Jens Karsten (Brussels/Oslo) has written a paper on recent developments in the field of European passenger law with references to PIL issues. “Im Fahrwasser der Athener Verordnung zu Seereisenden: Neuere Entwicklungen des europäischen Passagierrechts” has been published in the German law journal “Verbraucher und Recht” (VuR) vol. 6/2009, pp. 213 et seq.

The article mainly deals with Regulation (EC) No. 392/2009 on the liability of carriers of passengers by sea in the event of accidents. The Athens Regulation incorporates most of the Athens Convention 2002 (www.imo.org) into the acquis communautaire but postpones the implementation of its Articles 17 and 17bis on jurisdiction and enforcement (deviating from ‘Brussels I’) until such time as the EC has acceded to the Convention.

Beyond the discussion of the Athens Regulation, the paper also presents new references for preliminary rulings and recent decisions of the ECJ linking travel law and PIL. The author refers inter alia to the “Rehder” case (which in the meantime – as we have reported – has been decided). It also introduces the Austrian reference on Art. 15(3) ‘Brussels I’ in the “Pammer“ case (now also Case C-144/09, Alpenhof v. Heller).

Most significant for the development of EU-PIL, the paper raises the question of the interaction of the European Commission proposal of 8 October 2008 for a Directive on Consumer Rights (COM(2008) 614 final) with the ‘Rome I’-Regulation (first discussed in this forum by Giorgio Buono on 9 October 2008: “EC Commission Presents a Proposal for a Directive on Consumer Rights”). The proposal aims at merging four existing directives on consumer rights: Directive 85/577/EEC on contracts negotiated away from business premises; Directive 93/13/EEC on unfair terms in consumer contracts; Directive 97/7/EC on distance contracts; and Directive 1999/44/EC on consumer sales and guarantees. Three of these directives provide for conflict-of-law clauses concerning the scope of EC consumer law (scope clauses). Those clauses, where applicable, have the effect of making, for instance, unfair term control as foreseen in EC law under Directive 93/13/EEC on Unfair Terms in Consumer Contracts possible even when the law of a third country is chosen. Somewhat hidden in its provisions, the proposal would abolish the scope clauses of its predecessor directives. The author assesses the impact of this change in EC-PIL de lege ferenda, taking in particular into account Article 5 and Article 3(4) of  ‘Rome I’, both new provisions compared to the Rome Convention. The choice of law of a third, non-EU-country for seat-only sales would consequently be possible also in those areas of EC consumer law whose application is so far guaranteed by the scope clauses. This significant change is welcomed; however, uncertainty remains whether this consequence has been properly considered in the proposal. The author encourages therefore a discussion on the territorial scope of EC consumer law with regard to passengers’ rights.

The papers presented at the conference on the Rome I Regulation hosted in November 2008 by the University of Venice “Ca’ Foscari” (see here for the webcast) have been published by the Italian publishing house Giappichelli under the editorship of Nerina Boschiero: “La nuova disciplina comunitaria della legge applicabile ai contratti (Roma I)“.

Here’s the table of contents:

Presentazione (N. Boschiero).

Introduction. Considérations de méthode (P. Lagarde).

Parte I: Problemi generali.

• Funzione ed oggetto dell’autonomia della volontà nell’era della globalizzazione del contratto (F. Marrella);
• I limiti al principio d’autonomia posti dalle norme generali del regolamento Roma I. Considerazioni sulla “conflict involution” europea in materia contrattuale (N. Boschiero);
• La legge applicabile in mancanza di scelta dei contraenti (U. Villani);
• Le norme di applicazione necessaria nel regolamento “Roma I” (A. Bonomi);
• A United Kingdom Perspective on the Rome I Regulation (J. Fawcett).

Parte II: Temi specifici.

• La definizione dell’ambito di applicazione del regolamento Roma I: criteri generali e responsabilità precontrattuale (P. Bertoli);
• I contratti di assicurazione tra mercato interno e diritto internazionale privato (P. Piroddi);
• Contratti con i consumatori e regolamento Roma I (F. Seatzu);
• La legge applicabile ai contratti individuali di lavoro nel Regolamento “Roma I” (F. Seatzu);
• Il contratto internazionale di trasporto di persone (G. Contaldi);
• Le relazioni intercorrenti tra il regolamento Roma I e le convenzioni internazionali (in vigore e non) (A. Bonfanti);
• La legge applicabile alla negoziazione di strumenti finanziari nel regolamento Roma I (F.C. Villata);
• La legge regolatrice delle conseguenze restitutorie e risarcitorie della nullità del contratto nei regolamenti Roma I e Roma II (Z. Crespi Reghizzi);
• I contratti relativi alla proprietà intellettuale alla luce della nuova disciplina comunitaria di conflitto. Analisi critica e comparatistica (N. Boschiero).

Osservazioni conclusive (T. Treves).

Title: “La nuova disciplina comunitaria della legge applicabile ai contratti (Roma I)“, edited by Nerina Boschiero, Giappichelli (Torino), 2009, XVI – 548 pages.

ISBN: 978-88-348-9562-7. Price: EUR 50. Available at Giappichelli.

The final question in the Commission’s Green Paper (which, incidentally, deserves praise for its concise and focussed presentation of the issues), covers other suggestions for reform of the Regulation’s rules not falling under any of the previous headings.  It is divided into three headings: Scope, Jurisdiction and Recognition and enforcement, as follows:

8.1. Scope

As far as scope is concerned, maintenance matters should be added to the list of exclusions, following the adoption of Regulation (EC) No 4/2009 on maintenance. With respect to the operation of Article 71 on the relation between the Regulation and conventions on particular matters, it has been proposed to reduce its scope as far as possible.

