It has been our book of the month for a few weeks now, but as yet we have not formally announced the publication of Professor Adrian Briggs‘ latest work, Agreements on Jurisdiction and Choice of Law (Oxford, OUP, 2008). So, here’s the blurb:

In this book, the author analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book will be useful in particular to practising lawyers seeking to draft, interpret or enforce the types of contract discussed, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law.

Written by an academic who is also a practising barrister, this book gives in-depth coverage of how the instruments and principles of private international law can be used for the resolution of cross-border or multi-jurisdictional disputes. It examines the operation and application of the Brussels Regulation, the Rome Convention and the Hague Convention on Exclusive Choice of Court Agreements in such disputes, but also discusses the judgments and decisions of the courts in significant cases such as Turner v Grovit, Union Discount v Zoller, and De Wolf v Cox.

Much of the book is given over to practical evaluation of how agreements on jurisdiction and choice of law should be put together, with guidance on, amongst other things, drafting of the agreements (including some sample clauses), severability of agreements, consent, and the resolution of disputes by arbitration.

The table of contents:

1. Introduction and Scheme
2. Consent in private international law
3. Dispute resolution and severability
4. Clauses, principles, and interpretation
5. Drafting agreements
6. Jurisdiction agreements: primary obligations
7. Jurisdiction agreements: Brussels Regulation
8. Jurisdiction agreements: secondary obligations
9. Foreign Judgments
10. Agreements on choice of law
11. Giving effect to agreements on choice of law
12. Agreements to resolve disputes by arbitration
13. Conclusions

A more detailed table of contents can be found on the OUP website, where you can also download a sample chapter (PDF). The price is £145, and you can buy it from Amazon, or OUP. Needless to say, it is highly recommended.

Yesterday, the U.S. Supreme Court delivered its decision in Exxon v. Baker. The central issue of the case was whether an award of punitive damages of US$ 2.5 billion (as reduced by the lower courts from an initial award of US$ 5 billion) was excessive as a matter of maritime common law. The Court held 5 to 3 (with Alito recused) that such awards should be limited by using a ratio of punitive to compensatory damages. The court held that, in maritime cases, a ratio of 1:1 is a fair upper limit. Thus, as the lower court had assessed the compensatory damages to US$ 507 million in that case, the Supreme Court held that punitive damages should be reduced to that amount as well.

This case comes after several decisions where the Supreme court has interpreted the Due Process Clause as setting limits to punitive damages awards. In those cases, it was held that a ratio superior to one digit (i.e. superior to 9:1) would rarely satisfy Due Process, and that when the award of compensatory damages was already substantial, it might be that only a ratio of 1:1 would satisfy the constitutional requirement.

There is therefore a clear trend in American law towards more reasonableness and predictability in the award of punitive damages.

To bolster its holding limiting punitive damages, the Court noted that the practice of other common law jurisdictions was different, but also that awards of punitive damages were often denied recognition abroad:

For further contrast with American practice, Canada and Australia allow exemplary damages for outrageous conduct, but awards are considered extraordinary and rarely issue. See … Noncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries as France, Germany, Austria, and Switzerland. See … And some legal systems not only decline to recognize punitive damages themselves but refuse to enforce foreign punitive judgments as contrary to public policy. See, e.g., Gotanda, Charting Developments Concerning Punitive Damages: Is the Tide Changing? 45 Colum. J. Transnat’l L. 507, 514,518, 528 (2007) (noting refusals to enforce judgments by Japanese, Italian, and German courts, positing that such refusals may be on the decline, but concluding, “American parties should not anticipate smooth sailing when seeking to have a domestic punitive damages award recognizedand enforced in other countries”).

From a conflict perspective, the interesting question is whether such an evolution of American law would change anything. Would Japanese, Italian or German courts recognize lower awards? Is size the issue? Or is it just the punitive nature of such judgments, which makes them, for conflict purposes, criminal in nature?

Comments from all jurisdictions welcome!

The first issue of 2008’s Revue Critique de Droit International Privé has just been released. It contains three articles, but only one dealing with a conflict issue per se, the public law exception within the Brussels I Regulation after the Lechouritou case (“Les actes jure imperii et le Règlement Bruxelles I – A propos de l’affaire Lechouritou”). The two other articles discuss immigration law issues.

The article is authored by French scholars Horatia Muir Watt, who teaches at Paris I University (and who was our Guest Editor of last month), and Etienne Pataut, who teaches at Cergy University.

