How Litigation Imports Foreign Regulation

Guest Post by Diego A. Zambrano, Assistant Professor of Law, Stanford Law School

For years now, the concept of a “Brussels Effect” on global companies has become widely accepted. A simple version of the story goes as follows: the European Union sets global standards across a range of areas simply by virtue of its large market size and willingness to construct systematic regulatory regimes. That is true, for instance, in technology where European privacy regulations force American companies (including Facebook, Google, and Apple) to comply worldwide, lest they segment their markets. As Anu Bradford has expertly argued, it is also true in environmental protection, food safety, antitrust, and other areas. When companies decide to comply with European regulations across markets, the European Union effectively “exports” its regulatory regimes abroad, even to the United States.

In a forthcoming article, How Litigation Imports Foreign Regulation, I argue that foreign regulators not only shape the behavior of American companies—they also influence American litigation. From the French Ministry of Health to the Japanese Fair Trade Commission and the European Commission, I uncover how foreign agencies can have a profound impact on U.S. litigation. In this sense, the “Brussels Effect” is a subset of broader foreign regulatory influence on the American legal system.

European and International Civil Procedural Law: Some views on new editions of two leading German textbooks

For German-speaking conflict of law friends, especially those with a strong interest in its procedural perspective (and this seems to apply to almost all of them by now, I guess), the year 2021 has begun beautifully, as far as academic publications are concerned. Two fantastic textbooks were released, one on European civil procedural law, and one on international civil procedural law:

After more than ten years the second edition of Burkhard Hess’s 2nd edition of  his textbook on „Europäisches Zivilprozessrecht“ is now on the table, 1026 pages, a plus of nearly 300 pages and now part of the renowned series „Ius Communitatis“ by DeGruyter. It is a fascinating account of the foundations („Grundlegung“, Part 1, pp. 3 – 311) of European civil procedure as well as a sharp analysis of the instruments of EU law („Europäisches internationales Zivilprozessrecht“, Part 2, pp. 313 – 782). Part 3 focuses on the interplay between autonomous and European procedural law (pp. 783 – 976). Extensive tables of the cases by the ECJ and the ECtHR as well as a large subject index help to access directly the points in question. The foreword rightly points out that European civil procedural law has reached a new phase. Whereas 10 years ago, the execution of the agenda under the then still new competency in (now) Article 81 TFEU was at issue, today enthusiasm and speed have diminished. Indeed, the ECJ had to, and still has to, defend „the fundamental principles of EU law, namely mutual trust and mutual recognition, against populist attacks and growing breaks of taboos by right-wing populist governments in several Member States“ (Foreword, p. 1, translation here and all following ones by myself; see also pp. 93 et seq. on the struggle for securing independence of the national judge in Hungary and Poland as a matter of the EU‘s fundamental values, Article 2 TEU). At the same time, the EU legislator and the ECJ had shown tendencies towards overstreching the legitimatory potential of the principle of mutual trust before the EU returned to „recognition with open eyes“ (as is further spelled out at para. 3.34, at p. 119), as opposed to blind trust – tendencies that worried many observers in the interest of the rule of law and a convincing balancing of the freedom of movement for judgments and other juridical acts. The overall positive view by Hess on the EU’s dynamic patterns of judicial cooperation in civil matters, combined with the admirable clarity and comprehensiveness of his textbook, will certainly contribute considerably to address these challenges.

Equally admirable for its clarity and comprehensiveness is Haimo Schack’s 8th edition of his textbook on „Internationales Zivilverfahrensrecht“, including international insolvency and international arbitration, 646 pp., now elevated from the „short textbook series“ to the „large textbook series“ at C.H.Beck. The first part addresses foundations of the subject (pp. 1 – 68), the second part describes the limits of adjudicatory authority under public international law (pp. 69 – 90), the third part analyses all international aspects of the main proceedings (pp. 91 – 334), the fourth part recognition and enforcement (pp. 335 – 427), the fifth and sixth part deal with insolvency (pp. 428 – 472) and arbitration (pp. 473 – 544). Again, an extensive table of cases and a subject index are offered as valuable help to the user. Schack is known for rather sceptical positions when it comes to the narrative of mutual trust. In his sharp analysis of the foundations of international procedural law, he very aptly states that the principle of equality („Gleichheit“) is of fundamental relevance, including the assumption of a principal equivalence of the adminstrations of justice by foreign states, which allows trust in and integration of foreign judicial acts and foreign laws into one’s own administration of justice: „Auf die Anwendung eigenen Rechts und die Durchführung eines Verfahrens im Inland kann man verzichten, weil und soweit man darauf vertraut, dass das ausländische Recht bzw. Verfahren dem inländischen äquivalent ist“ (We may waive the application of our own law and domestic proceedings because and as far as we trust in the foreign law and the foreign proceedings are equivalent to one’s own, para. 39, at p. 12) – a fundamental insight based, inter alia, on conceptual thinking by Alois Mittermaier in the earlier parts of the 19th century (AcP 14 [1831], pp. 84 et seq., at pp. 95, justifying recognition of foreign judgments by the assumption that the foreign judge should, in principle, be considered „as honest and learned as one’s own“), but of course also on Friedrich Carl v. Sagigny, which I allowed myself to further substantiate and transcend elsewhere to the finding: to trust or not to trust – that is the question of private international law (M. Weller, RdC, forthcoming). In Schack’s view, „the ambitious and radical projects“ of the EU in this respect „fail to meet with reality“ (para. 126, at p. 50). Equally sceptical are his views on the HCCH 2019 Judgments Convention („Blütenträume“, para. 141, at p. 57, in translation something like „daydreams“).

