The long awaited Commission proposal (COM(2010) 748/3) on the review of Brussels I has been published today. The proposed amendments are numerous and require more detailed study, but here are some of the highlights.

1) Abolition of the exequatur. Following the argumentation in the Green Paper on the costs, time and trouble of obtaining a declaration of enforceability in another Member State, and the abolition of the exequatur in recent specific instruments, the Commission proposal indeed provides for the abolition of the exequatur (Art. 38). However, exceptions are made for defamation cases – also excluded from Rome II – and, most interestingly, compensatory collective redress cases – at least on a transitional basis. The ‘necessary safeguards’ are: 1) a review procedure at the court of origin in exceptional cases where the defendant was not properly informed, similar to the review clause in specific instruments abolishing the exequatur; 2) an extraordinary remedy at the Member State of enforcement to contest any other procedural defects which may have infringed the defendant’s right to a fair trial; 3) a remedy in case the judgment is irreconcilable with another judgment which has been issued in the Member State of enforcement or – provided that certain conditions are fulfilled – in another country. The proposal also contains a series of standard forms which aim at facilitating the recognition or enforcement of the foreign judgment in the absence of the exequatur procedure as well as the application for a review.

2) Extension of the Regulation to defendant’s domiciled in third States. The special grounds of jurisdiction will enable businesses and citizens to sue a non EU defendant in, amongst others, the place of contractual performance, or the place where the harmful event occurred. It further aims to ensure that the protective jurisdiction rules available for consumers, employees and insured will also apply if the defendant is domiciled outside the EU. Two additional fora are created: under certain conditions a non-EU defendant can be sued at the place where moveable assets belonging to him are located, or where no other forum is available and the dispute has a sufficient connection with the Member State concerned (“forum necessitatis“). Further, the proposal introduces a discretionary lis pendens rule for disputes on the same subject matter and between the same parties which are pending before the courts in the EU and in a third country.

3) Enhanced effectiveness of choice of court clauses. Another anchor is the improvement of the effectiveness of choice of court clauses, by: a) giving priority to the chosen court to decide on its jurisdiction, regardless of whether it is first or second seised, meaning that any other court has to stay proceedings until the chosen court has established or – in case the agreement is invalid – declined jurisdiction; b) introducing a harmonised conflict of law rule on the substantive validity, referring to the law of the chosen court. As the explanatory memorandum states, both modifications reflect the solutions established in the 2005 Hague Convention on the Choice of Court Agreements, thereby facilitating a possible conclusion of this Convention by the European Union.

4) Improvement of the interface between the regulation and arbitration. One of the most controversial issues giving rise to heated debates is whether the arbitration exception should be maintained. Art. 1 of the proposal still contains the arbitration exclusion, but adds ‘save as provided for in Articles 29, paragraph 4 and 33, paragraph 3’. The proposed Article 29 includes a specific rule on the relation between arbitration and court proceedings, which obliges a court seised of a dispute to stay proceedings if its jurisdiction is contested on the basis of an arbitration agreement and an arbitral tribunal has been seised of the case or court proceedings relating to the arbitration agreement have been commenced in the Member State of the seat of the arbitration.

5) Provisional and protective measures. The proposal adds several articles concerning  provisional, including protective measures. It provides that the court where proceedings on the substance are pending and the court that is addressed in relation to provisional measures, should cooperate in order to ensure that all circumstances of the case are taken into account when a provisional measure is granted. Further, the proposal provides for the free circulation of those measures which have been granted by a court having jurisdiction on the substance of the case, including – subject to certain conditions – of measures which have been granted ex parte (!). However, contrary to the Mietz decision, the proposal provides that provisional measures ordered by a court other than the one having jurisdiction on the substance cannot at all be enforced in another Member State, in view of the wide divergence of national law on this issue and to prevent the risk of abusive forum-shopping.

There are many more interesting proposed amendments. This proposal certainly is ambitious, but also controversial on some points. Let the negotiations and the scholarly debate begin!

Reports of the death of the 1968 Brussels Convention have been greatly exaggerated.

In some parts of Europe, it is still possible to enjoy the application of old Article 5.1 of the Convention and to determine the place of performance of the obligation in question for a basic sale of goods.

One such example is Italy, where the Convention has risen from the dead. This happened a year ago, in Rome.

Italian Private International Law Act, 1995

In 1995, Italy reformed its private international law and adopted a new statute reforming the Italian System of Private International Law. Article 2 of the 1995 Statute provides that international conventions prevail over domestic rules. Thus, jurisdiction of Italian courts over disputes falling within the scope of the Brussels I Regulation is governed by the said Regulation.

Article 3 of the Statute provides a remarkable rule for disputes in civil and commercial matters falling outside the territorial scope of European law, i.e. when the defendant is not domiciled within the jurisdiction of a Contracting state. Instead of laying down its own rules of jurisdiction, the Italian lawmaker decided to apply further the ‘Brussels Convention’. Article 3 provides that the heads of jurisdiction provided by the Convention remain applicable. In other words, Italy extended the territorial scope of the Convention to civil and commercial disputes where the defendant is domiciled outside of a contracting state.

Art. 3 Ambito della giurisdizione.

2. La giurisdizione sussiste inoltre in base ai criteri stabiliti dalle Sezioni 2, 3 e 4 del Titolo II della Convenzione concernente la competenza giurisdizionale e l’esecuzione delle decisioni in materia civile e commerciale e protocollo, firmati a Bruxelles il 27 settembre 1968, resi esecutivi con la L. 21 giugno 1971, n. 804, e successive modificazioni in vigore per l’Italia, anche allorché il convenuto non sia domiciliato nel territorio di uno Stato contraente, quando si tratti di una delle materie comprese nel campo di applicazione della Convenzione.

That was all fine in 1995, when the Brussels Convention was alive and kicking. But when the Convention was replaced by the Brussels I Regulation, an issue arose. Was the reference to the ‘1968 Brussels Convention and it successive modifications in force in Italia’ to be interpreted as a reference to the new Regulation? Did it matter that Danemark kept on for a while applying the Brussels Convention? and that it has now stopped?

Legal Miracle

The question was put forward the Italian supreme court for private matters (Corte di Cassazione) last year. An Italian firm was suing a company incorporated in Monaco in a dispute involving a sale of goods. Monaco is neither a member of the European Union, nor a party to any Lugano Convention. Would jurisdiction be determined by establishing where the obligation in question had been performed, or by referrence to the place of delivery of the goods?

In October 2009, the Corte di Cassazione held that the referrence to the Brussels Convention could not be interpreted as designating the Brussels I Regulation. It thus applied old article 5.1 of the Brussels Convention. 

Any comment from Italian readers wishing to explain how international conventions can be resurrected is most welcome!

The third issue of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht is dedicated to the proposal for a new Dutch Act on Private International Law that will be incorporated in Book 10 of the Dutch Civil Code. It includes a critical general review, and contributions on private international law rules on marriages and the consequences for public policy and human rights; the regulation of overriding mandatory rules; the regulation of fait accompli; methods of interpretation in the light of Europeanization and internationalization; and party autonomy and the law of names.

• A.P.M.J. Vonken, Boek 10 BW:  meer – incomplete – consolidatie dan codificatie van het Nederlandse internationaal privaatrecht. Een bekommernisvolle bespiegeling over een legislatieve IPR-surplace, p. 399-409. The English abstract reads:

In recent decades European private international law (PIL) has undoubtedly made progress. This is largely due to the fact that a number of legislators have either codified part or all of their national PIL rules or adopted treaties and regulations drawn up by, e.g., the Hague Conference on Private International Law and the European Union. Recently, the Dutch legislator has also introduced a codification or, more precisely, a ‘consolidation’ covering an incomplete set of topics on the field of choice of law. I will argue that this Dutch project should be amended and supplemented to include the areas of international civil procedure (e.g., jurisdiction and the recognition and enforcement of foreign judgments) and to cover a more complete ruling of all kinds of choice of law issues for the sake of legal practice. Finally, I will propose some amendments and refinements to specific rules contained in this consolidation project.