8.2. Jurisdiction

In the light of the importance of domicile as the main connecting factor to define jurisdiction, it should be considered whether an autonomous concept could be developed.

Further, it should be considered to what extent it may be appropriate to create a non-exclusive jurisdiction based on the situs of moveable assets as far as rights in rem or possession with respect to such assets are concerned. With respect to employment contracts, it should be reflected to what extent it might be appropriate to allow for a consolidation of actions pursuant to Article 6(1). As to exclusive jurisdiction, it should be reflected whether choice of court in agreements concerning the rent of office space should be allowed; concerning rent of holiday homes, some flexibility might be appropriate in order to avoid litigation in a forum which is remote for all parties. It should also be considered whether it might be appropriate to extend the scope of exclusive jurisdiction in company law (Article 22(2)) to additional matters related to the internal organisation and decision-making in a company. Also, it should be considered whether a uniform definition of the “seat” could not be envisaged.With respect to the operation of Article 65, it should be reflected to what extent a uniform rule on third party proceedings might be envisaged, possibly limited to claims against foreign third parties. Alternatively, the divergence in national procedural law might be maintained, but Article 65 could be redrafted so as to allow national law to evolve towards a uniform solution. In addition, an obligation on the part of the court hearing the claim against a third party in third party notice proceedings to verify the admissibility of the notice might reduce the uncertainty as to the effect of the court’s decision abroad.

In maritime matters, it should be reflected to what extent a consolidation of proceedings aimed at setting up a liability fund and individual liability proceedings on the basis of the Regulation might be appropriate. With respect to the binding force of a jurisdiction agreement in a bill of lading for the third party holder of the bill of lading, stakeholders have suggested that a carrier under a bill of lading should be bound by and at the same token allowed to invoke a jurisdiction clause against the regular third-party holder, unless the bill is not sufficiently clear in determining jurisdiction.

With respect to consumer credit, it should be reflected whether it might be appropriate to align the wording of Articles 15(1)(a) and (b) of the Regulation to the definition of consumer credit of Directive 2008/48/EC .

With respect to the ongoing work in the Commission on collective redress , it should be reflected whether specific jurisdiction rules are necessary for collective actions.

8.3. Recognition and enforcement

As far as recognition and enforcement is concerned, it should be reflected to what extent it might be appropriate to address the question of the free circulation of authentic instruments.   In family matters (Regulations (EC) No 2201/2003 and (EC) No 4/2009), the settlement of a dispute in an authentic instrument is automatically recognised in the other Member States. The question arises to what extent a “recognition” might be appropriate in all or some civil or commercial matters, taking into account the specific legal effects of authentic instruments.

Further, the free circulation of judgments ordering payments by way of penalties might be improved by ensuring that the amount fixing the penalty is set, either by the court of origin or by an authority in the Member State of enforcement. It should also be considered to what extent the Regulation should not only permit the recovery of penalties by the creditor, but also those which are collected by the court or fiscal authorities.

Finally, access to justice in the enforcement stage could be improved by establishing a uniform standard form, available in all official Community languages, which contains an extract of the judgment . Such a form would obviate the need for translation of the entire judgment and ensure that all relevant information (e.g. on interest) is available to the enforcement authorities. Costs in the enforcement may be reduced by removing the requirement to designate an address for service of process or to appoint a representative ad litem . In light of the current harmonisation at Community law, in particular Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters , such a requirement does indeed seem obsolete today.

The Commission asks whether the operation of the Regulation could be improved in the ways suggested above.  While different respondents will, no doubt, pick out different elements of these proposals as being significant and deserving of attention, the following conclusions could be drawn:

1. Domicile of individuals (Art. 59)

In terms of the objective of the Regulation in promoting clear and uniform solutions to problems concerning the jurisdiction of Member State courts, it makes no sense for the key concept of “domicile” to be defined, in the case of individuals, by reference to national law, particularly as an autonomous definition has been provided for bodies corporate and unincorporated (Art. 60).  A uniform approach should be adopted for individuals as well.  This could refer to the concept of “habitual residence”, consistently with the Rome I  and Rome II  Regulations, with the possible alternative of “main place of residence”.  These two factors would, broadly speaking, correlate to the second and third factors for bodies corporate etc. (“central administration” , “principal place of business” ).  Nationality, however, should not be adopted as a factor corresponding to the first factor for bodies corporate etc. (“statutory seat” ), as the prospect of being brought before the courts of a country of origin, with which a person may no longer have a close connection, may act as a deterrent to the free movement of persons within the EC.

2. “Seat” of companies (Art. 22(2))

It would, in principle, appear equally desirable to develop a uniform approach to determining the “seat” of a company etc. for the purposes of Art. 22(2).  If such a provision is to be adopted, the “statutory seat” (cf. Art. 60(1)(a), 60(2)) should be favoured over the “real seat” as being more certain and consistent with EC law principles of freedom of establishment.  Continuing differences between the Member States as to the private international law rules to be applied to questions of corporate status and internal management – despite the intervention of the ECJ on more than one occasion  – may, however, make agreement on this point difficult, if not impossible at this stage in the development of private international law in the Community.

3. Rules of special jurisdiction

An additional rule of special jurisdiction for cases concerning title, possession or control of tangible moveable assets (favouring the courts of the place where the asset is physically located at the time that the court becomes seised) would potentially be valuable, particularly in cases involving ships and aircraft.  There may, however, be a risk that the rule could be abused by moving assets so as to create, or remove, jurisdiction of a particular Member State’s courts.  In particular, a party in possession or control of assets may move them to a particular jurisdiction with laws favourable to him and immediately issue proceedings for positive or negative declaratory relief, thereby blocking proceedings in other Member States to claim the asset.  Such tactics may hinder, for example, efforts to recover artworks or cultural artefacts.  As a consequence there would appear a strong argument for limiting any new rule to claims that include a claim to recover possession or control of tangible moveable assets.  The rule should not, in any event, be extended to intangible assets, for which any “location” or situs is artificial and does not demonstrate the necessary close connection.

