Building on the very successful Journal of Private International Law conferences in Aberdeen (2005), Birmingham (2007), New York (2009), and Milan (2011) the 5th Conference of the Journal will take place in Madrid on 12-13 September 2013. The organization of the Conference is shared by the Law Faculties of Universidad Autónoma de Madrid and Universidad Complutense. The Programme is reproduced in full below. All of the details on venue, accommodation and registration can be found on the conference website.

The Programme

Thursday 12^th  September 2013

9.00 – 9.30 Registration

9.30 – 10.00 Welcome session (J. Harris + local judicial or academic authorities)

10.00 – 11.30 Panels 

Group 1 – MINORS & NAME

Group 2 – CODIFICATION

Group 3 – TORTS – JURISDICTION

Group 4 – ARBITRATION

11.30 – 12.00 Coffee Break

12.00 – 13.30 Panels

Group 5 – MARRIAGE & MATRIMONIAL PROPERTY

Group 6 – GENERAL PIL

Group 7 – RECOGNITION AND ENFORCEMENT IN THE EU

Group 8 – COMPANY LAW & FINANCE

13.30 – 15.00 Lunch (a short guided visit to “La Corrala” will be available at 14.30)

15.00 – 16.30 Panels

Group 9 – SUCCESSION

Group 10 – CONTRACTS

Group 11 – BRUSSELS I RECAST – JURISDICTION

Group 12 – JURISDICTION & ENFORCEMENT

16.30 – 17.00 Coffee Break

17.00 – 18.30 Panels

Group 13 – TORTS- APPLICABLE LAW

Group 14 – INSOLVENCY

Group 15 – SALES/CESL

20.30 Conference Dinner in Pabellón de los Jardines de Cecilio Rodríguez (El Retiro)         

Friday 13^th  September 2013

9.30 -11.00  Plenary session I RECOGNITION & ENFORCEMENT

Chair: Francisco J. Garcimartín Alférez

11.15 -11.45  Coffee break

11.45 – 13.15  Plenary session II CONTRACTS & TORTS

Chair: Pedro A. De Miguel Asensio

13.30 – 15.00  Lunch

15.00 -16.30  Plenary session III GLOBAL LITIGATION

Chair: Paul Beaumont

16.30 -17.00 Coffee Break

17.00 -18.00 Conference by A.G. Pedro Cruz Villalón

18.00 – 18.30  Concluding remarks and closing words by P. Beaumont

Last week, the French Supreme Court for private and criminal matters (Cour de cassation) set aside three series of enforcement measures carried out by NML Capital Ltd against the Republic of Argentina in three judgments dated 28 March 2013 (see here, here and here).

Readers will recall that NML Capital Ltd was the beneficial owner of bonds issued by Argentina in year 2000. As the relevant financial contracts contained a clause granting jurisdiction to New York courts, the creditor sued Argentina before a U.S. federal court, and obtained in 2006 a judgment for USD 284 million. In the summer 2009, NML Capital initiated enforcement proceedings in Europe.

The contracts also contained a waiver of immunity from enforcement. NML Capital first attached assets covered by diplomatic immunity. In a judgment of 28 September 2011, the Cour de cassation ruled that the waiver did not cover diplomatic assets. This was because, the Court explained, diplomatic immunity is governed by special rules which require a waiver to be both express and specific, i.e. provide specifically that it covers diplomatic assets. As the Court was aware that the 1961 Vienna Convention only provides that waiver of diplomatic immunity should be express, the Court ruled that the special rules governing diplomatic immunity were to be found in customary international law.

This time, NML Capital focused on non diplomatic assets. It attached monies owed by French companies to Argentina through their local branches (and could thus be attached from France). The assets were public, however: they were tax and social security claims. But, at first sight, they fell within the scope of the waiver. Indeed, I understand that the Republic of Argentina had waived immunity “for the Republic, or any of its revenues, assets or property”.

Requirements for Waiving Sovereign Immunity

International law is changing really fast in Paris, however. The Cour de cassation decided to extend its new doctrine that waiver of immunity of enforcement should be both express and specific to public assets. The new rule is that waivers should specifically mention the assets or categories of assets to which they apply. As a consequence, as the waiver did not specifically mention, the Court found, tax and social revenues, it did not apply to them.