• Susan Rutten, Aanpassing van het huwelijksrecht; gevolgen voor de openbare orde en mensenrechten in het IPR, p. 410-420. The English abstract reads:

The Dutch government is considering to take on problems of integration caused by the immigration of spouses through amending the rules governing marriage. The objective is to prevent immigrants living in the Netherlands from marrying abroad merely for the purpose of enabling their new spouse to acquire legal residence in the Netherlands. With this in mind, the government intends to raise the minimum age for marrying; to prohibit the conclusion of marriages between cousins; and to tighten the rules governing the recognition of foreign polygamous marriages. The plans will also affect rules of private international marital law, as well as the use of the public policy exception. In this article, the author examines whether the government’s tentative proposals respect human rights, in particular the right to marry. Furthermore, she questions whether the public-policy exception is a suitable technique for warding off undesirable foreign marriages. The introduction and codification in the Dutch Civil Code of a new book on private international law provide an opportunity for the legislator to legally define the concept of public policy. An express reference could be made to the effect that human rights are part of our public policy, since human rights, because of their nature, are in any case seen as fundamental principles. The above proposals by the government also prompt us to be aware of the risk of public policy being used or abused for interests other than those for which the exception was intended, where it is invoked to safeguard rules of which it is less evident that they may be seen as fundamental.

• Cathalijne van der Plas, Het leerstuk van de voorrangsregels gecodificeerd in boek 10: werking(ssfeer), p. 421-429. The English abstract reads:

Draft book 10 of the Dutch Civil Code contains a general conflict of laws provision in Article 10:7 on super mandatory rules (lois de police). Many international instruments, in particular several Hague Conventions and the Rome I and II Regulations, provide for the application of such special rules of a mandatory nature in addition to, or in derogation from, applicable private law. It nevertheless makes sense for the Dutch legislature also to provide for a domestic conflict of laws rule on the application of super mandatory rules, because not all areas of private law have been covered (as yet) by international instruments: notably parts of family law and the law of succession, the law of property, and of corporations. Some aspects of the application of super mandatory rules which remain uncertain in connection with the Rome I and II Regulations have been made explicit by the legislature, in particular the principle that the application of a law pursuant to rules of PIL includes super mandatory rules of that lex causae. Article 10:7 also allows for the application of super mandatory rules of third countries, which goes beyond the room for the application of such rules under Article 9 of the Rome I Regulation. It is submitted that the test which a court must apply when deciding whether the application of foreign public or administrative rules of law is justified and bears a resemblance to the tests under EU case law for determining whether some national rule infringes the free circulation of assets, capital and persons. EU case law provides examples of compelling public interests which could justify the application of a super mandatory rule in a specific situation. However, the Dutch courts will have the freedom to decide on the tests to be applied, and it remains to be seen how the new Article 10:7 will work out in specific cases.

• M.H. ten Wolde, De mysteries van het fait accompli en Boek 10 BW, p. 430-436. The English abstract reads:

Article 9 of draft Book 10 of the Civil Code introduces a new fait accompli (an accomplished fact) exception to be used in every area of conflict of laws: ‘In the Netherlands, the same legal consequences may be attached to a fact to which legal consequences are attributed under the law which is applicable under the private international law of a foreign state, also when this contravenes the law which is applicable according to Dutch private international law, in as far as not attaching those consequences would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.’ This provision aims to adjust the result of applying a Dutch conflict of law rule in the event that such a result is unacceptable since the parties involved assumed that a foreign conflict rule that referred the case to a different law was in fact applicable. The question arises whether the consequences attributed to a fact or act according to a foreign conflict of law rule may be accepted, even if those consequences do not arise under the law which is applicable according to Dutch conflict of law rules. In such a case Dutch conflict rules should yield in favour of the foreign conflict rule, but subject to the condition that the parties rightfully believed that their legal position was determined by the closely connected foreign conflict rules in question. Moreover, not granting such effects has to constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty It is remarkable that the fait accompli exception is codified as an universal exception to all conflict rules since it has never been regarded as such in the case law or literature. Among scholars it is mainly seen as a concept that helps to discover the applicable law. The legislator bases the exception of Article 9 on the principle of legitimate expectations as expressed in the Sabah case decided by the Supreme Court and on legal certainty. However, in the Sabah case the court dealt with a completely different problem, namely that of Dutch conflict rules succeeding each other in time. The author argues that the mentioned principle cannot, without any good reason, be extended to the question of the conflict between Dutch conflict rules and foreign conflict rules. Besides this, there is no valid reason to protect parties who deliberately cross the border to a foreign country against their unfamiliarity with the law (including confict of law) of that country. The reality of international legal practice is that a legal position as a consequence of differing conflict rules may have a different content in one country than in another. Parties should be aware of this fact. International legal practice does not need a fait accompli exception. It is advisable to delete Article 9 from Book 10 Civil Code.

• A.E. Oderkerk, Een lappendeken van interpretatiemethoden in de context van het Ontwerp Boek 10 BW – De invloed van Europeanisering en internationalisering van het IPR, p. 437-446. The English abstract reads:

In the Dutch Proposal on Private International Law (Book 10 of the Dutch Civil Code), a ‘General Part’ containing provisions on topics like public policy, internationally mandatory provisions, party autonomy, capacity et cetera has been included. However, unlike in some foreign private international law Acts, general provisions on interpretation and/or characterisation have been deliberately omitted. In this article it is argued that it would have been useful and possible to introduce such provisions. Useful because different methods (of a general, European or international background) of interpretation and characterisation have to be applied to different (groups of) provisions of this Book and it will not be obvious to practitioners which method will have to be applied when and how. Possible since – as will be shown – guidelines on which methods of interpretation and characterisation are to be applied and in which context can be laid down.

• Emilie C. Maclaine Pont, Partijautonomie in het ‘nieuwe’ internationale namenrecht, p. 447-455. The English abstract reads:

Recently, a bill has been prepared by the Dutch legislature in order to consolidate the rules of Dutch private international law. This ‘Book 10 of the Dutch Civil Code’ includes personal status issues. More specifically, this article focuses on surnames. In two judgments – Garcia Avello and Grunkin-Paul – the Court of Justice of the EU provided incentives for the Member States to reconsider their rules regarding surnames concerning conflict of law rules and the recognition of surnames. The question is whether the Dutch regulations as laid down in the new ‘Book 10 of the Dutch Civil Code’ are in conformity with these decisions. This article reaches the conclusion that this question must be answered in the negative and recommends some adjustments to the current bill with the introduction of a choice of law clause.

As we pointed out in a previous post, a very rich collection of essays in honor of Prof. Kurt Siehr on his 75th birthday has been recently published by Eleven International Publishing and Schulthess, under the editorship of Katharina Boele-Woelki, Talia Einhorn, Daniel Girsberger and Symeon Symeonides: Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr. A previous Festschrift was dedicated to Prof. Siehr in 2000: “Private Law in the International Arena – From National Conflict Rules Towards Harmonization and Unification: Liber amicorum Kurt Siehr” (see Google Books).

Here’s the table of contents:

Part I: General Aspects of PIL Law-Making.

• Talia Einhorn, American vs. European Private International Law – The Case for a Model Conflict of Laws Act (MCLA);
• Peter Hay, Comparative and International Law in the United States – Mixed Signals;
• Herbert Kronke, Connecting Factors and Internationality in Conflict of Laws and Transnational Commercial Law;
• Jim Nafziger, Democratic Values in the Choice-of-Law Process;
• Anton K. Schnyder, Keine Berührungsangst des Schweizerischen Bundesgerichts im Umgang mit Eingriffsnormen;
• Frank Vischer, ‘Revolutionary ideas’ and the Swiss Statute on Private International Law;
• Jun Yokoyama, Renvoi in Japanese Private International Law.

Part II: Family Relations and Succession.