The special provision in Art. 65 for Germany, Austria and Hungary, excluding the application of Arts. 6(2) and 11 for third party proceedings and substituting certain national rules of jurisdiction, should be deleted, as being incompatible with an EC Regulation intended to have uniform effect.

4. Rules for employment cases

As the Commission suggests, the Glaxosmithkline decision should be partially reversed by allowing an employee who sues two or more employers (whether joint or several) in the same proceedings to bring those proceedings before the courts of the domicile of one of them, provided that the claims are so closely connected that it is expedient to hear them together to avoid the risk of irreconcileable judgments resulting from separate proceedings.

5. Collective redress

The possible development of specific jurisdiction rules for collective redress cases should be considered (outside the present review of the Brussels I Regulation) as part of an overall package of measures designed to improve protection for consumers  and, possibly, other categories of claimants in particular situations (e.g. in anti-trust cases).

6. Recognition and enforcement

The recognition of authentic instruments and court settlements should be addressed, alongside their enforcement, in Chapter IV of the Regulation, as the Commission suggests.

More generally, and importantly, consideration should be given to elaborating in the Regulation what is required of Member States by the obligation in Art. 33 to “recognise” a judgment.  In its judgment in Hoffmann v. Krieg, the ECJ suggested (citing a passage in the Jenard Report) that “[r]ecognition must therefore ‘have the result of conferring on judgments the authority and effectiveness accorded to them in the state in which they were given’” (paras. 10-11).   More recently in Apostolides v. Orams, albeit in the context of proceedings relating to the enforcement of a judgment, the ECJ appeared to qualify that proposition by applying a “correspondence of effects” test (para. 66):

Accordingly, the enforceability of the judgment in the Member State of origin is a precondition for its enforcement in the State in which enforcement is sought (see Case C-267/97 Coursier [1999] ECR I-2543, paragraph 23). In that connection, although recognition must have the effect, in principle, of conferring on judgments the authority and effectiveness accorded to them in the Member State in which they were given (see Hoffmann, paragraphs 10 and 11), there is however no reason for granting to a judgment, when it is enforced, rights which it does not have in the Member State of origin (see the Jenard Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1979 C 59, p. 0048) or effects that a similar judgment given directly in the Member State in which enforcement is sought would not have.

Despite these dicta, it remains unclear whether “recognition” under the Regulation consists only of “formal recognition” of the judgment as an instrument generating or discharging obligations, or having other constitutive effects, or whether it extends (for example) to the effect of a judgment in precluding the re-litigation of claims or issues.    A recent study led by Jacob van de Velden and Justine Stefanelli of the British Institute of International and Comparative Law has confirmed that Member States currently take widely diverging views on these questions. Accordingly, further development of the Regulation’s understanding of the concept of recognition deserves closer attention as part of the present review of the Regulation.

Finally, as to enforcement (see also the earlier post on the proposed abolition of “exequatur“), the Commission’s proposed improvements to the enforcement regime (i.e. creation of a standard form containing all relevant information as to the nature and terms of the judgment) and removal of the requirement (Art. 40(2)) to have an address for service within the jurisdiction) appear sensible.

*****

This is the last of my posts on the current Brussels I review, the initial consultation period for which closes on 30 June 2009.  Even after that date, I would encourage conflictoflaws.net users who take an interest in the Regulation and its application in the Member States to comment here on the issues raised by the Commission’s Green Paper.

8.1. Scope

As far as scope is concerned, maintenance matters should be added to the list of exclusions, following the adoption of Regulation (EC) No 4/2009 on maintenance. With respect to the operation of Article 71 on the relation between the Regulation and conventions on particular matters, it has been proposed to reduce its scope as far as possible.

8.2. Jurisdiction

In the light of the importance of domicile as the main connecting factor to define jurisdiction, it should be considered whether an autonomous concept could be developed.

Further, it should be considered to what extent it may be appropriate to create a non-exclusive jurisdiction based on the situs of moveable assets as far as rights in rem or possession with respect to such assets are concerned. With respect to employment contracts, it should be reflected to what extent it might be appropriate to allow for a consolidation of actions pursuant to Article 6(1). As to exclusive jurisdiction, it should be reflected whether choice of court in agreements concerning the rent of office space should be allowed; concerning rent of holiday homes, some flexibility might be appropriate in order to avoid litigation in a forum which is remote for all parties. It should also be considered whether it might be appropriate to extend the scope of exclusive jurisdiction in company law (Article 22(2)) to additional matters related to the internal organisation and decision-making in a company. Also, it should be considered whether a uniform definition of the “seat” could not be envisaged.With respect to the operation of Article 65, it should be reflected to what extent a uniform rule on third party proceedings might be envisaged, possibly limited to claims against foreign third parties. Alternatively, the divergence in national procedural law might be maintained, but Article 65 could be redrafted so as to allow national law to evolve towards a uniform solution. In addition, an obligation on the part of the court hearing the claim against a third party in third party notice proceedings to verify the admissibility of the notice might reduce the uncertainty as to the effect of the court’s decision abroad.

In maritime matters, it should be reflected to what extent a consolidation of proceedings aimed at setting up a liability fund and individual liability proceedings on the basis of the Regulation might be appropriate. With respect to the binding force of a jurisdiction agreement in a bill of lading for the third party holder of the bill of lading, stakeholders have suggested that a carrier under a bill of lading should be bound by and at the same token allowed to invoke a jurisdiction clause against the regular third-party holder, unless the bill is not sufficiently clear in determining jurisdiction.

