008
• Thalia Kruger “Regional organisations and their dispute settlement bodies” 2008 De Jure (to be published)
• Jan L Neels “Falconbridge in Africa. Via media classification (characterisation) and liberative (extinctive) prescription (limitation of actions) in private international law – a Canadian doctrine on safari in Southern Africa (hic sunt leones!); or: simper aliquid novi Africam adferre” (2008) 4 Journal of Private International Law 167
• Jan L Neels “Tweevoudige leemte: bevrydende verjaring en die internasionale privaatreg” 2007 Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law 178
• Jan L Neels “Revocation of wills in South African private international law” (2007) 56 International and Comparative Law Quarterly 613
• Jan L Neels “The proprietary effect of reservation-of-title clauses in South African private international law” in Prof Dr Ergon A Çetingil ve Prof Dr Rayegân Kender’e 50. Birlikte Çali?ma Yili Arma?ani (2007) (Istanbul) 903 (originally published in 2006 South African Mercantile Law Journal 66)
• Jan L Neels and Eesa A Fredericks “The music performance contract in European and Southern African private international law” (part 1) (2008) 71 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg / Journal of Contemporary Roman-Dutch Law 351
• Jan L Neels and Marlene Wethmar-Lemmer “Constitutional values and the proprietary consequences of marriage in private international law – introducing the lex causae proprietatis matrimonii” 2008 Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law
• Richard Frimpong Oppong “A decade of private international law in African courts 1997-2007” (part 1) (2007) 9 Yearbook of Private International Law 223
• Richard Frimpong Oppong “Roman-Dutch law meets the common law on jurisdiction in international matters” (2008) 4 Journal of Private International Law 311
• Elsabe Schoeman and Christa Roodt “South Africa” in B Verschraegen (ed) Private International Law in R Blanpain International Encyclopaedia of Laws Kluwer Law Interational 2007
• Christa Roodt “A wider vision in choice of prescription law” (2007) 9 Yearbook of Private International Law 357
• Christian Schulze “The 2005 Hague Convention on Choice of Court Agreements” (2007) 19 South African Mercantile Law Journal 140
• Christian Schulze “Should a peregrine plaintiff furnish security for costs for the counterclaim of an incola defendant?” (2007) 19 South African Mercantile Law Journal 393
• Christian Schulze “International jurisdiction in claims sounding in money: is Richman v Ben-Tovim the last word?” (2008) 20 South African Mercantile Law Journal 61
• Omphemetse Sibanda “Jurisdictional arrest of a foreign peregrinus now unconstitutional in South Africa” (2008) 4 Journal of Private International Law 167 329
• Marlene Wethmar-Lemmer “When could a South African court be expected to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG)?” 2008 De Jure (to be published)

Frank Bates, Professor of Law at the University of Newcastle (New South Wales), has a short article entitled ‘Stay Proceedings and Forum Non Conveniens in Recent Australian Family Law’ at (2008) 57(3) International and Comparative Law Quarterly 649.  The article discusses the decision of the Full Court of the Family Court of Australia in Kwon v Lee [2006] FamCA 730; (2006) FLC 93-287, which considered the interaction between the Australian common law test for forum non conveniens applications (whether the forum is clearly inappropriate) and the legislative requirement that, in deciding whether to make a parenting order in relation to a child, the Family Court must regard the best interests of the child as the paramount consideration.

Sonya Bichkov Green (John Marshall Law School) has written an article on the conflict-of-laws issues arising out of Assisted Reproductive Technologies (ART), focusing on the current legal and judicial framework in the United States (see our previous posts by Gilles Cuniberti on a case of surrogate parenthood involving French authorities: 1, 2): “Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law“. The paper is available for download in the Selected Works of Berkeley Electronic Press.

The abstract reads as follows:

New technologies have always posed challenges to established legal norms. Assisted Reproductive Technologies (ART) in particular pose legal and ethical challenges to the law, and create never before seen legal problems. Although the ABA House of Representatives recently approved the Model Act Governing Assisted Reproductive Technology, differences in laws and rules will continue to exist. The legal issued involved are wide-ranging, including: liability issues arising from the failure of ART technology, parentage issues, disposition of embryos, and many others. As ART becomes more widely used, it is also used more in an interstate and international context. Thus, when a dispute arises, it often involves litigants from different states, and therefore creates the potential of conflicting laws.

This article discusses how many ART procedures can be done, and often times are done, across state lines, and between individuals from different states. This creates challenging legal situations for the courts, both in deciding what the law is, or should be, and second in deciding which state’s law to apply. Recent scholarship has addressed the first question but this article focuses on the second. It proposes solutions to complicated – and current – ART choice of law conundrums.

The first section describes Assisted Reproductive Technologies, so that the reader understands the background to the potential problems that may arise. The second section discusses possible problems with ART and lawsuits that have arisen, some, within the last year. The third section describes current choice of law options, and how these might be applied, and have been applied, to ART lawsuits. The last section proposes solutions for resolving multi-state ART lawsuits, including the best choice of law approach for this area of the law, and how parties can protect themselves through more proactive choices of law in contract formation.

As an appendix, readers wil also find three pieces of poetry on the complexity of conflict of laws, written by Thurman Arnold, James A. McLaughlin and the author herself:

The field of Conflicts of Law inspired two great legal thinkers – separately – to write poetry about its complexity. To their efforts, this author adds her addition to the poem, considering the particular problems created by ART.

Matthias Lehmann has written an article that, while trying to give a theoretical justification for the principle of party autonomy, attacks the dominant conception of conflict of laws. It has been published in vol. 41 of the Vanderbilt Journal of Transnational Law, pp. 381-434 (2008).

Here is the abstract:

Current theories of conflict of laws have one common feature: they all consider the question of the applicable law in terms of a conflict between states. Legal systems are seen as fighting with each other over the application of law to a certain case. From this perspective, the goal of conflicts methods is to assign factual situations to the competent rule maker for resolution. Party autonomy presents a problem for this view: if individuals are allowed to choose which law will be applied to their dispute, it seems as if private persons could determine the outcome of the battle between states—but how is this possible? This Article tries to give a theoretical solution to this puzzle. The underlying idea is that conflicts theory has to be recalibrated. Its goal should not be to solve conflicts between states, but to serve the individual, its needs and wants. Through this shift of focus, it becomes not only possible to justify party autonomy, but also to answer a number of practical questions raised by it. Furthermore, this Article will propose a new normative category, “relatively mandatory rules” and discuss some important implications that the new approach may have for conflict of laws generally.