• Katharina Boele-Woelki  & Maarit Jantära-Jareborg, Protecting Children Against Detrimental Family Environments under the 1996 Hague Convention and the Brussels II bis Regulation;
• Andrea Bonomi, Choice-of-law Aspects of the Future EC Regulation in Matters of Succession – A First Glance at the Commission’s Proposal;
• Alegria Borras, The Necessary Flexibility in the Application of the New Instruments on Maintenance;
• William Duncan, Hague Conference Future Developments in International Family Law with Special Emphasis on Cross-border Child Protection: A View from The Hague;
• Eric Jayme, Der deutsche Nachlaßrichter und die amerikanische „tracing rule“ im Internationalen Ehegüterrecht – Eine Problemskizze;
• Peter Kindler, From Nationality to Habitual Residence: Some Brief Remarks on the Future EU Regulation on International Successions and Wills;
• Patrick Kinsch, Luxembourg Recognition in the Forum of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law;
• Christian Kohler, Germany Elliptiques variations sur un thème connue: compétence judiciaire, conflits de lois et reconnaissance de décisions en matière alimentaire d’après le règlement (CE) n° 4/2009 du Conseil;
• Rong-chwan Chen, Conflict of Laws of Divorce: Judicial Practice and Legislative Development of Taiwan;
• Heinz-Peter Mansel, The Impact of the European Union’s Prohibition of Discrimination and the Right of Free Movement of Persons on the Private International Law Rules of Member States – With comments on the Sayn-Wittgenstein case before the European Court of Justice;
• Gustaf Moller, On the Hague Convention on the Civil Aspects of International Child Abduction and its application by the Supreme Court of Finland;
• Jan Neels, South Africa External Public Policy, the Incidental Question Properly So-called and the Recognition of Foreign Divorce Orders;
• Teun Struycken, The Netherlands Surrogacy, a New Way to Become a Mother? A New PIL Issue.

Part III: Contractual and Non-Contractual Obligations.

• Michael Bogdan, Some Reflections on Contracts and Torts in Cyberspace in view of Regulations Rome I and Rome II;
• Andreas Furrer, Cross-border Multimodal Transport – Problems and Limits of Finding an Appropriate Legal Regime;
• Ulrich Magnus, UN-Kaufrecht und Verbraucher;
• Peter Mankowski, The Principle of Characteristic Performance Revisited Yet Again;
• Robin Morse, Contracts of Carriage and the Conflict of Laws;
• Monika Pauknerova, Presumptions, Escape Clauses and International Carriage of Goods Contracts;
• Oliver Remien, Tourism, Conflict of Laws and the Rome I Regulation;
• Symeon Symeonides, Party Autonomy in Rome I and II from a Comparative Perspective; [see our dedicated post here]
• Lajos Vekas, Hungary Questions of Contract Law in the New Hungarian Civil Code.

Part IV: International Litigation and Arbitration.

• Paul R. Beaumont & Burcu Yüksel, The Validity of Choice of Court Agreements under the Brussels I Regulation and the Hague Choice of Court Agreements Convention;
• George Bermann, USA Parallel Litigation: Is Convergence Possible?;
• Dagmar Coester-Waltjen, Einige Überlegungen zu Schiedsgerichtsvereinbarungen und ihrer Wirksamkeit;
• Giuditta Cordero-Moss, Legal Capacity, Arbitration and Private International Law;
• Harry Duintjer Tebbens, New Impulses for the Ascertainment of Foreign Law in Civil Proceedings: A question of (inter)networking?;
• Marc Fallon & Dimitrios-Panagiotis Tzakas, Res Judicata Effects of Foreign Class Action Rulings in the EU Member States;
• Celia Fassberg-Wasserstein, Israeli Foreign Judgments Law: A Case for Codification?;
• Manlio Frigo, The Linguistic Factor in the Circulation of Arbitral Awards and Some of its Pitfalls;
• Helene Gaudemet-Tallon, La clause attributive de juridiction, un moyen d’échapper aux lois de police?;
• Daniel Girsberger, The Effects of Assignment on Arbitration Agreements – Why Conflict-of-Laws Theory is Still Needed;
• Tibor Varady, Observation of Group Affiliation (or: Cohabitation with the Impossible) in International Commercial Arbitration;
• Spyridon Vrellis, The Validity of a Choice of Court Agreement Under the Hague Convention of 2005.

Part V: Cultural Property.

• Johan Erauw, Conflict of Laws with Folgerecht (‘droit de suite’) on the Sale of Works of Art in and out of Europe – after the EC-Directive No. 2001/84;
• John Henry Merryman, The van Meegeren Problem;
• Gerte Reichelt, Versunkene Welten Rechtlicher Schutz des archäologischen Unterwasserkulturerbes;
• Marc-André Renold, The International Scope of Application of the Swiss Rules on the Due Diligence of Dealers in Cultural Property.

– – – – – – – – – – – – – – – – – – – – – – –

Title: Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr, edited by Katharina Boele-Woelki, Talia Einhorn, Daniel Girsberger, Symeon Symeonides; Eleven International Publishing – Schulthess,  The Hague – Zürich, 2010, 918 pages.

ISBN : 978-90-77596-93-7 (Eleven); 978-3-7255-6165-0 (Schulthess).

Mathias Audit, who is a professor of law at the University of Paris Ouest – Nanterre La Défense, will organise a conference in Paris on November 10th, 2010, on State Insolvency and Sovereign Debts.

Here is the programme:

Insolvabilité des Etats et dettes souveraines

Programme

8h30 : Accueil des participants

9h : Ouverture du colloque par M. le sénateur Philippe MARINI

9h15 : Introduction générale aux travaux

Matinée placée sous la présidence de M. Hubert DE VAUPLANE, Directeur juridique et Conformité au Crédit agricole et professeur associé à l’Université Paris II – Panthéon Assas

• 9h30 : Un Etat peut-il faire faillite ? – Le point de vue économique
  par M. Jérôme SGARD, directeur de recherches à Sciences Po/CERI et professeur associé à l’Université Paris-Dauphine
  10h : Un Etat peut-il faire faillite ? – Le point de vue juridique
  par M. Michael WAIBEL, British Academy Postdoctoral Fellow, Lauterpacht Centre for International Law and Downing College, University of Cambridge

10h30 : Pause

• 11h : La dette souveraine appelle-t-elle un statut juridique particulier ?
  par M. Mathias AUDIT, professeur de droit à l’Université Paris Ouest – Nanterre La Défense
• 11h30 : Incidence des Credit Default Swaps sur les dettes des Etats : bilan et prospective
  par Me Jérôme DA ROS, avocat à la cour
• 12h : Les « fonds vautours » sont-ils des créanciers comme les autres ?
  par M. Patrick WAUTELET, professeur à l’Université de Liège
• 12h30 : Discussion générale

13h : Déjeuner libre

Débats placés sous la présidence de M. Christian DE BOISSIEU, professeur d’économie à l’Université Paris I – Panthéon-Sorbonne

• 14h30 : Agence de notation : responsabilité, régulation ou laissez-faire ?
  par M. Norbert GAILLARD, docteur en économie (Sciences Po/Princeton), consultant auprès de la Banque mondiale
• 15 h : La régulation de l’information sur le marché des dettes souveraines
  par M. Alain BERNARD, professeur à l’Université de Pau et des Pays de l’Adour

15h30 : Pause

Débats placés sous la présidence de M. Jean-Bernard AUBY, professeur des universités à l’Ecole de Droit de SciencesPo, directeur de la chaire « Mutations de l’Action Publique et du Droit Public » (MADP)

• 16 h : Les instruments de droit international public pour remédier à l’insolvabilité des Etats
  par M. Mathias FORTEAU, professeur à l’Université Paris Ouest – Nanterre La Défense
• 16h30 : Les instruments de droit de l’Union européenne pour remédier à l’insolvabilité des Etats
  par M. Francesco MARTUCCI, professeur à l’Université de Strasbourg
• 17h : Discussion générale
• 17h30 : Conclusion générale
  par Mme Horatia MUIR WATT, professeur des universités à l’Ecole de Droit de SciencesPo

It is free of charge. Registration, however, is compulsory (michele.dreyfus@u-paris10.fr).

The third issue of French Journal du droit international (Clunet) for 2010 was just released.

It includes four articles and several casenotes. Two of the articles deal with conflict issues.

