As stated on recent news published on the European Judicial Network (EJN) website, on 18 January 2007 Denmark notified the European Community that it has ratified the two "parallel" agreements concluded between the European Community and Denmark to extend to the latter the provisions of Regulation 44/2001 (“Brussels I”) and Regulation 1348/2000 on the service in the Member States of judicial and extrajudicial documents.

The entry into force of the two agreements, on 1st July 2007, will put an end to the current situation where the uniform rules contained in Reg. 44/2001 and in Reg. 1348/2000 are not in force in Denmark and they are not applied in the relations between other Member States and Denmark, due to the non-participation of the latter State in Title IV of the EC Treaty (see the Protocol on the position of Denmark annexed to the EC Treaty as amended by the Amsterdam Treaty).

As regards judicial cooperation in civil and commercial matters, the consequences of Denmark’s opting-out have been strongly criticised by the Commission, in the Explanatory memorandum accompanying the Proposals for Council Decisions concerning the conclusion and the signing of the Agreements between the European Community and the Kingdom of Denmark (COM(2005) 145 def., as regards Reg. 44/2001, and COM(2005) 146 def., as regards Reg. 1348/2000):

The non-application of Regulation 44/2001 in Denmark results in a most unsatisfactory legal situation: not only does Denmark continue to apply the old rules of the Brussels Convention, but also all other Member States have to apply these rules, i.e. a set of rules different from the one they use in their mutual relations, when it comes to the recognition and enforcement of Danish decisions.

This constitutes a step backwards given that prior to the entry into force of Regulation 44/2001 the rules of the Brussels Convention applied uniformly in all Member States. The current situation therefore jeopardizes the uniformity and legal certainty of the Community rules.

Hence the necessity to extend, by way of traditional international law instruments, the provisions of Brussels I Reg. (and of Reg. 1348/2000, strictly related to the functioning of the former) to Denmark.

The negotiations procedure and its outcome are summarized as follows in the Commission’s Proposals referred to above:

The Commission presented on 28th June 2002 a recommendation for a Council Decision authorizing the Commission to open negotiations for the conclusion of two agreements between the European Community and Denmark, extending both Regulation 44/2001 and Regulation 1348/2000 to Denmark.

The Council decided on 8 May 2003 to exceptionally authorize the Commission to negotiate […]. The Commission negotiated the parallel agreement […] in accordance with the Council’s negotiating directives, carefully ensuring that rights and obligations of Denmark under this agreement correspond to rights and obligations of the other Member States.

As a result, the parallel agreement contains, in particular, the following provisions:

• appropriate rules on the role of the Court of Justice to ensure the uniform interpretation of the instrument applied by the parallel agreement between Denmark and the other Member States;
• a mechanism to enable Denmark to accept future amendments by the Council to the basic instrument and the future implementing measures to be adopted under Article 202 of the EC Treaty;
• a clause providing that the agreement is considered terminated if Denmark refuses to accept such future amendments and implementing measures;
• rules specifying Denmark’s obligations in negotiations with third countries for agreements concerning matters covered by the parallel agreement;
• the possibility of denouncing the parallel agreement by giving notice to the other Contracting Party.

The parallel agreements were signed on 19th October 2005, following two Council Decisions of 20th September 2005 (2005/790/EC, as regards Reg. 44/2001, and 2005/794/EC, as regards Reg. 1348/2000) and subject to their possible conclusion at a later date.

The Council decision on the conclusion of the agreements can be found here:

• for Regulation 44/2001: Council Decision 2006/325/EC (OJ 2006, L 120 p. 22);
• for Regulation 1348/2000: Council Decision 2006/326/EC (OJ 2006 L 120 p. 23).

The text of the agreements can be found here, as attachments to the Council Decisions on the signing of the agreements:

• for Regulation 44/2001: Annex to Council Decision 2005/790/EC;
• for Regulation 1348/2000: Annex to Council Decision 2005/794/EC.

(Many thanks to Pietro Franzina, University of Ferrara, for the initial tip-off).

The Cour de cassation, the French supreme court for civil, commercial and criminal matters, organises conferences on a variety of topics. Although a few were held in English, they are generally in French. The speakers have been academics, lawyers or judges, both from France and from abroad.