The judgments also explain that the new rule originates from customary public international law, as reflected in the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. This is clearly the most creative part of the judgments.

Article 19 of the 2004 Convention reads:

Article 19
State immunity from post-judgment measures of constraint
No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or

I am not sure where the requirement that the waiver be asset specific appears.

Furthermore, when Germany argued that Article 19 reflected customary international law in the Jurisdictional Immunities of the State case, the International Court of Justice responded:

117. When the United Nations Convention was being drafted, these provisions gave rise to long and difficult discussions. The Court considers that it is unnecessary for purposes of the present case for it to decide whether all aspects of Article 19 reflect current customary international law.

Human Rights

Interestingly enough, the Cour de cassation also refers to several judgments of the European Court of Human Rights which held that rules on sovereign immunities necessarily comply with the ECHR as long as they reflect international law.

In other words, the French court recognizes that should it grant a wider immunity to foreign states than the one recognized by international law, it might infringe the European Convention. The ECHR also considers that the 2004 UN Convention reflects customary international law, but would it read Article 19 as liberally as the Cour de cassation?

Henning Grosse Ruse-Khan (Max Planck Institute for Intellectual Property & Competition Law) has posted A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health on SSRN.

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

Dr. Apostolos Anthimos is attorney at law at the Thessaloniki Bar, Greece. He holds a Ph.D. in International Civil Litigation and is a visiting lecturer at the International Hellenic University.

Two recent Court of Appeal rulings in Greece have demonstrated the significance of the public policy clause in international litigation and arbitration. Both judgments are dealing with the problem of recognition and enforcement of ”excessive” costs awarded by English courts and arbitration panels. The issue has been brought several times before Greek courts within the last decade. What follows, is a brief presentation of the findings, and some concluding remarks of the author.

I.a. In the first case, the Corfu CoA refused to grant enforceability to a costs order and a default costs certificate of the York County Court on the grounds that Greek courts wouldn’t have imposed such an excessive amount as costs of the proceedings for a similar case in Greece. In particular, the court found that, granting costs of more than £ 80,000 for a case, where the amount in dispute was £ 17,000, contravenes Greek public policy perceptions. Thus, the amount of £ 45,000 + 38,251.47 was considered as manifestly disproportionate and excessive for the case at hand. Consequently, the CoA granted exequatur for the remaining sums, and refused recognition for the above costs, which could not be tolerated by a court of law in Greece.

I.b. In the second case, the Piraeus CoA recognized an English arbitral award despite allegations made by the appellant, that the award’s order for costs contravened public policy. In this case the amount in dispute was in the altitude of nearly $ 3 million, whereas the costs granted did not exceed £ 100,000. The court applied the same rule as in the previous case, and found that the costs were not disproportionate to the case at stake.

II. As already mentioned above, those decisions are the last part on a sequence of judgments since 2005. Free circulation of English judgments is generally guaranteed in Greece; the problem starts when English creditors seek to enforce the pertinent costs orders. For Greek legal views, it is sheer impossible that costs exceed the actual amount in dispute in the main proceedings. This was reason enough for the Supreme Court (Areios Pagos = AP) to establish the doctrine of public policy violation, on the occasion of an appeal against a judgment of the Athens CoA back in 2006 [AP 1829/2006, Private Law Chronicles 2007, p. 635 et seq.]. The Supreme Court held, that granting enforceability to similar orders would violate the principle of proportionality, which is embedded both in the Greek Constitution and the ECHR. At the same time, it emphasized that the excessive character of costs impedes access to Justice for Greek citizens, invoking again provisions from the Greek Constitution (Art. 20.1) and the Human Rights Convention (Art. 6.1). The reasoning of the Supreme Court is followed by later case law: In an earlier judgment of the Corfu CoA [Nr. 193/2007, Legal Tribunal 2009, p. 557 et seq.] the court reiterated the line of argumentation stated by the Supreme Court, and refused to grant exequatur (again) to an English order for costs. Two years later, the Larissa CoA [Nr. 484/2011, unreported], followed the opposite direction, based on the fact that costs were far lower than the amount in dispute.