The authors have kindly provided the following abstract:

Inasmuch as private international law in continental legal systems is entirely structured by the distinction between private cross-border relationships subjected to the conflict of laws, and the public sphere, correlatively excluded, it is now undergoing profound transformations due to to the changing nature and function of substantive « private » law. The traditional opposition between public and private law is if not discredited, at least in search of re-definition. It is not surprising, therefore, that the “public law exception” which first appeared in the Brussels Convention in 1968 and continues to figure unaltered in the new Community private international law instruments, raises considerable difficulties in the case-law of the Court of justice, and gives rise to varying constructions in the courts of the various Member States. The 2007 Lechouritou case (C-292/05) is emblematic of these difficulties, insofar as it reveals a lack of coherence between the scope of sovereign immunity and the public law exception within the Brussels I Regulation. This article uses the Lechouritou case to revisit the distinction between public and « civil and commercial matters » and suggests a new reading of the Regulation in this context.

We are pleased to announce the:

Journal of Private International Law Conference
The Rome I Regulation: New Choice of Law Rules in Contract
Friday 19th September 2008
Herbert Smith, Exchange House, London

The full programme, also set out below, can be found on our dedicated conference page. The speakers are all internationally recognised experts in the fields of private international law, insurance e-commerce and IP, and financial services. The keynote speech is to be delivered by The Honourable Mr Justice Richard Plender, Royal Courts of Justice.

Details on fees and booking can be found here – if you wish to attend, I suggest booking with all due speed as places are limited.

The conference is kindly sponsored by Herbert Smith, the University of Birmingham, the University of Aberdeen and the University of Southampton.

Programme

9.30am – 10.00am Registration and Coffee/Tea

10.00am – 10.15am Opening and Keynote Address

The Honourable Mr Justice Richard Plender, Royal Courts of Justice, ‘Towards a European Private International Law of Obligations‘

10.15am – 11.30am The General Framework

(Chair: Professor Paul Beaumont, University of Aberdeen)

Raquel Correia, Legal Adviser and JHA Counsellor, Portuguese Permanent Representation to the European Union

Andrew Dickinson, Clifford Chance LLP, London; Visiting Fellow in Private International Law, British Institute of International and Comparative Law

Dr Michael Hellner, University of Uppsala

Oliver Parker, Legal Adviser, Ministry of Justice

11.30am – 12.00pm Coffee/Tea Break

12.00pm–1.00pm Insurance

(Chair: Adam Johnson, Partner, Herbert Smith LLP)

Richard Lord QC, Brick Court Chambers

Professor Robert Merkin, University of Southampton

Louise Merrett, Trinity College, University of Cambridge; Fountain Court Chambers

1.00pm – 2.15pm Lunch

2.15pm – 3.15pm E-Commerce and IP

(Chair: Professor Gerrit Betlem, University of Southampton)

Richard Fentiman, Queens’ College, University of Cambridge

Dr Julia Hörnle, Queen Mary, University of London

Professor Paul Torremans, University of Nottingham

3.15pm – 4.30pm Financial Services

(Chair: Professor Jonathan Harris, University of Birmingham; Brick Court Chambers)

Professor Michael Bridge, London School of Economics, University of London

Professor Francisco Garcimartin Alférez, University of Madrid Rey Juan Carlos

Dr Joanna Perkins, Secretary of the Financial Markets Law Committee

Charles Proctor, Partner, Bird & Bird; Honorary Professor, University of Birmingham

4.30pm – 5.00pm Coffee/Tea Break

5.00pm – 5.30pm Panel Discussion

(Chair: Murray Rosen QC, Partner, Herbert Smith LLP)

5.30pm Drinks Reception

Booking and Fees

Another reference for a preliminary ruling on the Brussels II bis Regulation has been referred to the ECJ, this time by the Republic of Lithuania.

The Lithuanian court (Lietuvos Aukš?iausiasis Teismas) has referred the following questions to the ECJ:

Can an interested party within the meaning of Article 21 of Council Regulation (EC) No 2201/2003 apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision?

If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision brought by a person against whom that decision is to be enforced, to apply Article 31(1) of Regulation No 2201/2003, which states that ‘… Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application’?

Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring that that holder return to the State of origin the child staying with that holder, and in respect of which the certificate provided for in Article 42 of Regulation No 2201/2003 has been issued, required to examine that application on the basis of the provisions contained in Sections 1 and 2 of Chapter III of Regulation No 2201/2003, as provided for in Article 40(2) of that regulation?

What meaning is to be attached to the condition laid down in Article 21(3) of Regulation No 2201/2003 (‘Without prejudice to Section 4 of this Chapter’)?

Do the adoption of a decision that the child be returned and the issue of a certificate under Article 42 of Regulation No 2201/2003 in the court of the Member State of origin, after a court of the Member State in which the child is being unlawfully kept has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under Regulation No 2201/2003?