Two conferences dealing either directly or indirectly with conflicts issues will be organised in March. The first one will take place on March 5th from 6:30 to 8:30 pm. Professor Alegrias Borras will talk on the "freedom of movement of family in Europe". The second one will take place on March 13th from 6:30 to 8:30 pm. Professor Emmanuel Gaillard will talk on the "case law of the Cour de cassation on international arbitration". For conferences organised on other topics, click here.

To attend, the Court only asks for prior registration, but it is also possible to walk in. No fees are charged. Registration online is possible, both for the Gaillard conference and for the Borras conference.

An Italian book has been recently published which collects a number of papers dealing with old and new questions raised by the modernisation of the 1980 Rome Convention and its conversion into a Community regulation (Rome I: see our dedicated page here).

Here’s a short presentation, kindly provided by Pietro Franzina (University of Ferrara), editor of the volume:

Some fourteen papers, covering a wide range of issues relating to the 2005 Commission Proposal for an EC Regulation on the law applicable to contractual obligations (Rome I), have just been published by CEDAM under the title “La legge applicabile ai contratti nella proposta di regolamento Roma I” (“The law applicable to contracts according to the Rome I proposed Regulation”), following a conference organised in 2006 by the Faculty of Law of the University of Ferrara.

Opened by an introductory paper by Professor Francesco Salerno (University of Ferrara) and Professor Luca G. Radicati di Brozolo (Catholic University of Milan), the book (in Italian) includes contributions on the following topics:

• the role of the European Court of Justice and the interpretation of the proposed regulation (Paolo Bertoli, University of Milan);
• the choice of ‘principles and rules of the substantive law of contract recognised internationally or in the Community’ as the law applicable to contractual obligations (Fabrizio Marrella, University of Venice);
• the law applicable to contracts in the absence of choice and the relation between the proposed regulation and international conventions bearing uniform rules (Bernardo Cortese, University of Padua);
• the law applicable to consumer contracts and individual employment contracts (Giuseppina Pizzolante, University of Bari, and Paolo Venturi, University of Siena, respectively);
• the law applicable to agency (Pietro Franzina, University of Ferrara);
• ordre public and mandatory rules (Giacomo Biagioni, University of Cagliari);
• the law applicable to voluntary assignment of rights (with two different papers, by Anna Gardella, Catholic University of Milan, and Antonio Leandro, University of Bari);
• consequences for the Italian system of Private International Law deriving from the conversion of the Rome Convention into a Community instrument (Fabrizio Marongiu Buonaiuti, University of Rome ‘La Sapienza’).

Title: “La legge applicabile ai contratti nella proposta di regolamento Roma I” (P. Franzina, editor). ISBN: 978-88-13-26251-5. Pages: XII-180. Available from CEDAM.

The U.S. Court of Appeals for the Federal Circuit recently held that a U.S. district court did not possess subject matter jurisdiction over the alleged infringement of a foreign patent. The case of Voda v. Coris Corp., concerned several patents owned by Dr. Jan Voda, a cardiologist who invented and patented a catheter for coronary angioplasty. Believing that Cordis Corp. infringed his U.S. patents, Voda brought suit in the Federal District court for the Western District of Oklahoma. Voda ultimately obtained a large damages award from the trial court based upon Cordis' willful infringement of his U.S. patent.  Voda also sought, however, to assert patents on the same invention that he had procured in Britain, Canada, France, and Germany.

There was no question that the court had jurisdiction to hear his claim of infringement of his U.S. patents.  The interlocutory appeal to the Federal Circuit, however, concerned whether his claims of foreign infringement could be adjudicated on a consolidated basis under the discretionary power of Federal courts to hear "supplemental" claims within the same "case of controversy" as those under the courts' original jurisdiction.  See 28 U.S.C. 1367 (the "supplemental jurisdiction statute").  Voda asserted that supplemental jurisdiction over the foreign patents was proper, and that exercising such jurisdiction would be fair and efficient for both litigants. 