With respect to consumer credit, it should be reflected whether it might be appropriate to align the wording of Articles 15(1)(a) and (b) of the Regulation to the definition of consumer credit of Directive 2008/48/EC .

With respect to the ongoing work in the Commission on collective redress , it should be reflected whether specific jurisdiction rules are necessary for collective actions.

8.3. Recognition and enforcement

As far as recognition and enforcement is concerned, it should be reflected to what extent it might be appropriate to address the question of the free circulation of authentic instruments.   In family matters (Regulations (EC) No 2201/2003 and (EC) No 4/2009), the settlement of a dispute in an authentic instrument is automatically recognised in the other Member States. The question arises to what extent a “recognition” might be appropriate in all or some civil or commercial matters, taking into account the specific legal effects of authentic instruments.

Further, the free circulation of judgments ordering payments by way of penalties might be improved by ensuring that the amount fixing the penalty is set, either by the court of origin or by an authority in the Member State of enforcement. It should also be considered to what extent the Regulation should not only permit the recovery of penalties by the creditor, but also those which are collected by the court or fiscal authorities.

Finally, access to justice in the enforcement stage could be improved by establishing a uniform standard form, available in all official Community languages, which contains an extract of the judgment . Such a form would obviate the need for translation of the entire judgment and ensure that all relevant information (e.g. on interest) is available to the enforcement authorities. Costs in the enforcement may be reduced by removing the requirement to designate an address for service of process or to appoint a representative ad litem . In light of the current harmonisation at Community law, in particular Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters , such a requirement does indeed seem obsolete today.

Question 8:

I am grateful to Gian Paolo Romano, Production Editor of the Yearbook of Private International Law, for providing this presentation of the new volume of the YPIL.

Volume X (2008) of the Yearbook of Private International Law, edited by Prof. Andrea Bonomi and Prof. Paul Volken, and published by Sellier Euro­pean Law Publishers in association with the Swiss Institute of Com­parative Law (ISDC) of Lausanne, was put on the market last week.

Volume X, which celebrates the tenth anniversary of the Yearbook, is made up of 35 contributions on the most various subjects authored by scholars and practioners of almost all con­tinents. Its 743 pages make him one of the most considerable collections of PIL essays in English language of recent years. The volume may be ordered via the publisher’s website, where the table of contents and an extract are available for download.

The Doctrine section in­cludes three contributions concerning the Euro­pean judicial area: a first on the revised Lugano Convention on ju­risdiction and the recognition and enforcement of judgments of 30 October 2007, a second on the European jurisdiction rules appli­cable to commercial agents and a third on the recent decision of the European Court of Justice in Grunkin-Paul, a seminal case that opens new perspectives for the application of the recognition principle as opposed to classical conflict rules in the field of international family law. Other original contributions concern damages for breach of choice-of-forum agreements, accidental discrimi­nation in conflict of laws and the recent Spanish regulation of arbitration agreements.

Two Special sections of this volume are devoted, respectively, to the EC Regulation on the law applicable to contractual obligations (Rome I) and to the new Hague Convention and Protocol on maintenance obliga­tions.

• In addition to several contributions of general nature, the special section on Rome I includes detailed analy­ses of the impact that the Regulation will have on the connection of specific cate­gories of contracts (contracts relating to intellectual and industrial property rights, distribution and franchise contracts, financial market and in­su­rance con­tracts), as well as some remarks from a Japanese perspective.

• The special section on maintenance obligations includes insider commen­taries on the two instruments adopted by the Hague Conference on 23 November 2007: the Convention on the International Recovery of Child Support and other Forms of Family Maintenance and the Protocol, which includes rules on the law applicable to maintenance obligations and aims to replace the 1973 Hague Applicable Law Convention.

The National Reports section includes the second part of a detailed study on private international law before African courts, a critical analysis of the new Spanish adoption system and of the conflict of laws issues raised by the Panama­nian business company, two articles on arbitration (in Israel and Romania), and several contributions concerning recent developments in Eastern European coun­tries (Macedonia, Estonia, Lithuania and Belarus). Africa is also at the centre of the report on UNCITRAL activities for international trade law reform in that continent.

The section on Court Decisions includes – together with commentaries on the Weiss und Partner and the Sundelind López decisions of the ECJ – de­tailed analyses of a recent interesting ruling of the French Cour de cas­sation on overriding mandatory provisions and of two Croatian judgments on copyright infringements.

The Forum Section is devoted to the recognition of trusts and their use in estate planning, the juridicity of the lex mercatoria and the use of natio­nality as a connecting factor for the capacity to negotiate.

Here is the full list of the contributions:

Doctrine

• Fausto Pocar, The New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters;
• Peter Mankowski, Commercial Agents under European Jurisdiction Rules. The Brussels I Regulation Plus the Procedural Consequences of Ingmar;
• Koji Takahashi, Damages for Breach of a Choice-of-court Agreement;
• Carlos Esplugues Mota, Arbitration Agreements in International Arbitration. The New Spanish Regulation;
• Gerhard Dannemann, Accidental Discrimination in the Conflict of Laws: Applying, Considering, and Adjusting Rules from Different Jurisdiction;
• Matthias Lehmann, What’s in a Name? Grunkin-Paul and Beyond;