Perhaps, the truth lies somewhere in the middle, namely in a solid „trust management“, as I tried to unfold elsewhere.

European Parliament Resolution on corporate due diligence and corporate accountability

Our blog has reported earlier on the Proposal and Report by the Committee on Legal Affairs of the European Parliament for a Resolution on corporate due diligence and corporate accountability. That proposal contained recommendations to amend the EU Regulations Brussels Ia (1215/2015) and  Rome II (864/2007). The proposals were discussed and commented on by Jan von Hein, Chris Tomale, Giesela RühlEduardo Álvarez-Armas and Geert van Calster

On 10 March 2021 the European Parliament adopted the Resolution with a large majority. However, the annexes proposing to amend the Brussels Ia and Rome II Regulations did not survive. The Resolution calls upon the European Commission to draw up a directive to ensure that undertakings active in the EU respect human rights and the environment and that they operate good governance. The European Commission has already indicated that it will work on this.

Even if the private international law instruments are not amended, the Resolution touches private international law in several ways.

*  It specifies that the “Member States shall ensure that relevant provisions of this Directive are considered overriding mandatory provisions in line with Article 16 of Regulation (EC) No 864/2007” (Art. 20). It is a bit strange that this is left to national law and not made an overriding mandatory provision of EU law in line with the CJEU’s Ingmar judgment (on the protection of commercial agents – also a Directive). Perhaps the legislator decides otherwise.


University of Bologna Summer School on Transnational Jurisdiction

The Department of Juridical Sciences of the University of Bologna, Ravenna Campus, has organized a Summer School on Transnational Jurisdiction: Current Issues In Civil And Commercial Matters, to be held in Ravenna (and online), on July 19-23, 2021.

The Faculty of the Summer School is composed of experts from different jurisdictions, focusing on several aspects of private international and procedural law. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of International civil procedure. The lectures, if the conditions will make it possible, will be held in a blended way, both
in presence and online.

Virtual Conference: Children’s Right to Information in Cross-border Civil Proceedings, 17-18 June 2021

The European Association for Family and Succession Law is organizing an international Conference on Minor’s Right to information in EU civil cases: Improving children’s right to information in cross-border civil cases.

The online Conference will take place via Zoom on Thursday, 17th June 2021 (3.00-6.00 pm CEST) and on Friday, 18th June 2021 (10.00 am-6.00 pm CEST). Here is the full programme of the event. Participation is free, online registration is necessary to receive via email the link to the Zoom meeting. The link will be sent shortly before the conference.

The online Conference will present the main results of the EU co-funded research project “MiRI” (“Minor’s Right to Information in civil actions – Improving children’s right to information in cross-border civil cases”, Justice Programme 2014-2020, JUST-JCOO-AG-2018, GA 831608).

Webinars on the International Commission on Civil Status Base of International Cooperation in the Field of Civil Status – 1, 8 and 15 June 2021 at 9 am (Brasilia time)

The Latin American Section of the Société de législation comparée, together with the Institute of Public Law of Brasilia, is organizing a series of webinars on the International Commission on Civil Status (ICCS, in French Commission internationale de l’état civil (CIEC)). The webinars will take place on 1, 8 and 15 June 2021 at 9 am (Brasilia time), 2 pm (CEST time) in English.


1st June – Presentation of the International Commission on Civil Status (ICCS)

Opening: Pr. Francisco Schertel – Dean of the Law Faculty, IDP and Pr. Maria Rosa Loula – Professor at IDP

Introduction: Mrs. Jeannine Dennewald – President of the ICCS

Developments: Mr. Nicolas Nord – Secretary General of the ICCS and Ms. Camille Reitzer – Deputy Secretary General of the ICCS