Writing for the majority, Judge Gajarsa concluded that the district court abused its discretion. The court turned first to the Paris Convention for the Protection of Industrial Property, and observed that although the Convention contained no express provision allocating jurisdiction to hear patent infringement claims, there nonetheless existed an inferred a principle that one jurisdiction should not adjudicate the patents of another.  In response to Voda's claims that "the trend of harmonization of patent law" supports a consolidated adjudication in one court, the Judge Gajarsa noted:

Regardless of the strength of the harmonization trend, however, we as the U.S. judiciary should not unilaterally decide either for our government or for other foreign sovereigns that our courts will become the adjudicating body for any foreign patent with a U.S. equivalent 'so related' to form 'the same case or controversy.' Cf. F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 166-67 (2004) (finding “no convincing justification” for providing such subject matter jurisdiction in antitrust context). Permitting our district courts to exercise jurisdiction over infringement claims based on foreign patents in this case would require us to define the legal boundaries of a property right granted by another sovereign and then determine whether there has been a trespass to that right.. . .Based on the international treaties that the United States has joined and ratified as the 'supreme law of the land,' a district court’s exercise of supplemental jurisdiction could undermine the obligations of the United States under such treaties, which therefore constitutes an exception circumstances to decline jurisdiction."

Judge Newman responded with a thoughtful dissent, noting generally that courts routinely apply foreign law, and specifically that courts from other nations have adjudicated claims of foreign patent infringement.  Judge Newman also found that no treaty prohibited one national court from resolving private disputes that involve foreign patent rights. 

Commentators have reacted to this decision.  Professor Jay Thomas thoughtfully writes at Opinion Juris that:

"Voda v. Cordis represents a lost opportunity for the Federal Circuit to ameliorate the burdens of costly, piecemeal patent litigation faced by innovators and the world’s judicial systems alike. The majority’s holding is more narrow than may be initially apparent, however. The majority stressed that jurisdiction under § 1367(c) is an area of discretion, and that different results might obtain 'if circumstances change, such as if the United States were to enter into a new international patent treaty or if events during litigation alter a district court’s conclusions regarding comity, judicial economy, convenience, or fairness.' . . . For now, innovative industries should recognize that although technology knows no borders, the extent of federal jurisdiction over multinational patent disputes may indeed be constrained by courts uncomfortable with the prospect of adjudicating such cases."

This decision presages additional developments, and increased interest, in the extrateritoriality of national patent laws.  For example, the United States Supreme Court will hear argument next month in Microsoft v. AT&T, a case concerning the scope of a federal law that prohibits the export of unassembled component parts for overseas assembly of a product that would, if made or used in the U.S., infringe a U.S. patent.  Veteran Supreme court heavyweights Theodore Olson and Seth Waxman will spar over whether that provision applies to software copied abroad from a master disk supplied from the United States.  AT&T has submitted that Microsoft "supplied" an AT&T code to foreign computer manufacturers "with the intent that those companies would pay Microsoft a royalty each time they combined that code with other components that would infringe an AT&T patent if made or used in the United States."  Microsoft contends that this result would create a campaign to stretch U.S. patent laws to reach international dealings in software.  Interestingly, the United States as amici curiae argues for a territorial limitation of U.S. patent law and asserts that AT&T's remedy "lies in obtaining and eforcing foreign patents, and not in attempting to extend U.S. patent law to overseas activities."  Comments on this case, as well as some of the parties' briefs and a related podcast, can be found on the SCOTUSblog, and also on Law.com. 

Andrew McKnight (Salans) has written written his annual review in the Journal of International Banking Law and Regulation on legal developments during 2006 of interest to practitioners in the insolvency and conflict of laws fields (J.I.B.L.R. 2007, 22(4)). Here’s the abstract:

This, the second part of a two part article, examines legal developments during 2006 of interest to practitioners in the insolvency and conflict of laws fields. Reviews the UK adoption of the Model Law on Cross Border Insolvency 1997, the range of issues examined by the Court of Appeal in Manning v AIG Europe UK Ltd and other case law on topics including common law assistance in foreign insolvency proceedings, cross border insolvencies, transactions at an undervalue, administration expenses, court powers to determine a state’s entitlement in a bank account, jurisdiction agreements, sovereign immunity, conflict of laws rules concerning tortious issues and international arbitration.

