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Gentle Reminder: German Conference on Cross-Border Enforcement in the EU (“IC²BE”)
As previously announced on this blog, the Albert-Ludwig-University of Freiburg (Germany) will host, on 10–11 October 2019, the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover) Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration which is still possible here.
Out now: Hannah L. Buxbaum, Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict
The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).
Here is an overview kindly provided by the author:
The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.
The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.
The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.
Highly recommended!
More information can be found here.
Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2019: Abstracts
The second issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:
Adrian Briggs, Professor at Oxford University, Brexit and Private International Law: An English Perspective (in English)
The effect of Brexit on private international law in England will depend on the precise terms on which the separation is made. However, if no comprehensive withdrawal agreement is concluded and adopted, the result will be that private international law in the United Kingdom will revert to its original common law structure. This will make the law and practice of dispute resolution more effective in some respects, and more problematic in others. While it is regrettable that so much time and labour has to be spent on planning for a future which the politicians are incapable of defining, it does allow the distinctions between common law legal thinking, and European legal principles, in the field of private international law to be compared and understood more clearly than they have been for many years.
Burkhard Hess, Director of the Max Planck Institute Luxembourg for Procedural Law, Protecting Privacy by Cross-Border Injunction (in English)
Injunctive relief is of paramount importance in the protection of privacy, especially in the context of the Internet. In the cross-border setting, injunctions entail specific problems: on the one hand, jurisdiction may lie with many courts – often worldwide due to the ubiquity of the Internet. On the other hand, injunctions operate with an extraterritorial effect, ordering or prohibiting conduct outside of the State where the court issuing the order is located. Cross-border injunctive relief does not only raise issues of jurisdiction and territorial scope: in fact, additional problems relate to its enforcement. Furthermore, the need may arise to adapt the injunction to an equivalent measure in the State of enforcement. This paper addresses the problems of cross-border injunctive relief from the perspectives of jurisdiction and territorial scope, as well as of recognition and enforcement. While actions for damages and for injunctive relief are regulated in similar ways, the Author of this paper demonstrates that the specific circumstances and necessities that characterize injunctive relief warrant additional and specific solutions.
Chiara E. Tuo, Associate Professor at the University of Genoa, The Consequences of Brexit for Recognition and Enforcement of Judgments in Civil and Commercial Matters: Some Remarks (in English)
This article aims at addressing some questions regarding the impact of Brexit on recognition and enforcement of judgments in civil and commercial matters with a view to investigating the rules applicable, first, in the case that Brexit occurs without any withdrawal agreement (“hard Brexit”) and, second, regardless of whether such an agreement will be actually entered into, in the context of a future and renewed judicial cooperation relationship between the EU and UK. To this end and in relation to the first part of the analysis, the relevant passages of both the EU Commission’s guidelines and UK statutory instruments dealing with the issue of recognition and enforcement of judgments are taken into exam and compared the ones with the others in order to assess the different extent to which they provide for the continuous post-Brexit application of the existing EU instruments. On the other hand, and in relation to the second part of the article, the options currently available for a future EU-UK cooperation are considered with the purpose of shedding some light on their respective main advantages and disadvantages.
In addition to the foregoing, the following comments are featured:
Cinzia Peraro, Post-Doctoral Fellow at the University of Verona, L’istituto della kafala quale presupposto per il ricongiungimento familiar con il cittadino europeo: la sentenza della Corte di giustizia nel caso S.M. c. Entry Clearance Officer (Kafala as a Prerequisite for Family Reunification with a European Citizen: The Judgment of the Court of Justice in S.M. v. Entry Clearance Officer; in Italian)
The family reunification of a European citizen and a foreign minor entrusted to him by kafala has been addressed by a recent judgment of the Grand Chamber of the Court of Justice on the notion of direct descendant pursuant to Directive 2004/38 concerning the free movement of Union citizens and their family members. The Italian judges have also dealt with the issue of the recognition of this institute, widespread in most Islamic countries, in a variety of situations, where the best interests of the child and the European courts’ decisions have been considered. Domestic jurisprudence appears to be in line with the interpretation given by the judges of Luxembourg, which nevertheless leaves the question of the unequal treatment between Italian citizens and third country nationals unresolved.
Mariangela La Manna, Post-Doctoral Fellow at the Università Cattolica del Sacro Cuore, The ECHR Grand Chamber’s Judgment in the Naït-Liman Case: An Unnecessary Clarification of the Reach of Forum Necessitatis Juridsdiction? (in English)
The Grand Chamber judgment in the Naït-Liman v. Switzerland case is certainly a much anticipated one. Its outcome had, however, long been foreshadowed by commentators and practitioners alike. The decision confirmed the 2016 Chamber’s judgment by holding that the Swiss Federal Tribunal’s decline of jurisdiction in a civil case involving reparation for torture committed outside the territory of Switzerland by foreign authorities against a foreign national did not amount to a violation of Article 6(1) ECHR. However, the Court’s reasoning in the case under review is susceptible of being criticized in more than one respect. The compatibility of the conduct of the Swiss judiciary with Article 6(1) ECHR is dubious to say the least, even more so since the Federal Tribunal’s restrictive interpretation of the requirements for the application of forum necessitatis jurisdiction, and especially of the “sufficient connection” requirement, managed to produce a fully-fledged denial of justice. Should such a trend gain consistency, the effectiveness of the right of access to a court may be put at risk.