Does the prohibition in Article 24 of Regulation No 2201/2003 of review of the jurisdiction of the court of the Member State of origin mean that, if it has received an application for recognition or non-recognition of a decision of a foreign court and is unable to establish the jurisdiction of the court of the Member State of origin and unable to identify any other grounds set out in Article 23 of Regulation No 2201/2003 as a basis for non-recognition of decisions, the national court is obliged to recognise the decision of the court of the Member State of origin ordering the child’s return in the case where the court of the Member State of origin failed to observe the procedures laid down in the regulation when deciding on the issue of the child’s return?

The case is pending as C-195/08 (Inga Rinau)

(Many thanks again to Jens Karsten (Brussels) for information on this case.)

Update: it seems that Rinau is the first reference to the ECJ to use the “urgent preliminary reference procedure” – more information can be found on the excellent EU Law Blog (which is where we spotted it). The effect of that is that the hearing is due before the Third Chamber on 26th June 2008, less than two months after it was first lodged.

See for more information on the urgent preliminary reference procedure the following press release of the Commission which can be found here.

The International Max Planck Research School for Maritime Affairs at the University of Hamburg will award for the period commencing 1 October 2008 six Ph.D. grants for a term of two years. The particular area of emphasis to be supported by this round of grants is the Implications of Climatic Changes in the Arctic.

Deadline for applications is 31 July 2008.

More information on the International Max Planck Research School for Maritime Affairs, application requirements as well as the application procedure can be found here.

The recent case of Purple Echo Productions, Inc. v. KCTS Television, 2008 BCCA 85 (available here) addresses, at some length, the standard of proof required of jurisdictional facts.

I have recently co-written an article on a related topic – the standard of proof for jurisdiction clauses – in the Canadian Business Law Journal.  See SGA Pitel & J de Vries, “The Standard of Proof for Jurisdiction Clauses” (2008) 46 C.B.L.J. 66.

In the main, the British Columbia Court of Appeal uses the language of the orthodox cases – facts need not be proven on the balance of probabilities, but rather only need to be proven to the “good arguable case” standard.  And to some degree the decision may turn on the specifics of the province’s regulatory provisions, which allow the defendant to keep jurisdiction a live issue up to and including trial (see paras. 38 and 39 of the decision).  But overall I am troubled by the court’s analysis.

In the article, we draw the distinction between the sort of facts that can found jurisdiction under the heads of service out, like the breach of a contract committed in Ontario, and other sorts of facts.  For the former, the good arguable case standard seems right.  The plaintiff does not have to show, at the jurisdiction stage, that there has, on balance of probabilities, been such a breach.  That is for trial.  For the latter, in which we include the existence of a jurisdiction clause, there is much less reason for the lower standard of proof.  Indeed, in many jurisdictions the determination of the issue will be final in both law and fact.  In a footnote at the end of the article we make the following argument:

“This article has focused on jurisdiction clauses because of the highly important role they play—greater than any other factor—in both the jurisdiction and stay of proceedings analyses. While it is beyond the scope of this article, there may be other factual disputes on jurisdictional motions that should also use the higher balance of probabilities standard of proof rather than the traditional lower standard. It is possible, for example, that in light of the importance of whether the defendant is present in the jurisdiction, the higher standard of care should be used for a dispute over that issue. More problematic could be disputes over facts that are deemed or presumed to conclusively found jurisdiction.  See for example The Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 10.”

Purple Echo, it seems to me, is a case that fits into this area.  The facts in issue were as to whether the defendant had a place of business in British Columbia.  Why should the standard of proof for this, a “pure” jurisdictional issue (it goes to nothing else), not be the balance of probabilities?  Why delay the resolution of this issue until some later stage of the litigation?

Stephen

New references for preliminary rulings on the interpretation of the Brussels I Regulation, the Brussels II bis Regulation and the Insolvency Regulation have been referred to the ECJ:

1. Reference on Brussels I Regulation

The Swedish Högsta Domstolen has referred the following question to the ECJ:

Is the exception in the Brussels I Regulation regarding insolvency, compositions and analogous proceedings to be interpreted as meaning that it covers a decision given by a court in one Member State (A) regarding registration of ownership of shares in a company having its registered office in Member State A, which ownership is transferred by the liquidator to a company in another Member State (B), where the court based its decision on the fact that Member State A, in the absence of an agreement between the States regarding mutual recognition of insolvency proceedings, does not recognise the liquidator’s powers of disposal over property in Member State A?

The case is pending as SCT Industri Aktiebolag i likvidation v. Alpenblume Aktiebolag (C-111/08).

2. Reference on Insolvency Regulation

The Spanish Juzgado de lo Mercantil No 1 has referred the following questions to the ECJ:

1. For the purposes of Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty of European Union and the Treaty establishing the European Community, should Denmark be considered to be a Member State within the meaning of Article 16 of Regulation (EC) No 1346/2000 on insolvency proceedings?