Cases referred to: Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings Plc [2006] UKPC 26; [2006] 3 W.L.R. 689 (PC (IoM)); HIH Casualty & General Insurance Ltd v Axa Corporate Solutions (formerly Axa Reassurance SA) [2002] EWCA Civ 1253; [2002] 2 All E.R. (Comm) 1053 (CA (Civ Div)); Manning v AIG Europe UK Ltd [2006] EWCA Civ 7; [2006] Ch. 610 (CA (Civ Div)); AY Bank Ltd (In Liquidation), Re [2006] EWHC 830; [2006] 2 All E.R. (Comm) 463 (Ch D (Companies Ct)); Svenska Petroleum Exploration AB v Lithuania (No.2) [2005] EWHC 2437; [2006] 1 All E.R. (Comm) 731 (QBD (Comm)); Trafigura Beheer BV v Kookmin Bank Co (Preliminary Issue) [2006] EWHC 1450; [2006] 2 All E.R. (Comm) 1008 (QBD (Comm)); Harding v Wealands [2006] UKHL 32; [2006] 3 W.L.R. 83 (HL).

The European Max-Planck Group for Conflict of Laws in Intellectual Property (CLIP) is a group of scholars in the fields of intellectual property and private international law that was established in 2004 with the aim of drafting a set of principles for conflict of laws in intellectual property and to provide independent advice to European and national law makers. It is funded by the Max-Planck Society.

Two very interesting papers recently released by CLIP have been published on the website of Max Planck Institute for Comparative and International Private Law (Hamburg).

The purpose of the first document ("Exclusive Jurisdiction and Cross Border IP (Patent) Infringement – Suggestions for Amendment of the Brussels I Regulation") is to provide input for the report to be prepared by the Commission on the functioning in practice of the Brussels I Regulation, and to submit proposals for its amendment (see Art. 73 of the Regulation).

It deals with adjudication of foreign IP rights at a European level, as resulting from the well-known judgments of ECJ of 13 July 2006 (GAT, case C-4/03, and Roche, case C-539/03): the Group analyses the jurisdictional issues related to adjudication of foreign IP rights involving validity as an incidental matter (the GAT problem) and to claims against multiple defendants (the Roche problem). It strongly criticises the outcome of the two decisions, as it "weaken[s] the position of the rightholders and clash[es] with the aim of establishing a genuine European justice area":

In consequence of ECJ judgments […] it appears no longer feasible for a national court to allow for consolidation of claims against a person infringing parallel intellectual property rights registered in different Member States, and/or to accept a joinder of claims against multiple defendants engaged in concerted actions. It is feared that this will entail considerable impediments for an efficient enforcement of intellectual property rights, in particular of patents.

In order to avoid such a result, the Group proposes a number of amendments to Art. 6 (1) of Brussels I Regulation (introduction of a paragraph clarifying the concept of "risk of irreconcilable judgments" and, in case, adoption of the "spider in the web" rule for actions against groups of companies engaged in coordinated activities) and to Art. 22 (4) (insertion of a specific provision related to incidental claims on validity or registration of IP rights, with inter partes effects).

The second paper contains the Group's comments on the specific provision on contracts relating to intellectual and industrial property rights (Art. 4 (1) (f)) introduced by the European Commission in its Rome I Proposal. In the framework of general criticism towards the adoption of a list of fixed connection points in Art. 4 (see extensively the detailed article-by-article "Comments on the Commission's Proposal" of Max Planck Institute for Comparative and International Private Law), the Group denounces risks of inconsistencies of the proposed regime for intellectual property in the field of franchise and distribution agreements, and possible overlappings with provisions set out in Art. 4 (1) (g) and (h).

The paper further analyses the amendments to Art. 4 (1) (f) proposed in the Draft Report currently under examination in the European Parliament Committee on Legal Affairs. The Group welcomes the more flexible approach taken by the Draft Report in Art. 4, but still advocates the deletion of any special rule on contracts relating to IP rights:

The Group recommends the following approach:

• The European legislator should not introduce a rule on the law applicable to contracts relating to intellectual property rights in Art. 4 of the future Rome I-Regulation.
• Should the European legislator prefer to insert such a rule in Art. 4, this rule should be drafted as a presumption and not as a fixed rule. Therefore, the future Art. 4 (1) (f) should rather be based on the European Parliament’s Rome I-Draft Report and not on the Commission’s Rome I-Proposal […].