In regards to foreign arbitral awards, mention needs to be made to two earlier Supreme Court judgments, both of which granted enforceability and at the same time rejected the opposite grounds for refusal on the basis of Art. V 2 b NYC. In the first case [AP 1066/2007, unreported], the Supreme Court found no violation of public policy by recognizing an English award, which awarded costs equivalent to half of the subject matter. A later ruling [AP 2273/2009, Civil Law Review 2010, p. 1273 et seq.] reached the same result, by making reference to the previous exchange of bill of costs particulars, for which none of the parties expressed any complaints during the hearing of the case before the Panel.

In conclusion, it is obvious that Greek courts are showing reservation towards those foreign costs orders, which are perceived as excessive according to domestic legal standards. This stance is not unique, taking into account pertinent case law reported in France and Argentina [for the former, see Cour de Cassation 1re Chambre civil, 16.3.1999, Clunet 1999, p. 773; for the latter see Kronke / Nacimento / Otto / Port (ed.), Recognition and enforcement of foreign arbitral awards – A global commentary on the New York Convention (2010), p. 397, note 245]. The decisive element in the courts’ view is the interrelation between the subject matter and the costs: If the latter is higher than the former, no expectations of recognition and enforcement should be nourished. If however the latter is lower than the former, public policy considerations do not usually prevail.

Final point: As evidenced by the case law above, it is clear that the Greek jurisprudence is applying the same criteria for foreign judgments and arbitral awards alike, irrespective of their country of origin. As far as the latter is concerned, no objections could or should be raised. However, making absolute no distinction between foreign judgments emanating from EU – Member States and non-Member States courts seems to defy the recent vivid discussion that predominated during the Brussels I recast preparation phase (2009-2012). Fact is, that public policy survived in the European context, and will continue playing a significant role in the new era (Regulation 1215/2012). Still, what is missing from Greek case law is an effort to somehow soften the intensity of public policy control in the EU landscape. Whatever the reason might be, a clear conclusion may be reached: Greek case law gives back to public policy a Raison d’être, demonstrating the importance of its existence, even when judicial cooperation and free circulation of judgments are the rules of the game.

Recently, the March/April issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

• Miriam Pohl: The Recast of Brussels I – striking the balance between trust and control

Roughly two years after the presentation of the Commission’s proposal, the recast of the Brussels I Regulation was adopted on 6 December 2012. As from 10 January 2015, the recast will replace Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article presents the most important changes.

•  Michael Coester: The Influence of EU-Law on German Conflict Rules for Registered Partnerships

Since the enactment of the German conflict rules on registered partnerships (Art. 17b EGBGB) in 2001 significant changes have taken place. The European Union is progressively building a system of private international law rules in family matters, and the constitutional as well as the human rights approach towards registered partnerships today focuses more on the protection of same-sex relationships against unjustified discrimination rather than on the protection of marriage. As a result, some elements of Art. 17b EGBGB are already today (or will be in the next future) governed by Community law instead of national law (alimony, inheritance, property issues), and basic principles of common private international law become visible. This article explores in detail (1) the scope of EU-regulations with regard to registered partnerships, (2) the convergence of the remaining text of Art. 17b EGBGB with emerging techniques and principles of Community law and (3) its conformity with overriding principles of constitutional, EU- or human rights law. It is suggested that the existing German rules of private international law on registered partnerships need an overall revision in order to bring it in line with existing constitutional law and emerging European Community law. To this end, the author submits concrete text proposals for all areas of German Private International Law on registered partnerships which are still subject to national law.

•  Eric Wagner/Marius E. Mann: The Merchant Status of Foreign Parties in Civil Proceedings

According to section 95 Judiciary Act (Gerichtsverfassungsgesetz), the functional jurisdiction of the court seized of the matter depends on the merchant status of the parties to the proceedings. This can lead to difficulties in the case of disputes in international business dealings. For example, if a party established abroad is involved, the question arises as to what country’s laws determine whether this party has merchant status. So far there is no Supreme Court case law on this question. The views taken by the lower courts and in legal literature vary. This article offers a view of the status of the discussion and explains why, when it comes to determining, within the scope of section 95 Judiciary Act, whether merchant status is present – also in the case of foreign parties – only lex fori can be decisive.