The first one is authored by Nabil Ferjani and Véronique Huet and discusses the impact of embargo United Nation decisions on the performance of international contracts (L’impact de la décision onusienne d’embargo sur l’exécution des contrats internationaux). The English abstract reads:

Generally, an international contract has to been studied in a very large context, in relation with political, juridical and economic circumstances in what it takes place. This is all right if we consider the juridical order to the conclusion of this form of contract during all its existence. The international doctrine gives a good place to contractual clauses and to their interprÉtation by arbiters of international commerce. Defined as a temporary measure, the pre-juridical decision of embargo, adopted as by UNI, as unilaterally, as by regional organizations, ended as soon as the infractions of a State have been finished, in period of armed or post-conflict, in the only goal to end the violation of the international legality. The smart sanctions adopted by Security Council of the United Nations these last years have to been considered as a just and proportionate appreciation of humanitarian situations of suffering people.

The second one is authored by Bernard Haftel, who lectures at the University of Orleans, and discusses the uniform interpretation of the Rome I Regulation (Entre Rome II et Bruxelles I. L’interprétation communautaire uniforme du Règlement Rome I). The English abstract reads:

Last-born among European Union Private International Law, the « Rome I » Regulation establishes rules concerning the law applicable to contracts. Thus, some of its notions and terms are also in use in other European Union Regulations concerning Private International Law such as the « Brussels I » and the « Rome II » Regulations. « Rome I » and « Rome II » deal with the same legal issue – i.e. choice of Law – but one focuses on the contractual side while the other considers the non-contractual side of obligations. « Rome I » and « Brussels I » both deal with matters relating to contracts, the former establishing the Choice of Law rules while the latter deals with Jurisdiction. Therefore, a study of these regulations seems necessary in order to determine to what extent the interpretations adopted by the Court of Justice for one of these Regulations should, or shouldn’t, be used for the others.

The XI volume (2009) of the Yearbook of Private International Law (YPIL), published by Sellier – European Law Publishers in association with the Swiss Institute of Comparative Law (ISDC), is out. The Yearbook, edited by Andrea Bonomi and Paul Volken, contains a huge number of articles, national reports, commentaries on court decisions and other materials, up to nearly 650 pages.

Here’s the full list of contributions (available as .pdf on the publisher’s website, where the volume can be purchased, also in electronic format):

Doctrine

• Erik Jayme, Party Autonomy in International Family and Succession Law: New Tendencies;
• Ralf Michaels, After the Revolution – Decline and Return of U.S. Conflict of Laws;
• Diego P. Fernández Arroyo, Private International Law and Comparative Law: A Relationship Challenged by International and Supranational Law;
• Koji Takahashi, Damages for Breach of a Choice-of-Court Agreement: Remaining Issues;
• Eva Lein, A Further Step Towards a European Code of Private International Law: The Commission Proposal for a Regulation on Succession;
• Giulia Rossolillo, Personal Identity at a Crossroads between Private International Law, International Protection of Human Rights and EU Law;
• Urs Peter Gruber / Ivo Bach, The Application of Foreign Law: A Progress Report on a New European Project;
• Juan José Alvarez Rubio, Contracts for the International Carriage of Goods: Jurisdiction and Arbitration under the New UNCITRAL Convention 2008.

Private International Law in China – Selected Topics

• Yongping Xiao / Weidi Long, Contractual Party Autonomy in Chinese Private International Law;
• Qisheng He, Recent Developments with Regards to Choice of Law in Tort in China;
• Renshan Liu, Recent Judicial Cooperation in Civil and Commercial Matters between Mainland China and Taiwan, the Hong Kong S.A.R. and the Macao S.A.R.;
• Weidong Zhu, Law Applicable to Arbitration Agreements in China;
• Yongping Xiao, Foreign Precedents in Chinese Courts;
• Guoqiang Luo (Steel Rometius), Crime of Law-Bending Arbitration in Chinese Criminal Law and Its Effects on International Commercial Arbitration;
• Fang Xiao, Law Applicable to Arbitration Clauses in China: Comments on the Chinese People’s Supreme Court’s Decision in the Hengji Company Case.

National Reports

• Didier Opertti Badán / Cecilia Fresnedo de Aguirre, The Latest Trends in Latin American Private International Law: the Uruguayan 2009 General Law on Private International Law;
• Jeffrey Talpis / Gerald Goldstein, The Influence of Swiss Law on Quebec’s 1994 Codification of Private International Law;
• Yasuhiro Okuda, Initial Ownership of Copyright in a Cinematographic Work under Japanese Private International Law;
• Elisabeth Meurling, Less Surprises for Spouses Moving Within the Nordic Countries? Amendments to the 1931 Nordic Convention on Marriage;
• Andreas Fötschl, The Common Optional Matrimonial Property Regime of Germany and France – Epoch-Making in the Unification of Law.

News from UNCITRAL

• Jenny Clift, International Insolvency Law: the UNCITRAL Experience with Harmonisation and Modernisation Techniques.

Court Decisions

• Zeno Crespi Reghizzi, ‘Mutual Trust’ and ‘Arbitration Exception’ in the European Judicial Area: The West Tankers Judgment of the ECJ;
• Mary-Rose McGuire, Jurisdiction in Cases Related to a Licence Contract Under Art. 5(1) Brussels Regulation: Case-Note on Judgment ECJ Case C-533/07 – Falco Privatstiftung and Thomas Rabitsch v. Gisela Weller-Lindhorst;
• Antonio Leandro, Effet Utile of the Regulation No. 1346 and Vis Attractiva Concursus. Some Remarks on the Deko Marty Judgment;
• Ben Steinbrück, Jurisdiction to Set Aside Foreign Arbitral Awards in India: Some Remarks on an Erroneous Rule of Law;
• Gilberto Boutin, Forum non conveniens and Lis alibi pendens in International Litigation in Panama.

Forum

• Fabrizio Marongiu Buonaiuti, Lis Alibi Pendens and Related Actions in Civil and Commercial Matters Within the European Judicial Area;
• Caroline Kleiner, Money in Private International Law: What Are the Problems? What Are the Solutions?;
• Benedetta Ubertazzi, Intellectual Property and State Immunity from Jurisdiction in the New York Convention of 2004.

See also our previous posts on the 2006, 2007 and 2008 volumes of the YPIL.

(Many thanks to Gian Paolo Romano, Production Editor of the YPIL)

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

Here is the contents:

• Christoph Thole: “Anscheinsbeweis und Beweisvereitelung im harmonisierten Europäischen Kollisionsrecht – ein Prüfstein für die Abgrenzung zwischen lex causae und lex fori” – the English abstract reads as follows:

The harmonisation of European private international law has been heavily debated. However, the new Rome Regulations (Rome I and II) have not been fully scrutinized with respect to the distinction between procedural law and substantive law and its implications for the applicability of the lex fori-principle. This article focuses on two well-known issues of civil procedure law – prima facie evidence and obstruction of evidence. It examines the difficult question of how to deal with these legal institutes in private international law under the regime of the Rome Regulations.

• Götz Schulze: “Moralische Forderungen und das IPR” – the English abstract reads as follows:

Moral claims articulate ethical positions of values which are hardly considered in the judicial discourse. This article first shows the moral implications of judicial claims in the field of the substantive civil law, which can be denominated as “minima moralia” of the civil law. Furthermore, moral claims exist as a social phenomenon. Their characteristic is the indeterminableness in claiming for an intrinsically pursued purpose which is regarded to be a good one. In Private International Law the ethical axiom of mutual recognition obtains a specific meaning. There, recognition refers to the claim of the other for being recognised. Thereby the other in Private International Law can be both, the individual and the state. The claims for identity of states and individuals are shaped by the law. The law of a state has to be acknowledged as a cultural achievement. Therefore, if there is a strong link to the facts, legal ethics demand an application of foreign law as a question of respecting state and individual. Beyond cosmopolitically conceived legal ethics demand to amend the applied law by cultural virtues. The judicial “gateways” for such ethical aspects are the general clauses like the good faith. Thus, the “moral-data”-doctrine of Jayme obtains a legitimation by legal ethics. Furthermore, ethical virtues may gain recognition in non-governmental treaties such as the Washington-Conference-Principles on Nazi-Confiscated Art. For provisions that articulate moral claims without comprehending an enforceable legal consequence Jayme has developed the term “narrative norms”. They allow to balance contradicting moral positions and claims by finding a compromise instead of strict all-or-nothing-results. This can be shown on the basis of the ruling in the Sachs-case, which has dealt with the restitution of Nazi-Confiscated art-posters (Kammergericht Berlin on 28 January 2010).