Both documents can be downloaded here. Highly recommended.

BAILII has just published the intriging judgment in Iran v Berend [2007] EWHC 132 (QB), which was handed down last Thursday (1 February 2007).

The case concerned a fragment of an Achaemenid limestone relief, believed to originate from the first half of the fifth century B.C in Persepolis (see some of the background to the dispute on Iran's Cultural Heritage News Agency website – be wary of the obvious bias, however.) Mme Denyse Berend allegedly acquired title in the fragment after it was sold to her through an agent at a New York auction in October 1974. Mme Berend attempted to sell the fragment at auction in July 2005, but Iran sought (and was granted) an injunction to prevent the sale.

The defendant, Berend, quite sensibly argued that, as the fragment is movable property, the English conflict of laws rules dictate that French law governs the question of title to the fragment, since the defendant obtained her title to it at a time when the fragment was in France (i.e. on delivery in November 1974). She would obtain it either by good faith or by prescription under Article 2262 of the French Code, on the basis that she had possessed it for more than 30 years.

The claimant, Iran, sought to argue that the English court should not simply apply French domestic law, but should apply also the French conflict of law rules, i.e. the English court should apply the doctrine of renvoi. The claimant argued that a french court would apply an exception to the lex situs rule, and apply Iranian law (as the law of the state of origin), which would in turn demand return of the fragment.

So what of renvoi in English law? Eady J. stated:

Whether or not it should apply in any given circumstances is largely a question of policy. To take examples, it has been applied most frequently in the context of the law of succession; on the other hand, it is not applied in the fields of contractual relations or tort. It seems that the modern approach towards renvoi is that there is no over-arching doctrine to be applied, but it will be seen as a useful tool to be applied where appropriate (i.e. to achieving the policy objectives of the particular choice of law rule): see e.g. Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC [2001] QB 825, at [26]-[29], per Mance LJ; Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54, High Court of Australia (see Reid Mortensen's excellent article in the Journal of Private International Law on Neilson)

Eady J. analysed the crumbs left by various decisions on other forms of property on whether or not the court should accept a renvoi. Ultimately, it seems, weight was given to the following passage in Dicey, Morris & Collins:

As a purely practical matter it would seem that a court should not undertake the onerous task of trying to ascertain how a foreign court would decide the question, unless the advantages of doing so clearly outweigh the disadvantages. In most situations, the balance of convenience surely lies in interpreting the reference to foreign law to mean its domestic rules

Eady J. found particular solace in the judgment of Millett J. in Macmillan v Bishopsgate Investment Trust plc (No3) [1995] 1 WLR 978:

…it seems from the context to be clear that Millett J was endorsing an established policy in English law of choosing the lex situs in the sense of domestic law. Otherwise it would hardly make sense for the judgment to reject the doctrine of renvoi. I can find no reason to differ from Millett J and to hold, for the first time, that public policy requires English law to introduce the notion of renvoi into the determination of title to movables.

As a result, Eady J. held, "I determine the first question in favour of the Defendant. I hold that, as a matter of English law, there is no good reason to introduce the doctrine of renvoi and that title to the fragment should thus be determined in accordance with French domestic law."

A sigh of relief all round, then. French domestic law was unequivocal that Mme Berend was entitled to the fragment, and so she succeeded. Eady J. did, however, go on to ask whether a French court would have applied Iranian law for the "sake of completeness". Just to rub it in, Eady J. found he was not so persuaded. One wonders whether there will be any further appeal from Iran, although after Mr Justice Eady's judgment they must be fairly discouraged.

Update: We have been told that the possibility of an appeal by Iran is extremely unlikely. 

Many thanks to Derek Fincham (University of Aberdeen) for the story and his excellent write-up over on the Illicit Cultural Property blog.

The last issue of one of the two French leading journals of international private law, the Revue Critique de Droit International Privé (2006), was released last week. In addition to several case commentaries, it contains three articles. Unfortunately and contrary to previous practices, the Revue does not provide any abstract for any of them, even in French.