Rome I Regulation – Selected Topics

• Andrea Bonomi, The Rome I Regulation on the Law Applicable to Contractual Obligations – Some General Remarks;
• Eva Lein, The New Rome I / Rome II / Brussels I Synergy;
• Pedro A. De Miguel Asensio, Applicable Law in the Absence of Choice to Contracts Relating to Intellectual or Industrial Property Right;
• Marie-Elodie Ancel, The Rome I Regulation and Distribution Contracts;
• Laura García Gutiérrez, Franchise Contracts and the Rome I Regulation on the Law Applicable to International Contracts;
• Francisco J. Garcímartin Alférez, New Issues in the Rome I Regulation: The Special Provisions on Financial Market Contracts;
• Helmut Heiss, Insurance Contracts in Rome I: Another Recent Failure of the European Legislature;
• Andrea Bonomi, Overriding Mandatory Provisions in the Rome I Regulation on the Law Applicable to Contracts;
• Yasuhiro Okuda, A Short Look at Rome I on Contract Conflicts from a Japanese Perspective;

New Hague Maintenance Convention and Protocol

• William Duncan, The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. Comments on its Objectives and Some of its Special Features;
• Andrea Bonomi, The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations;
• Philippe Lortie, The Development of Medium and Technology Neutral International Treaties in Support of Post-Convention Information Technology Systems – The Example of the 2007 Hague Convention and Protocol;

National Reports

• Richard Frimpong Oppong, A Decade of Private International Law in African Courts 1997-2007 (Part II);
• Santiago Álvarez González, The New International Adoption System in Spain;
• Daphna Kapeliuk, International Commercial Arbitration. The Israeli Perspective;
• Toni Deskoski, The New Macedonian Private International Law Act of 2007;
• Karin Sein, The Development of Private International Law in Estonia;
• Radu Bogdan Bobei, Current Status of International Arbitration in Romania;
• Marijus Krasnickas, Recognition and Enforcement of Foreign Judicial Decisions in the Republic of Lithuania;
• Daria Solenik, Attempting a ‘Judicial Restatement’ of Private International Law in Belarus;
• Gilberto Boutin, The Panamanian Business Company and the Conflict of Laws;

News from UNCITRAL

• Luca G. Castellani, International Trade Law Reform in Africa;

Court Decisions

• Pietro Franzina, Translation Requirements under the EC Service Regulation: The Weiss und Partner Decision of the ECJ;
• Marta Requejo Isidro, Regulation (EC) 2201/03 and its Personal Scope: ECJ, November 29, 2007, Case C-68/07, Sundelind López;
• Paola Piroddi, The French Plumber, Subcontracting, and the Internal Market;
• Ivana Kunda, Two Recent Croatian Decisions on Copyright Infringement: Conflict of Laws and More;

Forum

• Julien Perrin, The Recognition of Trusts and Their Use in Estate Planning under Continental Laws;
• Thomas Schultz, Some Critical Comments on the Juridicity of Lex Mercatoria;
• Benedetta Ubertazzi, The Inapplicability of the Connecting Factor of Nationality to the Negotiating Capacity in International Commerce.

(See also our previous posts on the 2006 and 2007 volumes of the YPIL)

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

It contains the following articles/case notes (including the reviewed decisions):

• Robert Freitag: “Die kollisionsrechtliche Behandlung ausländischer Eingriffsnormen nach Art.9 Abs. 3 Rom I-VO” – the English abstract reads as follows:

The article examines the conditions under which foreign mandatory rules “may be given effect” under article 9 par. 3 of the Rome I-Regulation. Freitag argues that the application of foreign mandatory rules is in theory itself mandatory but that the national judge has a discretion as to the evaluation of the compatibility of the relevant foreign law with domestic values. Another strong emphasis is put on the definition of “the country in which the contract is to be performed”. The author favors an interpretation of art. 9 par. 3 Rome I-Regulation according to which the place of performance is to be determined by the proper law of the contract, resulting in the possibility of a plurality of relevant foreign mandatory rules. Furthermore, Freitag considers the rule to be of a strict and limiting nature so that the national judge may not give effect (in the meaning of the Regulation) to the mandatory provisions of foreign laws other than the one(s) determined pursuant to art. 9 par. 3 Rome I-Regulation. The article concludes with a criticism of the inapt formulation and adverse effects of art. 9 par. 3 of the Regulation.

• Karsten Kühnle/Dirk Otto: “‘Neues’ zur kollisionsrechtlichen Qualifikation Gläubiger schützender Materien in der Insolvenz der Scheinauslandsgesellschaft – Drei Fragen, ein Gesetz, ein Referentenentwurf und ein höchstrichterliches Urteil” – the English abstract reads as follows:

Is a director of a pseudo-foreign company (e.g. a British private company limited by shares) having its centre of main interest in Germany obliged to file a petition for insolvency pursuant to German laws? Which law governs shareholder loans granted to such a company becoming insolvent? Are shareholders of such a company subject to the rules on piercing of the corporate veil developed by German courts if they cause the company’s insolvency by unlawful actions? These three questions have dominated legal discussions in the past five years not only for their practical importance but also for the complexity of issues involved in a pseudo-foreign company’s insolvency, e.g. determination of the company’s COMI and avoidance of forum shopping, qualification of issues which are a matter of company law (lex fori societas) rather than a matter of insolvency law (lex fori concursus) against the background of Article 4 of the European Insolvency Regulation and the impact of the ECJ’s judicature on freedom of establishment. From today’s perspective, it appears that three events have clarified the legal position: (i) The German Reform Act to the Limited Liability Company Act (MoMiG), which came into force on 1^st November 2008, explicitly addresses the question whether a pseudo-foreign company’s director’s duty to file for insolvency is governed by the lex fori concursus rather than the lex fori societas. (ii) In January 2008, the German Federal Ministry of Justice has produced a bill on Rules on Conflict of Laws pertaining to Companies, which deals with shareholder loans and their legal classification from a conflict of laws perspective. (iii) The German Supreme Court has reshaped the legal fundament of piercing of the corporate veil in 2007 in the “Trihotel”-case. This case law needs to be considered when deciding whether shareholders of a pseudo-foreign company can be held personally liable for the company’s insolvency.