•  Rolf Wagner/Ulrike Janzen: “Das Lugano-Übereinkommen vom 30.10.2007” – the English abstract reads as follows:

The revised Lugano Convention has entered into force on 1 January 2010 between the EU, Norway and Denmark. Switzerland will probably join the Convention in 2011. The aim of the Lugano revision was to achieve parallelism between the provisions of Regulation (EC) No. 44/2001 (“Brussels I”) and the Lugano Convention, as it had existed between the Lugano Convention of 1988 and the Brussels Convention of 1968. In addition, as the ECJ has decided the Lugano Convention falls entirely within exclusive Community competence, the EU Member States (except Denmark) are no longer Contracting Parties to the Convention. This article explains the history and the concept of the “new” Lugano Convention. Further on it aims at exposing the differences between the “old” and the “new” Lugano Convention as well as the latter’s relationship with Regulation No. 44/2001.

• Christian Schmitt: “Reichweite des ausschließlichen Gerichtsstandes nach Art. 22 Nr. 2 EuGVVO” – the English abstract reads as follows:

This article analyzes the scope of exclusive jurisdiction pursuant to Art. 22 no. 2 of the Brussels I-Regulation („Brussels I“). Besides investigating whether Art. 22 no. 2 of Brussels I is merely applicable to formal organ decisions, it mainly deals with the question whether preliminary questions have to be considered in determining the matter in dispute. The ratio of Art. 22 no. 2 Brussels I is to avoid contradictory decisions about the existence of the company and the effectiveness of its organ’s decisions. Taking into consideration this ratio and the established case law by the ECJ which leads to a restrictive interpretation of the provisions of Art. 22 of Brussels I, this article comes to the conclusion that Art. 22 no. 2 of Brussels I is not applicable to cases in which the effectiveness of the organ’s decision is merely a preliminary question.

• Marius Kohler/Markus Buschbaum:” Die „Anerkennung“ öffentlicher Urkunden? – Kritische Gedanken über einen zweifelhaften Ansatz in der EU-Kollisionsrechtsvereinheitlichung” – the English abstract reads as follows:

On October 14th, 2009 the European Commission presented a proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession. The proposed Regulation is aimed at unifying and simplifying the rules governing successions, increasing their predictability and providing more effective guarantees for the rights of heirs and/or legatees and other persons linked to the deceased, as well as creditors of the succession. In this context, the proposal is also aimed at guaranteeing that authentic instruments in matters of succession can move freely in the European Union. To this end the European Commission proposes to simply transfer the well-known concept of recognition as is used to enable the cross-border circulation of judicial decisions to authentic instruments. Kohler/Buschbaum seize upon this approach which they criticize as being inapt and even harmful to the objective of strengthening the free circulation of authentic instruments. In particular, it turns out that the approach chosen by the Commission would even serve to circumvent the – harmonised – provisions of Private International Law on validity and legal effects of the legal acts underlying authentic instruments. A French version of the article is available under www.iprax.de.

• Paul Oberhammer: “Im Holz sind Wege: EuGH SCT ./. Alpenblume und der Insolvenztatbestand des Art. 1 Abs. 2 lit. b EuGVVO” – the English abstract reads as follows:

Three decades after the ECJ decision in the case Gourdain ./. Nadler, the ECJ has rendered three decisions relating to the scope of application of the Brussels I Regulation and the Insolvency Regulation with respect to litigation emerging from insolvency proceedings in 2009 (Seagon ./. Deko Marty Belgium, SCT Industri ./. Alpenblume and German Graphics ./. van der Schee). The contribution discusses the procedural history, the relevant issues and future effects of the ECJ’s decision SCT Industri ./. Alpenblume in detail.

• Moritz Brinkmann: “Der Aussonderungsstreit im internationalen Insolvenzrecht – Zur Abgrenzung zwischen EuGVVO und EuInsVO” – the English abstract reads as follows:

In German Graphics, a German title retention seller tried to enforce in the Netherlands an order for the adoption of protective measures by a German court against the trustee of the Dutch buyer. On a reference by the Hoge Raad, the ECJ clarified that Art. 25 II EuInsVO must be interpreted as meaning that the words “provided that that Convention is applicable” imply that it is necessary to determine whether a judgment falls inside the scope of application of the EuGVVO. Thus, the case raised once more the question of the scope of the exception provided for in Art. 1 II lit. b) EuGVVO, this time in a recognition and enforcement context. The court held that a seller’s claim based on his reservation of title does not fall under Art. 1 II lit. b) EuGVVO.

In his comment, Moritz Brinkmann argues that the court’s reasoning in German Graphics is convincing with respect to title reservation clauses. Here, the seller tries to recover a piece of property that is not part of the buyer’s estate. Such a claim is independent of the buyer’s insolvency and is not related to the insolvency proceedings. The mere fact that the order has to be enforced against the trustee is irrelevant. Title reserveration clauses, however, must be carefully dinstinguished from situations where the claimant is the owner of the asset in question by virtue of a fiduciary transfer of ownership for security purposes. Under such circumstances tha claim of the secured creditor – who is technically the owner – might nevertheless be characterized as a claim falling under Art. 1 II lit. b) EuGVVO. The author, furthermore, shows the consequences of the ECJ’s decision for the validity of choice of court clauses.

• Jan von Hein: “Die Produkthaftung des Zulieferers im Europäischen Internationalen Zivilprozessrecht” – the English abstract reads as follows:

The most recent decision of the ECJ on Article 5 No 3 of the Brussels I-Regulation, Zuid-Chemie v. Philippo’s, deals with the interpretation of the provision in a case involving product liability. The ECJ held that the place where the harmful event occurred’ designates the place where the initial damage occurred as a result of the normal use of the product for the purpose for which it was intended. Jan von Hein agrees with the decision, but criticises the lack of harmonisation of Art. 5 (3) of Brussels I with the new provision on the law applicable to claims for product liability in Article 5 of the Rome II-Regulation. He examines in detail whether and to which extent a harmonious interpretation of the two provisions is possible. He comes to the conclusion that the diverging policies and methodological foundations underlying Art. 5 No. 3 Brussels I, which follows the traditional principle of ubiquity, on the one hand, and Art. 5 Rome II, which is a variation of the cascade system of connecting factors pioneered by the Hague Convention on Product Liability, on the other, will inevitably lead to scenarios where jurisdiction and the applicable law do not coincide.

• Bettina Heiderhoff: “Einzelheiten zur öffentlichen Zustellung” – the English abstract reads as follows:

The due and timely serving of documents, especially those instituting proceedings (writ of summons), is an essential element of judicial proceedings. However, when the address of the recipient (respondent to the claim) is unknown, most European legal systems allow service by publication. In the two cases at hand, the courts had to deal with the prerequisites of such a service by publication. The German Federal High Court (BGH) decided that service by publication may be excluded when the claimant has not invested enough effort in to discovering the address of the defendant. From a general perspective, this attitude seems convincing as it is important that fictitious forms of service be avoided whenever possible. It seems less convincing, however, that, through the introduction of the requirement of “sufficient effort”, the rules on service by publication (and, in particular, foreign rules) are softened and legal certainty and predictability are reduced.

• Reinhold Geimer: “Zurück zum Reichsgericht: Irrelevanz der merger-Theorien – Kein Wahlrecht mehr bei der Vollstreckbarerklärung”

The article analyses a judgment given by the German Federal Court of Justice (BGH, 2 July 2009, IX ZR 152/06) confirming the predominant opinion according to which an exequatur decision given by a third state cannot be declared enforceable in other states. In derogation from a previous judgment (BGH, 27 March 1984 – IX ZR 24/83) according to which the principle of the inadmissibility of double exequatur does not apply in case of the application of the doctrine of merger, the BGH now held that also in these cases there was no reason to derogate from this principle and thus returned to the approach adopted already by the Supreme Court of the German Reich.