•  Peter-Andreas Brand: Cross-border consumer protection within the EU – Inconsistencies and contradictions in the European System of Conflict of Law Rules and Procedural Law

The endeavours throughout the European Union to create a harmonized European Procedural Law, in particular in the context of jurisdiction and recognition and enforcement, and also the process of harmonisation of the Conflict of Law Rules within the EU have realised the importance of cross-border consumer protection. Both the Rome I Regulation and Regulation No. 44/2001 on Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters contain specific provisions for the protection of consumers. It is the aim of this article to consider the practical implications of the most important provisions of the EU-Conflict of Law Rules and the Procedural Rules with respect to the applicable law, jurisdiction and the exequator proceedings. Furthermore, current inconsistencies and sometimes contradicting intentions in European legislation shall be highlighted.

•  Christian Heinze: Keine Zustellung durch Aufgabe zur Post im Anwendungsbereich der Europäischen Zustellungsverordnung – the English abstract reads as follows:

The rules for judicial service in some EU Member States allow service of documents on parties domiciled abroad by a form of “fictitious” service within the jurisdiction. Under these rules, service is deemed to take effect at the moment when a copy of the document is lodged with a national authority, placed in the court’s case file or at the time when it is sent abroad for service, irrespective of the time when the recipient actually receives the document, if the foreign party has failed to appoint a representative in the forum state who is authorised to accept service. The following case note discusses two judgments of the German Bundesgerichtshof and the Court of Justice of the European Union (Case C-325/11 – Alder) which hold that this practice is, for inner-EU cases, incompatible with the European Service Regulation (EC) No 1393/2007 (ECJ) and German domestic law (Bundesgerichtshof). The Court of Justice has rightly coined an autonomous definition of service of a judicial document between Member States for the purposes of Article 1(1) of the Service Regulation. As a consequence, the Service Regulation provides, with the exceptions of Article 1(2) and Recital 8, for an exhaustive list of the means of transmission of judicial documents. The Service Regulation therefore excludes the application of national rules on fictitious service which would deprive the rules of the Service Regulation, in particular the right of the person to be served to benefit from actual and effective receipt, of all practical effect.

•   Christoph Thole: Verbrauchergerichtsstand aufgrund schlüssiger Behauptung für eine Kapitalanlegerklage gegen die Hausbank des Anlagefonds? – the English abstract reads as follows:

In its judgment, the German Federal Supreme Court held that in a case brought by a consumer against the house bank of a Ponzi scheme in which the consumer had invested money, the courts in his home country enjoy jurisdiction under Art. 15, 16 Brussels I-Regulation. The Austrian bank was considered to have committed itself to the plaintiff to transfer the money paid in by the consumer into the bank’s own account in Germany to the Austrian bank account of the Ponzi scheme. The defendant was thus held to have entered into a contractual relationship with the consumer. Christoph Thole argues the judgment to be feasible, however, the ruling must not be generalized too easily. Furthermore, he emphasizes that the burden of demonstration with respect to jurisdictional issues has a Community law dimension rather than being solely based on national law.

•  Stefan Arnold: On the scope of the jurisdiction over consumer contracts and on the nature of the doctrine of culpa in contrahendo and actions based on an infringements of sec. 32 German Banking Act (Kreditwesengesetz)

According to the Federal Court of Justice (Bundesgerichtshof), sec. 13 and 14 Lugano Convention 1988 give German courts jurisdiction in proceedings brought by German consumers concerning investments in Switzerland. Actions based on an infringement of § 32 German Banking Act (Kreditwesengesetz) and on culpa in contrahendo (here: breach of precontractual duties of disclosure) must be considered as “proceedings concerning a contract” in the sense of sec. 13 Lugano Convention 1988. The jurisdiction of German courts does not depend on the consumer’s material vulnerability. It is equally irrelevant whether the consumer took the initiative as regards the investment and whether the “specific invitation” addressed to the consumer did not constitute a legally binding offer but merely an invitatio ad offerendum. Thus, the Bundesgerichtshof implicitly argues for a formal analysis in matters of the jurisdiction over consumer contracts and acknowledges the crucial importance of legal certainty in International Procedural Law. The judgment is also relevant for the interpretation of sec. 15 Brussels I Regulation/Lugano Convention 2007.