• Jochen Glöckner: “Keine klare Sache: der zeitliche Anwendungsbereich der Rom II-Verordnung” – the English abstract reads as follows:

Pursuant to its Art. 31 the Rome II-Regulation shall apply to events giving rise to damage which occur after its entry into force, while Art. 32 Rome II-Reg. determines that the regulation shall apply from 11 January 2009, except for Art. 29, which shall apply from 11 July 2008. Mostly, both provisions are simply paraphrased in a sense that the Regulation has to be applied by the courts from 11 January 2009 to events that occurred after its entry into force. Some scholars, however, tend to equate the entry into force referred to in Art. 31 with the date of application as determined in Art. 32 Rome II-Reg. requiring courts to apply the regulation only to events occurring after 11 January 2009. The wording of the various language versions of the Regulation, the drafting technique of the European legislator as exemplified in Art. 24 Reg. No. 1206/2001 (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ 2001 No L 174/1), Art. 29 Reg. No. 861/2007 (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, OJ 2007 No L 199/1), Art. 26 Reg. No. 1393/2007 (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, OJ 2007 No L 324/79) or Art. 29 Reg. No. 593/2008 (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ 2008 No L 177/6) as well as the legislative history and the purpose of both provisions however indicate, quite to the contrary, that entry into force must not be confused with applicability. That is why the provision in Art. 32 Rome II-Reg. does not amount to a specification of the date of entry into force under Art. 254 para. 1 EC and the Rome II-Regulation consequently entered into force on the twentieth day following the day of its publication. So, from 11 January 2009 on Member States Courts are under a duty to apply the Rome II-Regulation not only to all events giving rise to damage, which occur after the same day, but to all events which occur or have occurred since 20 August 2007.

• Alexander Bücken: “Intertemporaler Anwendungsbereich der Rom II-VO” – the English abstract reads as follows:

According to its Article 32 the essential provisions of the Rome II-Regulation apply from 11 January 2009. Article 31 provides that the Regulation applies to events giving rise to damage which occur after its entry into force. There is uncertainty about the date of the entry into force, because there is no provision concerning it in the Regulation. The prevailing opinion states that the Regulation enters into force as from 11 January 2009. The following observations examine, why this opinion is right and which negative effects it would have if the Rome II-Regulation would enter into force as from an earlier date as the date of its application.

• Andreas Spickhoff on recent decisions of the Federal Court of Justice, the Court of Appeal Koblenz and the Court of Appeal Stuttgart concerning the concurrence of contractual claims and claims based on tort on the level of international jurisdiction and choice of law: “Anspruchskonkurrenzen, Internationale Zuständigkeit und Internationales Privatrecht”

• Stefan Huber: “Ausländische Broker vor deutschen Gerichten – Zur Frage der Handlungszurechnung im internationalen Zuständigkeits- und Kollisionsrecht” – the English abstract which has been kindly provided by the author reads as follows:

The author analyses a judgment of the Court of Appeal of Düsseldorf which granted a claim for damages brought by German investors against a broker situated in New York. Dealing with the questions of jurisdiction and conflict of laws, he agrees with the outcome of the decision but criticises the reasoning of the appellate court. The court assumed jurisdiction because the securities transactions in question had been arranged by a German financial service provider. In the author’s view such a reasoning would lead to an exorbitant jurisdiction of German courts under certain circumstances. He proposes a different line of reasoning based on the place where the damage occured.

• Gregor Bachmann: “Internationale Zuständigkeit bei Konzernsachverhalten” – the English abstract reads as follows:

The number of foreign investors in German stock corporations is rising. If they use their influence for the detriment of the company, the question arises where those investors can be sued. In a case to be decided by the Landgericht Kiel (Trial Court), a German shareholder sued a large French company (France Telecom S.A.) who supposedly had deprived the company of a valuable corporate opportunity and thus diminished the value of the shares. The claim was brought at the seat of the claimant. In applying the rules of the Brussels I Regulation, the court found that it was competent to decide the case. It based its decision on Art. 5 Nr. 3 of this regulation, according to which in matters relating to tort, delict or quasi-delict the defendant may be sued at the place “where the harmful event occurred”. While the court was right to interpret „tort” or „delict” in a broad sense encompassing detrimental shareholder influence, it cannot be followed in its result. Although the European Court of Justice does not give clear guidance as to where the place of occurrence must be located, it clearly holds that it cannot be generally identified with the place where the claimant resides. Therefore, in cases such as the one at hand the place of occurrence must be either the seat of the company or the place where the shares are stored. Since the latter is just a matter of chance, it must be rejected. The proper place to sue foreign shareholders rather is the place where the company’s seat is located. This is in accordance with the general aim of the Brussels Regulation to avoid a splitting-up of jurisdictions and not to unduly favour the claimant.

• Stefan Kröll on a decision of the German Federal Court of Justice dealing with the principle of venire contra factum proprium in the context of the declaration of enforceability of foreign arbitral awards: “Treu und Glauben bei der Vollstreckbarerklärung ausländischer Schiedssprüche”

• Jan von Hein on a decision of the Austrian Supreme Court of Justice dealing with the ordering of  protective measures with regard to German adults: “Zur Anordnung von Maßnahmen zum Schutz deutscher Erwachsener durch österreichische Gerichte”

• Peter Mankowski on the final decision of the Dutch Hoge Raad in the “Leffler-case”: Übersetzungserfordernisse und Zurückweisungsrecht des Empfängers im europäischen Zustellungsrecht – Zugleich ein Lehrstück zur Formulierung von Vorlagefragen”

The fourth issue of the Revue Critique de Droit International Privé was just released.