• Maximilian Seibl: “Kollisionsrechtliche Probleme im Zusammenhang mit einem Mietwagenunfall im Ausland – Anknüpfungsgrundsätze, Haftungsbeschränkung und grobe Fahrlässigkeit” – the English abstract reads as follows:

Traffic accidents abroad prove to be one of the most relevant matters in the area of International Tort Law. As the Convention of 4 May 1971 on the law applicable to traffic accidents has not been signed by Germany the question as to which law governs such cases must be answered by the general International Tort Law provisions, i.e. by the Regulation (EC) No. 864/2007 (Rome II) or, in older cases, by Art. 40 EGBGB. The Federal Court of Justice of Germany (BGH) had to decide on a case in which two medical students had spent three months in South Africa together in order to pass practical education required for their studies. During their stay they had commonly rented a car. Both of them had assumed that the insurance modalities in South Africa in case of an accident were comparable to those in Germany, so that they had not contracted private insurance offered by the car rental company. In fact there was only the so-called “South African Road Accident Fund” which offered victims of car accidents compensation to the amount of 25.000 South African Rand (ca. 3.000 e) at that time. Since one of the students was not accustomed to driving on the left, she caused an accident after turning into a National Road resulting in severe injuries to the other. The BGH held that according to Art. 40 (2) EGBGB German law as the lex domicilii communis was applicable in the case. As the application of this rule can lead to a situation where strict liability applies to the keeper of the car while there is no insurance available, there is a controversy in German literature as to whether or not this rule should be applied if rented cars are involved. However, in this case the BGH provided a solution in the area of substantive law by assuming the existence of a tacit nonliability clause, which generally proves to meet the interests of the parties involved better than a modification of the Private International Law provision. In respect to classification the question as to whether or not such a clause can actually be assumed to have been concluded is a question of the law applicable to the contract, which was German law in the case. On the other hand it is up to the applicable tort law to decide as to whether or not such a clause is effective. Since German law, however, was also applicable in respect to tort matters, there was no problem concerning a possible restriction on the effectivity of the tacit clause in the present case. As a result the driver in the case would only have been liable if she had acted with gross negligence. On principle, the standards of conduct derive from local data whose applicability does not depend on the respective International Tort Law provision. However, in case a lex domicilii communis exists, the standards of conduct in respect to the relation of passengers in the same car must be taken from this law, insofar it makes no difference whether the tortuous act was committed inland or abroad. Since the condition for gross negligence according to German law had not been met in the case, the BGH found for the defendant.

• Anna Radjuk: “Grenzen der Anwendung des ausländischen Rechts in Russland” – the English abstract reads as follows:

In Russia, International Private Law was recently newly codified into the Russian Civil Code. Among others, new provisions with regard to the imperative norms and public policy were implemented. The present article investigates the impact of the imperative norms and public policy on the freedom of choice of law both in theory and practice from the time of the new codification.

• Christian Hoppe: “Englisch als Verfahrenssprache – Möglichkeiten de lege lata und de lege ferenda”

The article presents a current attempt in Germany to admit – in certain cases – English as the language of procedure. Two German states (“Bundesländer”), North Rhine-Westphalia and Hamburg have presented a legislative proposal according to which special chambers for international commercial matters should be introduced which should, according to the proposal, litigate in English.

• Erik Jayme/ Carl Friedrich Nordmeier on a seminar held on 12 November 2009 at the “Pontifícia Unversidade Católica” in Rio de Janeiro on international maintenance law: “Neue Wege im Internationalen Unterhaltsrecht: Parteiautonomie und Privatisierung des ordre public Seminar in Rio de Janeiro”
• Erik Jayme on a conference held in Heidelberg on living wills and private international law: “Patientenverfügung und Internationales Privatrecht Tagung im Italienzentrum der Universität Heidelberg”

Horatia Muir Watt is a Professor at the School of Law of Sciences Po, Paris.

From the standpoint of an outside observer with « a view from across », the practical result reached in the Morrison case seems reasonable. It is highly probable that in a similar situation – that is, supposing jurisdiction could be secured under the relevant rules applicable before, say the courts of Member States as against foreign-third-State-domiciled defendants AND imagining private attorney general actions for violations of trans-European securities regulations – courts  over this side of the Atlantic (and for realistic symmetry, we’d need to think in terms of the rulings by the Court of Justice of the European Union as relayed by the courts of the Member States) would not (whatever the reasoning involved) have extended the scope of domestic economic regulation to an “F-cubed” action. However, the concrete result reached in this particular case is clearly not the point in issue. Nor indeed is there any reason not to adhere to the important policy objective of discouraging global forum-shoppers (or their lawyers) attracted by the well-known magnetic properties of US civil procedure in purely financial matters when private punitive-damage-actions are available. The real question is the approach adopted by the Supreme Court in its first decision relating to the ambit of the Securities and Exchange Act in an international setting.

I’ll simply emphasise a few points that might be of specific interest to European observers on the Supreme Court’s new “transactional test”. (I’ll refrain from speculating here as to the impact of the potential new “anti-Morrison” legislation to which Gilles has just posted the links), or to the difference it might have made on the overall result had Justice Kagan, who authored the US amicus brief favoring the “substantial conduct” test, been sitting on the Court). In order to define the reach of § 10(b) of the Securities Exchange Act 1934 (and thereby of SEC 10b-5), the Court decided that these various stringent informational/transparency requirements apply only to transactions in securities listed on US exchanges or otherwise sold within the US:

1. It comes as a surprise (and disappointment) to see the Supreme Court turning its back on several decades of (what looked from over here like) a widely shared and carefully tailored   functional approach (initiated by the Court of Appeals of the Second Circuit whose case-law is discussed extensively) to the determination of the scope of federal economic regulation, in favor of a bright-line rule based on a regression to the presumption against extra-territoriality.  As the concurrence suggests, haven’t we been there before? Well over here, we certainly have. Obviously, the EU is only just beginning to grapple with similar issues (first in respect of the extraterritorial scope of European competition law, then in diverse areas involving the international reach of directives, such as the Agency Directive in the controversial Ingmar case) but if intra-European (as opposed to the international reach of “federal” or trans-European legislation) conflicts are anything to go by (and indeed much has been written on this point within the US on the striking parallelism between methodological approaches in international arena and in intra-federal situations) then the quest for a “simple” or “certain” conflicts rule designed to provide legal security to economics actors has proved at best elusive, at worst unfair. Whether or not one decides to adhere to a dogmatic principle of territoriality or its contrary, surely the only real issue is whether it is reasonable in functional or policy terms, given the connections between the conduct, its effects and the market the statute was designed to regulate, to extend such a statute in a given case. It is doubtful indeed that the concept of “territoriality” is of much help.
2. Of course, framed in these terms, a functional approach provides little predictability. Over here, this has been a well-known war-cry since the mid-sixties against the importation of any form of American legal realism in the sphere of the conflict of laws (let alone any weird law-and or, worse, critical legal thinking in any other sphere, domestic or global…). However, it also seems clear (from over here) that in the particular case of the reach of US Securities regulation, the courts (and the Second Circuit in particular) have, over time, attempted to refine this test – albeit, as inevitable with any judicial-interpretation-in-progress, with results that may sometimes lack coherence –  so that it seems a shame that these painstaking efforts be set aside in one fell swoop. It appears then that the real debate concerns canons of statutory construction which involve far more than the sole issue of the international reach of the Exchange Act and extends to the whole sensitive question of judicial law-making when statutes are either silent or fuzzy in novel contexts. (Paradoxically, over here, the opposition between conservative originalists/fundamentalists and more policy or society-attuned liberals is considerably less violent than in the US on issues of statutory interpretation and the role of the courts, although one still comes across (in France) people who claim to believe that case-law interpreting the Code civil of 1804 is not a source of law, etc.; there are also signs of renewed debate on the role of the courts in the context of the new Constitutional review procedure in the French courts (the “QPC” 2010), over whether new Constitutional review should extend or not to judicial constructions of statutes). One is however struck by the fact that although the previous policy-based, conducts-and-effects approach practiced by the courts is stigmatized as having no textual foundation, one may also wonder, in turn, where exactly the dogma of territoriality comes from.
3. So we’ve been there before (I think). But even if we accept that bright-line rules and dogmatic presumptions have their virtues, and may indeed work adequately if the courts are allowed sufficient margin to set them aside, these issues on statutory interpretation do not address the crucial question of building an appropriate response to the various dysfunctions of global markets. Of course, as the Court very rightly points out, financial markets are the object of very different national conceptions of regulation: there is no shared/uniform answer to the question of what a securities fraud actually is (I’d personally go further, of course, to say that there is no uniform answer to anything, but that is no doubt quite beside the point). But the existence of “true” conflicts of  economic relation is not new. In the area of antitrust, the Court’s appeal to positive comity in such a context, in Empagram, seems more attractive from this side of the Ocean. More importantly, in a world that is complex and messy (as Hannah has excellently pointed out), would it not be more judicious to devote energy to defining the requirements of reasonableness in the scope given to domestic regulation rather than asserting the primacy of a “principle of territoriality” which is not only culturally conditioned in the common law tradition (as I have often explained elsewhere), undefinable as a general matter, and totally maladjusted to contemporary interconnected markets. Indeed, the concurring opinion of Justices Stevens and Ginsburg provides an excellent hypothetical to illustrate the way in which the court’s territorial, transaction-based test is likely to create a loophole for many types of securities fraud.
4. My last point will be a hotch-potch of observations which may only interest the European private international lawyer-observer. First, as I have often tried to make clear in a tradition of legal thinking in which the public/private distinction is still deeply ingrained, it is very hard here to contend that this is a conflict of “private” interests or private laws, notwithstanding the private actions/actors involved. Second, contrary to much that has been written, often misguidedly, over here on the Vivendi class litigation, this decision is not necessarily going to “protect foreign (French) interests” (whatever one may suppose them to be) nor prevent trans-Atlantic class actions including European investors as claimants or European firms as defendants, as long as the new transactional criteria are satisfied.  Third, it seems a little strange that at a time when the US Supreme Court is prudently retreating from extraterritoriality (whatever its reasons), the EU is doing exactly the reverse. Its policy appears to be to extend the effects of EU legislation to situations which are largely connected to third countries (after Owusu, see the new Alimentary Obligations Regulation or the Succession draft proposal). Finally, as I have already had the opportunity to point out elsewhere, considerable energy is currently being put into the reform of the Brussels I Regulation, following hard on the heels of Rome I and II.  That is of course all very well. But the Morrison litigation shows that our models are no doubt already out of date (methodologically, epistemologically). Instead of doing things like promoting party autonomy in contract throughout the world (the latest initiative of the Hague Conference on PIL!?) ought we not to be thinking ahead to the massive new types of difficulties that (for instance) cross-border/global securities fraud is now raising? 

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

This issue contains inter alia some of the papers presented at the Brussels I Conference in Heidelberg last December. The other papers were published in the previous issue.

Here is the contents:

• Paul Oberhammer: “The Abolition of Exequatur”

The Commission’s Report on the reform of the Brussels Regulation points out that “the abolition of the exequatur procedure in all matters covered by the Regulation” is the “main objective of the revision of the Regulation”. In this context, the Green Paper raises the following two questions: “Are you of the opinion that in the internal market all judgments in civil and commercial matters should circulate freely, without any intermediate proceedings (abolition of exequatur)? And in that case, are you of the opinion that some safeguards should be maintained in order to allow for such an abolition of exequatur? And in that case, which ones?”4 In the following discussion, I will try to answer these questions. As the problem is multifaceted, I can do so only in a very sketchy fashion.

• Andrew Dickinson: “Provisional Measures in the “Brussels I” Review – Disturbing the Status Quo?”

Art. 31 of the Brussels I Regulation provides: “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.” This provision closely mirrors Art. 24 of the Brussels and Lugano Conventions. Sitting (and, perhaps, partly hidden from view) between the provisions concerning, on the one hand, substantive jurisdiction and, on the other, the recognition and enforcement of judgments, the treatment of provisional measures attracted very little attention in the early history of those Conventions, being fleetingly considered in each of the official reports. That Art. 31 emerged intact from the process leading to the conversion of the Brussels Convention into a Community Regulation at the turn of the century is, however, surprising for the following reasons. First, as the Recitals to the Regulation emphasise, the predominant concern of the Community legislator was to adopt “highly predictable” rules of jurisdiction “founded on the principle that jurisdiction is generally based on the defendant’s domicile”. Art. 31 achieves neither objective. The delegation to national rules of jurisdiction (including rules of the kinds prohibited by Art. 3) creates a non-uniform landscape in which it is not possible for litigants to determine on the basis of the Regulation alone whether a particular court is competent to grant provisional measures. Secondly, the Commission itself in its 1997 Proposal for a Council Act establishing a revised Convention on jurisdiction and judgments had suggested replacing Art. 24 with a narrower provision, limiting the exorbitant power to grant provisional including protective measures (as defined) to cases of urgency in which the measure in question would be enforced within the territory of the State granting it. Thirdly, as the Commission noted in the explanatory memorandum accompanying its initial proposal for the Regulation in 1999, the Court of Justice (ECJ) had in the previous year been faced with two important references concerning Art. 24 of the Brussels Convention (Van Uden v. Firma Deco Line and Mietz v. Intership Yachting). In those decisions, the ECJ had recognised Art. 24 as an anomalous provision whose propensity to disturb the scheme established by the Brussels Convention needed to be curtailed. In response, the Court revisited Art. 24’s place in the jurisdictional scheme established by the Convention and reshaped it in ways that the Court found to be implicit in its wording and objectives but which are not readily apparent from a study of the text alone. A codification of some aspects, at least, of these rulings therefore appeared desirable. The need for caution in applying Art. 31 of the Regulation and its counterpart in Art. 31 of the Lugano II Convention (the successor instrument to the Lugano Convention) is highlighted by the commentary in the Heidelberg Report on the functioning of the Brussels I Regulation, in the Commission’s recent Report and Green Paper on the review of the Regulation and in the Explanatory Report on the Lugano II Convention by Professor Fausto Pocar. Although, for rather unsatisfactory reasons, the text of Art. 31 has been left intact in the Lugano II Convention, its revision is long overdue and this should be one of the objectives of the Brussels I review. By way of background, this article considers, briefly, the ECJ’s decisions in Denilauler, Van Uden and Mietz (Section II.) and the proposals advanced by the authors of the Heidelberg Report and the Commission (Sections III. and IV.) before turning to address the issues raised by Art. 31 in its present form and possible solutions (Section V.).

• Stephan Rammeloo: “Chartervertrag cum annexis – Art. 4 Abs. 2, 4 und 5 EVÜ” – the English abstract reads as follows:

October 6, 2009, the ECJ gave interpretative rulings in case C-133/08 on Article 4 of the EC Convention on the Law Applicable to Contractual Obligations (Rome, 1980). The questions in preliminary proceedings centered round the applicable law to a charter-party contract cum annexis in the absence of choice by the parties (“objective proper law test”), the seperability of the contract, and the connecting criteria of Article 4, subsection 4 in relation to subsections 1, 2 and 5. The main proceedings and the essential observations of the ECJ judgment are followed by a critical analysis as well as some considerations on its potential effects on the interpretation of Article 4 (objective proper law test) and Article 5 (contract on the carriage of goods) of EC Regulation 593/2008 which on 27 December 2009 replaced the 1980 Convention.