•   Florian Eichel: Judicial power and international jurisdiction for the enforcement of a judgment for a specific act (§§ 887 et seq. German Code of Civil Procedure) in case of a foreign place of performance

The German Federal Court of Justice (Bundesgerichtshof – BGH) held that German courts have international jurisdiction to take measures for enforcing a judgment for a specific act even when the act has to be performed abroad. This essay agrees with the outcome of the decision, discusses questions of state sovereignty and suggests that personal jurisdiction should have been derived from the Brussels I-Regulation (EC) No. 44/2001 as an unwritten annex-competence.

•  Björn Laukemann: Actions for separate satisfaction and the European jurisdictional regime

In the case ERSTE Bank, the ECJ had to decide on the applicability ratione temporis of Article 5 of the European Insolvency Regulation (EIR) in the context of Hungary’s accession to the European Union. Thereby, the Court left out the contentious issue whether international jurisdiction over actions for the determination of collateral securities on assets belonging to the debtor’s estate is to be determined by the Brussels I regime or rather the EIR. Exemplified by actions for separate satisfaction, this article will focus on the jurisdictional delimitation between both Regulations which is now, concerning insolvency related actions in general, regulated by Article 3a of the EU-Commission’s proposal for a recast of the EIR. The article points out that the criteria underlying the principle of vis attractiva concursus are not suitable for actions for separate satisfaction and unfolds the consequences on the dispute at issue.

•  Klaus Bartels: Interim regulations on corporate headquarters in Europe

The annotated judgment of the OLG Nürnberg deals with questions of cross-border transfer of corporate headquarters. The concrete case shows a moving-in-concept of a Société responsabilité limitée heading from Luxembourg to Germany. The immigration had been planned as a change into a German GmbH with fitting new firm and varied statute, but with affirming its outgoing law-identity. Especially the formation of a new company like in “Vale Építési” wasn’t aimed. Though transfers like that are welcome in Luxembourg, the German Umwandlungsgesetz doesn’t accept immigrations of that kind. In the court’s opinion a request according to Article 267 (2) AEUV is not needed, for even a German duty (with European origin) to create and to offer immigration-friendly statutes wouldn’t help to have the aimed transfer. The court misses the prerequisites of the national Umwandlungsgesetz as well as of the regulations of EWIV, SE and SCE.

Nevertheless, concrete process history and the decision itself introduce to extensive problems of European cross-border transfer of corporate headquarters as they occur at the present and (up to now) without adjusting help of the European Union. This article tries to demonstrate the interim rules and their method intricacies, caused by the conflict of national corporate law on the one hand and the European legal principles on the other. It furthermore offers support by introducing basic rules of intertemporal law.

•  Bernd Reinmüller/Alexander Bücken: Provokation eines inländischen Deliktsgerichtsstandes im Urheberrecht – the English abstract reads as follows:

This contribution deals with a decision by the French Cour de cassation (1ére civ. 25.3.2009 – ref. no. 08.14.119) on the admissibility of the provocation of domestic tort jurisdiction under copyright law at the application of Article 5.3 of the European Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. In conformity with German case law, the Cour de cassation distinguishes between an admissible test order through which domestic jurisdiction can be established and a manipulative subreption of jurisdiction which does not have the effect of establishing jurisdiction in accordance with the principles of good faith. Furthermore, the “mosaic theory” developed by the ECJ for press law offences is transferred to copyright law. Consequently, the tort jurisdiction established by an admissible provocation of jurisdiction is always restricted to the damage caused in the forum state.

•  Herbert Roth: Zur verbleibenden Bedeutung des deutsch-österreichischen Anerkennungs- und Vollstreckungsvertrags 1959 – the English abstract reads as follows:

The decision of the OGH addresses problems of foreign lis pendens and their impacts to domestic disputes. Subject matter of the judgment is a proceeding for the division of assets in accordance with Art. 81 et seqq. of the Austrian Marriage Act brought to Austrian Courts prior to the German counterpart. The OGH qualifies the Austrian proceeding for the division of assets as part of the matrimonial property regime and therefore lawfully applies the German-Austrian Convention on the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed on 6 June 1959. Pursuant to Art. 17 of this Convention the sole recourse to the Court shall not be sufficient to prevent proceedings abroad. Instead, the barrier effect depends on the pendency of the suit, which according to the Austrian and German Law requires the formal service of the complaint. In the present case the OGH therefore correctly refers not to the prior recourse to the Austrian Courts, but the formal service of the claim, which was effected by the German authorities earlier than the Austrian delivery. Therefore the Austrian Courts lawfully had to decline their international jurisdiction in favor of the German Courts.