It contains two articles. Unfortunately, none of them comes with an abstract in English.

The first is a presentation of the Rome I Regulation by emeritus Professor Paul Lagarde and Aline Tenenbaum, who lectures at the Faculty of Law of Paris XII University.

Belgian Professor Marc Fallon is the author of the second, which deals with The Posting of Workers in Europe (Le détachement européen des travailleurs, à la croisée de deux logiques conflictualistes).

The table of contents can be found here , but articles of the Revue Critique cannot be downloaded.

The first issue of French Journal du Droit International (also known as Clunet) will shortly be released. It contains several articles dealing with conflict issues.

The topic of the first two is the 2008 Rome I Regulation on the law governing contractual obligations. First, Hughes Kenfack, a professor at Toulouse University, wonders whether the Regulation will function like a steady vessel or will be unable to avoid the reefs (Le règlement Rome I, navire stable aux instruments efficaces de navigation ?). The English abstact reads:

The Regulation on the Law Applicable to Contractual Obligations (« Rome I ») was adopted after five years of preparatory work. It supersedes the Rome Convention for contracts concluded after the 17th of September 2009, and works harmoniously within a framework of other Regulations including « Brussels I » and « Rome II ». Its purpose is to reinforce predictability and security in legal solutions to disputes while safeguarding a measure of flexibility. While upholding certain solutions imposed by the Rome Convention, the new text introduces some well met changes, notably regarding the determination of the applicable law in the absence of choice by the parties. The outcome will now be more predictable for most international commercial contracts.
In the main, as a metaphor in the maritime field, the « Rome I » Regulation functions like a steady vessel with effective instruments of navigation. With the guiding light of the Court of justice of the European Communities, it should allow to avoid the reefs and lead to safe harbour.

In the second article, Stephanie Francq, a professor of law at the Catholic University of Louvain (Belgium), presents the changes introduced by the new legislation (Le Règlement Rome I. De quelques changements…). The abstract reads:

EU Regulation n° 593/2008 (« Rome I ») harmonises conflicts-of-law rules in the area of contract law. The Regulation, which replaces the Rome Convention, applies to contracts entered into as from December 17, 2009. This article analyses in details the main changes brought about by the Regulation and reflects on the consequences of its adoption at EU level. In turn, it inquires into the existence of a logical and theoretical underpinning for the new rules. Finally, it highlights the particular influence exercised by certain Member States in the process leading to the adoption of the Regulation because of their opt-out from title IV of the EC Treaty.

The third article is a short report by Hélène Péroz (Caen University) on Certifying Authorities for European Enforcement Orders after a recent French Decree (Les autorités certificatrices de titre exécutoire européen. A propos du Décret n°2008-484 du 22 mai 2008). Here is the English abstract:

Decree n° 2008-484 regarding proceedings before the French Cour de cassation amends the list of authorities in charge of certifying European Enforcement Orders. French notarial acts will from now on be certified by the notary keeping the original document.
Decisions will also henceforward be certified by the chief registrar of the Court, choice which seems in contradiction with Regulation (EC) N° 805/2004 the decree is supposed to implement and therefore contrary to law.

Finally, the Journal offers two articles on international commercial law.

The first is the written version of the Lalive Lecture that Pierre Mayer, a professor of law at Paris I University and a partner at Dechert, gave in Geneva on Contract Claims and Jurisdiction Clauses in Investment Treaties (Contract Claims et clauses juridictionnelles des traités relatif à la protection des investissements).

The drafting of the dispute resolution clause contained within most investment treaties varies from one treaty to another. Certain clauses limit the offer of arbitral jurisdiction (addressed by each State party to the investors of the other State parties) to claims based on a breach of the substantive clauses of the treaty (treaty claims). Other clauses are drafted in more general terms, but arbitral tribunals limit their scope and exclude, here as well, claims based on a breach of the investment contract (contract claims). In these two cases, requests of the investors which are based on the same facts and seek the same relief – compensation for the loss suffered due to the host state – have to be therefore submitted to different tribunals, which results in injustice and contradictions. No theoretical argument, based in particular on the alleged necessity to distinguish between State legal order and international legal order, justifies such an unacceptable result in practice.

The second is the second part of a piece on The New International Oil Exploration and Sharing Agreements in Libya (the first part was published in the first issue of the 2008 volume of the Journal) by professor de Vareilles-Sommières and attorney Anwar Fekini.

Concluding the previously undertaken study on the legal regime of the exploration and production sharing agreements (EPSAs) entered into by the Libyan National Oil Company with foreign oil companies since 2005 (cf. JDI 2008, p. 3 for its first part), this second part of the article focuses on te rights and obligations deriving from the EPSA. A distinction has to be made between the main contract regarding the exploration or production on the one hand, and auxiliary legal acts such as the Bid Package or other agreements which are annexes to the EPSA like the letter of guarantee, the Shareholders agreement and the Joint operating agreement, on the other hand. The EPSA in itself appears to be a sui generis agreement, neither a concession, nor a works contract, from which derive a number of obligations (payment of bonus, setting up of managing bodies, lifting of oil portion by each party…), as well as a number of rights including a right of property over the oil produced. The article then considers, in order to assess their legal consequences, the four possible occurrences looming for better or worse over the EPSA (commercial discovery, breach of contract, change of circumstances, differences between parties). Regarding auxiliary legal acts, emphasis is lain on coordinating each of them with the main contract and on sorting out problems this coordination is likely to raise.

Recently, the January/February issue of the German legal journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was released.