The first article is from Dr. Hunter-Henin from UCL. Its title is "Droit des personnes et droits de l'homme : Combinaison ou confrontation" (Family Law and Human Rights: Can They Go Along or Do They Exclude Each Other?). I am grateful to her for providing me with the following abstract:

Developments in European Family Law via EC Regulations or fequent recourse to the right to respect for private and family life under article 8 of the European Convention on Human Rights have increased individual freedom. However, the concepts of personhood, family and personal status have as a result lost some of their meaning and permanence.

This article first examines the process by which personhood and the traditional personal connecting factor in French Private International Law – nationality – have both lost most of their substance.

It then purports to suggest ways in which the Human Rights’ discourse and the benefits of EU Regulations may blend with rather than trump traditonal values of Private International law, thus ensuring better predictability of individual judicial outcomes and narrowing the current widening gap between European and non European countries.

The author of the second article is Michael Wilderspin from the European Commission. Its title in French is "La compétence juridictionnelle en matière de litiges concernant la violation des droits de propriété intellectuelle. Les arrêts de la Cour de Justice dans les affaires C-4/30, GAT c. LUK et C-539/03, Roche Nederland c. Primus et Goldberg" (Jurisdiction in Disputes Involving the Infringement of Intellectual Property Rights. The Decisions of ECJ in Cases C-4/30, GAT c. LUK and C-539/03, Roche Nederland c. Primus et Goldberg).

The authors of the third article are Dr. Jault-Seseke and Dr. Robine from Rouen University Law Faculty. Its title in French is "L'interprétation du Règlement n°1346/2000 relatif aux procédures d'insolvabilité, la fin des incertitudes ?" (The construction of Regulation n°1346/2000 on Insolvency Proceedings: the End of Uncertainties?). An English abstract should be made available by authors and posted soon.

[Although not strictly on private international law, we believe this might be of interest – especially in view of the superstar lineup]

CONFERENCE: CONTRACT DAMAGES: DOMESTIC AND INTERNATIONAL PERSPECTIVES

School of Law, University of Birmingham, 28-29 June 2007

The conference will bring together academics, practitioners, arbitrators and judges to discuss contract damages from a wide variety of perspectives. The first day of the conference is dedicated to the examination of damages in the context of the common law, and the second day will focus on international contract and commercial law instruments.

Speakers include:

• Professor Daniel Friedmann (Tel-Aviv)
• Professor Andrew Burrows (Oxford)
• Professor Stephen Smith (McGill)
• Professor Peter Jaffey (Brunel)
• Professor Anthony Ogus (Manchester)
• Professor Stephen Waddams (Toronto)
• Professor David McLauchlan (VUW)
• Professor Charles Proctor (Bird & Bird)
• Dr Harvey McGregor QC (Hailsham Chambers)
• Mr Adam Kramer (3 Verulam Buildings)
• Mr Ralph Cunnington (Birmingham)
• Professor Ingeborg Schwenzer ( Basel)
• Professor Michael Joachim Bonnell (Rome)
• Professor Ole Lando (Copenhagen)
• Professor Alastair Mullis (UEA)
• Professor Jan Ramberg (Stockholm)
• Professor Alexander Komarov (Moscow)
• Professor Franco Ferrari (Verona)
• Professor Michael Bridge (UCL)
• Professor Michael Furmston ( Bristol)

The conference will be held in the Business School at the University of Birmingham. There will be a conference dinner taking place at the Birmingham Botanical Gardens. Conference fee (including conference pack, buffet lunch, and drinks reception):

• Standard Rate (incl CPD): £200 two day package; £120 one day package
• Academic Rate: £130 two day package; £80 one day package
• Student Rate: £90 two day package; £55 one day package

Conference dinner tickets will cost £40 each. The event has been accredited for CPD (10.5 hours) by the Law Society and the Bar Council.

See the Conference Homepage for more information, online booking, and information on the sponsors. 

Jonathan Fitchen (University of Wales Aberystwyth) has published an article in the new edition of the Maastricht Journal of European and Comparative Law on “Allocating jurisdiction in Private Competition Law Claims Within the EU” (Maastricht J. 2006, 13(4), 381-401). Here’s the abstract:

Subscription information can be found here (there is a substantial discount for students). You can also obtain a single issue of the Journal for EUR 25.