•  Patrizia Levante: Der materielle ordre public bei der Anerkennung von ausländischen Scheidungsurteilen in der Schweiz – Blick auf die Rechtsprechung – the English abstract reads as follows:

In Switzerland, the question of recognition of foreign divorce judgments arises more and more often. In many international marriages, the divorce is filed and granted abroad. In these cases, the only task that remains to the Swiss courts is to examine whether the foreign divorce judgment can be recognized in Switzerland. This article discusses questions of Swiss substantive public policy (ordre public) in connection with the recognition of foreign divorce judgments. The first section of the article presents the relevant legal provisions. The second section gives an overview of the current jurisdiction of Swiss courts. With regard to the dissolution of marriage, the article highlights in particular, under which circumstances foreign extrajudicial divorces and repudiations can be recognized in Switzerland. Considering the recognition of the financial consequences of the divorce (spousal maintenance, matrimonial property, occupational pension fund), the article shows that the Swiss authorities have to look at the rationale behind a certain order (or lacking order) in the foreign judgment, and to examine whether an adequate financial compensation has been ordered. Regarding children, it is required that the competent authorities act ex officio and settle children’s issues (custody, visiting rights, child maintenance) in a coherent and united manner. In the process of recognizing a foreign judgment, the best interest of the child must be considered.

•  Gerhard Hohloch: Hans Stoll † (4.8.1926–8.11.2012)

• Konrad Duden:  „Leihmutterschaften“ – Abschlussveranstaltung der Jahresfachtagung des Bundesverbandes der Deutschen Standesbeamtinnen und Standesbeamten

•  Céline Camara: Cross-border successions within the EU – Report on a conference by the ERA

• Christel Mindach: Staatlicher Schadensersatz bei Verschleppung von Gerichtsverfahren und der Vollstreckung von Gerichtsentscheidungen

• Heinz-Peter Mansel: Beschlüsse der Sitzung der Ersten Kommission des Deutschen Rates für Internationales Privatrecht zur Reform des Ehe- und Lebenspartnerschaftsrechts am 9./10.11.2012 in Würzburg

As many of our readers know, we are anxiously awaiting the United States Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum.  Although the Supreme Court initially granted certiorari in Kiobel to decide the issue of corporate civil tort liability under the ATS, it subsequently orderd reargument on the broader question of “[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  Comments by the justices in the Kiobel oral arguments raise the possibility that the Court may require exhaustion of local remedies in ATS litigation.  Some believe it is likely that the Court will limit ATS litigation—perhaps substantially.  All of this raises an important question:  What will human rights litigation look like after Kiobel?  The Kiobel decision is unlikely to end ATS litigation in the federal courts, but it is likely that many post- Kiobel human rights claimants will consider alternative strategies.

A year ago, right after the first oral argument and before the reargument was ordered, Chris Whytock, Mike Ramsey, and I convened a group of private international law and public international law scholars and practitioners to examine the question of what might happen after Kiobel.  In particular, we were curious to see whether pleading ATS-like claims in state courts under state law was viable.  See here for one view.  The UC Irvine Law Review is about to go to press with the papers from that conference.  For those interested, here is a link to the issue’s introduction where we provide an overview of the papers.

Here is the abstract:

Litigation in domestic courts is only one of many ways to promote and protect international human rights, but it has received much attention from lawyers and scholars.  Attention has focused above all on litigation in the U.S. federal courts under the Alien Tort Statute (the “ATS”). However, plaintiffs are facing growing barriers to ATS human rights litigation in the U.S. federal courts, and it is likely that the Supreme Court’s upcoming decision in Kiobel v. Royal Dutch Petroleum Co. will further restrict this type of litigation — perhaps substantially.