2. Does the fact that that Regulation is subject to that Protocol mean that that Regulation does not form part of the body of Community law in that country?

3. Does the fact that Regulation No 1346/2000 is not binding on and is not applicable in Denmark mean that other Member States are not to apply that Regulation in respect of the recognition and enforcement of judicial declarations of insolvency handed down in that country, or, on the other hand, that other Member States are obliged, unless they have made derogations, to apply that Regulation when the judicial declaration of insolvency is handed down in Denmark and is presented for recognition and enforcement in other Member States, in particular, in Spain?

The case is pending as Finn Mejnertsen v Betina Mandal Barsoe (C-148/08).

3. Reference on Brussels II bis Regulation

The French Cour de Cassation has referred the following questions to the ECJ:

Is Article 3(1)(b) [of Regulation No 2201/2003] to be interpreted as meaning that, in a situation where the spouses hold both the nationality of the State of the court seised and the nationality of another Member State of the European Union, the nationality of the State of the court seised must prevail?

If the answer to Question 1 is in the negative, is that provision to be interpreted as referring, in a situation where the spouses each hold dual nationality of the same two Member States, to the more dominant of the two nationalities?

If the answer to Question 2 is in the negative, should it therefore be considered that that provision offers the spouses an additional option, allowing those spouses the choice of seising the courts of either of the two States of which they both hold the nationality?

The case is pending as Iaszlo Hadadi (Hadady) v Csilla Marta Mesko, married name Hadadi (Hadady) (C-168/08).

(Many thanks to Jens Karsten (Brussels) for the tip-off.)

This interesting book on Conflict of Laws and Economic Regulation gathers the contributions of the speakers to a conference held in Paris a year ago. It is edited by three French scholars, Mathias Audit, Horatia Muir Watt (who was our Guest Editor last month) and Etienne Pataut, who all teach in Paris.

Here is how the conference was presented:

Within the specific instance of the internal market, the installation and the operation of mechanisms of economic regulation raise a well identified difficulty. Building legal instruments suitable to ensure this regulation supposes indeed to resort to community instruments, which have by nature vocation to transcend national legal orders. However, it is the object of private international law to implement the management tools of this normative diversity. Consequently, this raises the question which will be at the center of this conference: the relationship between the internal market’s tools of regulation (set up by the European Union) and private international law.

The first part of the book discusses the influence of economic regulation on choice of law in fields which are regulated, such as companies, products, services, banks or securities. The second part wonders whether other areas such as culture, environment, employment, health and judicial services, could be subjected to economic regulation, and how this would influence choice of law.

Contributors include the three editors, but also T. Azzi, M. Behar-Touchais, O. Boscovic, E. Bouretz, F. Fages, S. Francq, M.-A. Frison-Roche, F. Garcimartin-Alferez, L. Idot, M.-N. Jobard-Bachellier, P. Mavridis, A. Perrot.

Matteo M. Winkler, an Italian scholar and practising lawyer in Milan, has recently published an article on the Eurofood case in the Berkeley Journal of International Law: From Whipped Cream to Multibillion Euro Financial Collapse: The European Regulation on Transnational Insolvency in Action.

The author has kindly provided the following abstract:

Determining the most competent court for the adjudication of a transnational insolvency case is an old problem and different theories – i.e., universalism, territorialism, modified universalism and cooperative territorialism – have been applied by courts and scholars in the past in order to adjudicate and solve the disputes concerning the insolvency of debtors having their assets in more than one country. Although different in some sense, all four theories aim to balance the same interests: domestic adjudication of foreign assets, efficiency of the bankruptcy proceedings, and protection of local investors and markets.

Significantly, the difficulties arising from the application of these theories are rooted in the current international trade system. First, states differ as to their bankruptcy procedures, especially with regard to the nature of the bankruptcy itself, the remedies available to debtors and creditors, and the priorities of creditors over the debtor’s assets. Second, the differences among the various legal regimes generate competition between courts, which makes the prospect of an international treaty very difficult.

In analysing the outcomes of Eurofood, I argue that, in determining the centre of the debtor’s main interests (COMI) pursuant to article 3 of the EC Regulation No. 1346/2000 on transnational insolvency, the European Court of Justice actually maintained an hyperflexible definition of COMI, which favours the creditors or the debtors’ race to national courts in order to find the best conditions in filing for bankruptcy. The race to national courts is well-illustrated by the European courts practice, which, instead of enforcing the spirit of cooperation and reciprocal reliance which underlies in the EC Regulation, actually backs national interests. From this standpoint, European institutions are convinced that the issue has been settled, while in reality, much work has yet to be done.

Matteo Winkler has also published two other articles on this topic in Italian, which can be found respectively in Int’l Lis, 2007, at 15, and in 21 Diritto del commercio internazionale, 2007, pp. 527-536.