• Florian Eichel: “Inhaltskontrolle von AGB-Schiedsklauseln im internationalen Handelsverkehr” – the English abstract reads as follows:

This essay discusses a recent decision of a German Oberlandesgericht (Court of Appeal) which denied enforcement of a US arbitral award on the ground of Art. V (1)(a) New York Convention (NYC). The court deemed a B2B-arbitration clause invalid for substantive unconscionability (s. 307 German Civil Code – BGB). The clause was contained in a Dutch-German franchise form and determined New York as place of arbitration. The essay argues that substantive unconscionability may not simply be based on the remoteness of the place of arbitration from the weaker party’s domicile. Rather, in considering the validity of the clause a court should follow a twofold examination: First, it has to consider the formal unconscionability by means of s. 305c (1) BGB. According to this provision, a clause is invalid if it is of a surprising character, i.e. in no way connected to the negotiations or the execution of the contract. The reference to s. 305c (1) BGB is permissible even under the regime of the NYC as the latter only provides formal requirements for the arbitration agreement itself, but not for the procedural agreement in question designating the place of arbitration and the lex arbitri. If the party fails to prove the surprising character, one can in a second step deem the clause unconscionable pursuant to s. 307 BGB. However, this verdict requires a thorough examination as to whether the arbitral procedure in a whole, and not just the place of arbitration, deprived the defendant of his day in court.

•  Reinhold Geimer on the judgment of the ECJ of 11 June 2009 (C-564/07) as well as the decisions of the German Federal Court of Justice of 5 March 2009 (IX ZB 192/07) and of 20 January 2009 (VIII ZB 47/08): “Einige Facetten des internationalen Zustellungsrechts und anderes mehr im Rückspiegel der neueren Rechtsprechung”
• Nina Trunk: “Anwendbarkeit der Wanderarbeitnehmerverordnung auf die Haftungsbefreiung bei Arbeitsunfällen” – the English abstract reads as follows:

In its ruling VI ZR 105/07 of 15th July 2008 the German Federal Court of Justice had to decide on a case, where an employee of a dutch employer has been injured in a car accident caused by his driving German colleague on a weekend visit to Germany. The crucial question is, if in this case the German regulations, which determine that the civil liability of the employer and/or its employees is excluded in cases of work accidents, applies or if Dutch law, which does not know a corresponding exclusion of liability, is applicable. This recension deals with the mandatory Character of the provisions of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community and their applicability. In accordance with the decision of the German Federal Court of Justice it comes to the conclusion that concerning the question of exclusion of liability, Dutch law applies and explains why this result is compatible with the freedom of services provided in Art. 49 EU Treaty.

•  Peter Behrens: “Anwendung des deutschen Eigenkapitalersatzrechts auf Scheinauslandsgesellschaften” – the English abstract reads as follows:

This is the first decision of a German insolvency court applying the new German legal rules on shareholder loans in case of insolvency of a pseudo-foreign company (i.e. an English private company limited by shares doing business exclusively in Germany). The court based its jurisdiction correctly on Article 3(1)(1) of the European Insolvency Regulation (EIR), because the debtor company’s centre of main interests was clearly situated in Germany. The reasoning on the private international law issues was less convincing however. The court simply applied German law and held the insolvent company’s shareholder liable towards the insolvent company for repayment of a sum which the shareholder had received from the company as redemption of a loan granted by the shareholder to the company. The redemption had occurred in 2007 at a time when the company was already insolvent. Until October 2008, the shareholder-creditor’s liability towards the company resulted from relevant provisions in the GmbHG (Limited Liability Companies Act). Since November 2008, these provisions are, however, transferred to the Insolvency Act and they now establish the voidability of the redemption of a shareholder-creditor’s loan which occurred within one year before the petition for insolvency proceedings was filed. This change of the law may have had an impact upon the highly disputed characterisation of a shareholder-creditor’s liability towards an insolvent company. Before November 2008, it could have been characterised as a matter of company law which should be subject to the “proper law” of the company (in this case: English law). Since November 2008, there may be better reasons for a characterisation as a matter of insolvency law. The court preferred the latter characterization for both, the old and the new law, without justifying its position by adequate reasoning and, what is more, without taking any notice of European Union law. According to Article 4(2)(m) EIR, voidability of a transaction is clearly a question of insolvency law, but Article 13 EIR limits the application of Article 4(2)(m) EIR under certain circumstances which may or may not have been present in this case. The court’s decision therefore suffers from insufficient reasoning.

• Hans Hoyer on the judgment of the Higher Regional Court Munich of 5 December 2008 (33 Wx 266/08): “Nachlassverwaltung durch Betreuer im deutsch-österreichischen Rechtsverkehr””
• Philipp Sticherling: “Türkisches Erbrecht und deutscher Erbschein”  – the English abstract reads as follows:

The author discusses a decision of the Braunschweig district court (Landgericht) in a proceeding concerning the grant of an inheritance certificate. The bequeather has been an Turkish citizen with movable estate in Germany. The District Court has decided that German courts also have jurisdiction for the grant of the inheritance certificate. According to the decision of the District Court, the estate agreement in the consular agreement of 28 May 1929 between the German Empire and Turkey does not command the exclusive jurisdiction of Turkish courts for proceedings concerning the grant of inheritance certificates. The decision has been taken under the provisions of the Act on Voluntary Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit – FGG) that was in effect until 31 August 2009. With the Act on the Reform of the Act on Voluntary Jurisdiction, as from 1 September 2009 the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG) has replaced the Act on Voluntary Jurisdiction. The question of international jurisdiction remains relevant under the new legislation. The author shows the differences between the new procedural rules under the reformed act and the old Act on Voluntary Jurisdiction.

• Zeynep Derya Tarman: “Das neue Staatsangehörigkeitsgesetz in der Türkei” – the English abstract reads as follows:

The article will firstly give an overview of the new Turkish Nationality Act from 29.5.2009, with an emphasis on the reasons for the need of this new Act. Secondly, it will analyze the provisions of the new Turkish Nationality Act pertaining to the acquisition and loss of nationality, and thirdly it will give an insight to the multiple nationality under the new code.

• Hakan Albas/Serdar Nart on the acquisition of real estate by non-residents in Turkey: “Neues zum Erwerb von Grundstücken durch Ausländer in der Türkei”
• Christel Mindach: “Weiterentwicklung des Zivilrechts und Internationalen Privatrechts in Russland” – the English abstract reads as follows:

The “Web portal of Private International Law of Russia” published a range of documents for further development of civil legislation including private international law of Russian Federation. The initiative goes back to two Decrees of the Russian President No. 1108 and No. 1105, dated July 18th, 2008. These Presidential Decrees obliged the “Council for Codification and Improvement of Civil Legislation” jointly with the “Research Centre for Private Law” both attached the President, to prepare a draft for development of civil legislation up to June 1, 2009. This article gives first information especially about this part of draft, dealing with amendment of some provisions of private international law.

• Sergej Kopylov/Marcus A. Hofmann: “Das Verfahren vor dem Wirtschaftsgericht (Arbitragegericht) der Russischen Föderation” – the English abstract reads as follows:

This paper deals with a presentation of the proceedings before the national economic court (arbitration court) of the Russian Federation (RF) in the first instance. Frequently, a Russian and a foreign business partner contract under Russian law and agree on a venue in Russia. Especially in times of financial crisis, the contractors are trying – whether because of liquidity or economic reasons – to turn away from the long-term contracts that have often been entered into before the crisis, which is usually only possible by judicial decision. As a result, the European companies that are active in the Russian Federation are commonly sued by their Russian partners. The emphasis of this paper is based on a view from the perspective of the German defendants, describing the process and details of the procedure and explaining a useful approach in cases where a defendant finds himself before the arbitrage court.

• Peter Kindler on the monograph by Günther H. Roth, Vorgaben der Niederlassungsfreiheit für das Kapitalgesellschaftsrecht. Exigences de la liberté d’établissement pour le droit des sociétés de capitaux, 2010 (including a French translation): “‘Cadbury-Schweppes’: Eine Nachlese zum internationalen Gesellschaftsrecht”
• Heinz-Peter Mansel  on the 80th birthday of Richard M. Buxbaum: “Richard M. Buxbaum zum 80. Geburtstag”
• Erik Jayme/Carl Friedrich Nordmeier on the 2009 meeting of the German-Lusitanian lawyers’ association in Brasília: “Grenzüberschreitende Dimensionen des Privatrechts – Tagung der Deutsch-Lusitanischen Juristenvereinigung in Brasília”
• Zou Guoyong: obituary  in honour of Han Depei