This Essay provides an overview of the legal issues surrounding one possible alternative human rights litigation strategy: human rights litigation in U.S. state courts or under U.S. state law. It highlights both the attractions and the limits of this strategy, and it identifies the challenging legal issues that this strategy will raise for judges, lawyers and scholars, ranging from choice of law and extraterritoriality, to jurisdiction and federal preemption. This Essay also serves as the foreword to a symposium issue of the UC Irvine Law Review that contains articles by leading practitioners and scholars of human rights, international law, and conflict of laws providing in-depth analysis of these and other aspects of human rights litigation in state courts and under state law.

The first issue of French Journal du droit international (Clunet) for 2013 was just released. It contains two articles addressing issues of private international law and several casenotes. A full table of content is available here.

In the first article, Marie-Eve Pancrazi (University of Aix Marseille) explores the regime of Foreign Assets in International Insolvency (L’actif étranger du débiteur en procédure collective). The English abstract reads:

Bankruptcy law has always tried to be pragmatic. It never eludes difficulties likely to arise from the scattering of companies’ assets over several countries. Bankruptcy law takes up this challenge by proclaiming that domestic insolvency proceedings exercise their authority over all the debtor’s assets, urbi et orbi, as it were. But is not this posture rather vainglorious? One would be inclined to think so, when considering national sovereignties. And yet, this cautious attitude needs to be put in perspective, since it is not valid within Europe, and since, in any case, no reaction from foreign jurisdictions could eclipse the obligations which such authority implies for the debtor, the creditors and the bodies of the procedure.

The second article is an empirical study on exequatur in la Grande Region, i.e. Luxembourg and surrounding regions of France, Belgium and Germany. The study was conducted by a team of researchers of the university of Luxembourg who collected data on judgments rendered by courts of Arlon, Trier, Saarbrücken, Lorraine and Luxembourg.

The proposal to recast the Brussels I Regulation issued by the European Commission in December 2010 has launched a debate among European scholars and policy makers as to whether the exequatur procedure should be abolished within the European Union. While the European lawmaker has argued that the exequatur procedure is too costly, most scholars have responded that the public policy exception is a unique remedy against violations of human rights. Are the costs of the exequatur procedure really too high? This article contributes to this debate by offering an empirical analysis of the exequatur orders delivered by nine courts of four different member states based in the Grande Region surrounding Luxembourg.

With this work written in English (click here to access the document), Professor Zamora Cabot continues his already wide and prolific research on the Alien Tort Claims Act (hereinafter, ATCA) of the United States, and on its application. In this paper the author focuses on a decisive issue:  the question of extraterritoriality that is being discussed in the Kiobel case.  The author declares that the way this question is being presented -i.e., whether the United States is exceeding its competences vis-á-vis public international law from the point of view of extraterritoriality, related to imposition or legal imperialism- is completely wrong. The United States is not acting against the Law of Nations and the debate on this issue is actually unfounded. To support his opinion, after some previous considerations in the introductory Part of this work, Professor Zamora Cabot brings up several cases sustaining the aforementioned negative. Most specifically, in Section II, and just as an aide-mémoire, the author highlights three milestones in the field of international economic sanctions: Section 301 et seq. of the United States Trade Act of 1974 and its application, the Siberian Gas Pipeline case and the renowned Cuban Embargo case which comprises some important elements, such as the Helms-Burton Act. In his opinion, based on a long personal research, the opponents to the ATCA are trying to place it into a controversial and troubled field, taking advantage of the negative memory sparked off by the real conflicts of extraterritoriality, as exemplified by the U.S. international sanctions regime.

In Section III, the author, in line with the original interpretation made by the United States Court of Appeals for the Second Circuit in its seminal case Filártiga, argues that the cases on the application of the ATCA are based on special torts, for which the mechanics and approaches of Private international law do play a significant role. Evaluating the set of jurisdictional and legislative competences (jurisdiction to adjudicate and jurisdiction to prescribe) of the United States confronted with the Law of Nations, and regarding its practice, the author declares that those competences can be exercised without problems, just as the United States courts are repeatedly reflecting in their jurisprudence while deciding other kinds of international tort cases. This does not imply denying the special features of the ATCA cases, mainly defined by two facts: first, the need of contrasting the consistency with the Jus Cogens of the conducts underlying these cases,to confirm if the reservation of jurisdiction to adjudicate in favor of the federal courts as dictated by the ATCA is justified; second, the possibility for the federal courts to base their decisions on federal common law, to the extent that it has integrated the mandates of Public international law.But it is worth noting, in any case, that these special torts do not lead to exclusion, but to the opportunity to make Private international law and Public international law to cooperate, which always ennobles both of them.

Finally, in Section IV, Professor Zamora Cabot concludes his research with this idea: if the United States Supreme Court decides in the Kiobel case against the brilliant jurisprudence generated by the ATCA in that country, which is in favor of the Human Rights and which constitutes a magnificent example for the international community, the fight to protect them will continue. And it will do so before the State Courts inside the United States, as well as before many other courts across the length and breadth of the globe. Actually, the international community is becoming more sensitive and mindful, and numerous initiatives are being taken, especially regarding cases based on human rights violations committed by multinational corporations.

This monograph written by Dr. Victoria  Camarero Suárez and published by Tirant lo Blanch deals with one of the key issues of the modern conflict of laws: the multicultural society. The main thesis of the author is that the use of the full veil should not be considered as a challenge for the values and principles of democratic societies, particularly of the Spanish society, but as an ideal opportunity to demonstrate a real commitment with those principles and values.  The extensive use of the comparative law method and the thorough review of the most relevant bibliography must be highlighted; also, the exhaustive analysis of the case law of different European states’ courts and of the European Court of Human Rights. Particular attention has been paid to crucial concepts such as  public policy and the so-called “margin of appreciation”; in addition, other significant topics related to nationality and migration are dealt with, again through remarkable cases, like the controversial decision made by the Council of State of France (Conseil d’état) as regards the Silmi case. The balance and technical rigor with which the author has developed her research make of the monograph a pioneer study in the Spanish doctrine and abroad, at a time when the usual answers to sensitive legal issues having a great impact on minorities are based on ideological grounds and dogmatism.

Click here to access the table of contents.

Dr. Victoria Camarero is professor in the University Jaume I, Castellón (Spain).

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The third issue of 2012 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released.  It features three articles and four comments.

In the first article, Claudio Consolo, Professor of Law at the University of Padua, discusses the new proceedings for interim relief (with full cognizance) for the ascertainment of the effectiveness of foreign judgments in Italy after Legislative Decree No. 150/2011 (“Il nuovo rito sommario (a cognizione piena) per il giudizio di accertamento dell’efficacia delle sentenze straniere in Italia dopo il d.lgs. n. 150/2011”; in Italian).

In the second article, Costanza Honorati, Professor of Law at the University of Milano-Bicocca, offers a critical appraisal of provisional measures under the proposal for a recast of the Brussels I Regulation (“Provisional Measures and the Recast of Brussels I Regulation: A Missed Opportunity for a Better Ruling”; in English).

In the third article, Theodor Schilling, Professor of Law at the Humboldt University of Berlin, discusses the enforcement of foreign judgments in the case-law of the European Court of Human Rights (“The Enforcement of Foreign Judgments in the Jurisprudence of the European Court of Human Rights”; in English).

In addition to these articles, the following comments are also featured:

• Lorenzo Ascanio (Adjunct Professor at the University of Macerata), “Equivoci linguistici e insidie interpretative sul ripudio in Marocco” (Linguistic Ambiguities and Interpretative Pitfalls on Repudiation in Morocco; in Italian);
• Lidia Sandrini (Researcher at the University of Milan), “La tutela del creditore in pendenza del procedimento di exequatur nel regolamento Bruxelles I” (Creditor’s Protection Pending the Exequatur Proceedings under the Brussels I Regulation; in Italian);
• Giuseppe Serranò (Research Fellow at the University of Milano-Bicocca), “Considerazioni in merito alla sentenza della Corte internazionale di giustizia nel caso relativo alle immunità giurisdizionali dello Stato” (Remarks on the Judgment of the International Court of Justice on Jurisdictional Immunities of the State; in Italian);
• Cristina M. Mariottini (Senior Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), “Statutory Ceilings on Damages under the Rome II Regulation: Shifting Boundaries in the Traditional Dichotomy between Substance and Procedure?” (in English).

Indexes and archives of the RDIPP since its establishment (1965) are available on the website of the Department of Italian and Supranational Public Law of the University of Milan.