It contains the following articles/case notes (including the reviewed decisions):

• H.-P. Mansel/K. Thorn/R. Wagner: “Europäisches Kollisionsrecht 2008: Fundamente der Europäischen IPR-Kodifikation” – the English abstract reads as follows:

The article gives an overview on the developments in Brussels in the judicial cooperation in civil and commercial matters from September 2007 until October 2008. It summarizes the current projects in the EC legislation and presents some new regulations as the regulations on the law applicable to contractual and non-contractual obligations and the regulation on the service of documents. Furthermore, it refers to the national German laws as a consequence of the new European instruments. With regard to the ECJ, important decisions and some pending cases are presented. The article concludes with an outline of the European position regarding the Hague Conference and some Conventions, with regard to which the competence is split between the EC and its member states.

• P. Mankoswski: “Ist eine vertragliche Absicherung von Gerichtsstandsvereinbarungen möglich?” – the English abstract reads as follows:

Under the Brussels I regime, the value of agreements on jurisdiction as a means of guaranteeing legal certainty is severely challenged by Turner because the anti-suit injunction as the instrument to enforce agreements on jurisdiction has been inhibited in European cases. Yet this might leave room to look for other tools of enforcement. At least in England, damages have become a big issue inosfar as agreements on jurisdiction can be regarded as ordinary contract terms and their breach would thus amount to a breach of contract. Liquidated damages clauses, clauses stipulating for a reimbursement of costs and penalty clauses could be the next steps. All claims which directly or indirectly sanction a claim not to sue in a forum derogatum militate against the ratio underpinning the inhibition of anti-suit injunctions since a right not to be sued abroad is not recognised under the Brussels I regime. If there is no primary claim, consequentially there cannot be a secondary claim sanctioning it. But, notwithstanding a closer check under the law against unfair contract terms, penalty clauses survive this test since they are established by a separate contractual promise. Insofar as claims for the breach of an agreement on jurisdiction are permitted such claims ought to be pursued in the forum prorogatum.

• A. Flessner: “Die internationale Forderungsabtretung nach der Rom I-Verordnung” – the English abstract reads as follows:

The paper explains the assignment of claims under Article 14 of the Regulation Rome I. The relationship between assignor and assignee is to be governed by the law applicable to the contract between them and the position of the debtor is to be determined by the law governing the assigned claim. Moreover, the law applicable to the relationship between assignor and assignee is meant to govern the proprietary aspects of the assignment, which opens these to choice of law by the parties; this inevitably includes the assignment’s effect on third parties – an issue highly controversial before and in the making of the Regulation. The author analyzes and welcomes the new set up and discusses its consequences for a number of issues. He pleads for letting the new law prove itself in practice and for making only cautious use of the special review clause on the third party effects in Article 27 of the Regulation.

• W. Hau on two decisions of the Higher Regional Court Stuttgart (5 November 2007 – 5 U 99/07) and the Higher Regional Court Munich (17 April 2008 – 23 U 4589/07) dealing with the requirements of jurisdiction agreements under Art. 23 Brussels I as well as the determination of the place of delivery in terms of Art. 5 Nr. 1 (b) Brussels I in the case of contracts involving carriage of goods: “Gerichtsstandsvertrag und Vertragsgerichtsstand beim innereuropäischen Versendungskauf”(Remark: The question whether – in the case of contracts involving carriage of goods – the place where under the contract the goods sold were delivered or should have been delivered is to be determined according to the place of physical transfer to the purchaser, or according to the place at which the goods were handed over to the first carrier for transmission to the purchaser has been referred to the ECJ by the German Federal Supreme Court for a preliminary ruling: See C-381/08 (Car Trim GmbH v KeySafety Systems SRL and our previous post which can be found here.)

• O. L. Knöfel on mutual assistance with regard to taking evidence in German-Turkish cross-border proceedings (Higher Regional Court Frankfurt, 26 March 2008 – 20 VA 13/07): “Beweishilfe im deutsch-türkischen Rechtsverkehr”

• M. Fehrenbach on a decision of the German Federal Supreme Court (29 May 2008 – IX ZB 102/07) holding that the opening of main insolvency proceedings by a German court is at least provisionally ineffective if the court was aware that main insolvency proceedings had been opened already in another Member State under the European Insolvency Regulation: “Die prioritätsprinzipwidrige Verfahrenseröffnung im europäischen Insolvenzrecht”

• H. Roth on a decision of the Federal Supreme Court (2 April 2008 – XII ZB 134/06) dealing with the question whether interim decisions according to Art. 15 (1) lit. b Brussels II bis can be challenged: “Zur Anfechtbarkeit von Zwischenentscheidungen nach Art. 15 Abs. 1 lit. b EuEheVO”

• R. Geimer: “Notarielle Vertretungsbescheinigungen aus ausländischen Unternehmensregistern und Sonstiges mehr aus dem internationalen Urkundsverfahrensrecht” (OLG Schleswig, 13.12.2007 – 2 W 198/07)

• E. Eichenhofer: “Einwohnerrenten im öffentlich-rechtlichen Versorgungsausgleich” (BGH, 6.2.2008 – XII ZB 66/07)

• P. Huber on a decision of the Austrian Supreme Court of Justice (19 December 2007 – 9 Ob 75/07f) dealing with the interpretation of Art. 39 (2) CISG: “Rügeversäumnis nach UN-Kaufrecht”

• M. Weller: “Ausländisches öffentliches Recht vor englischen Gerichten (Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd., [2008] 1 All E.R. 1177)” – the English abstract reads as follows:

In its recent action to recover certain antiquities of its national heritage from the current possessor, the Barakat Galleries Ltd. in London, the Government of the Islamic Republic of Iran found itself confronted, by the court of first instance, with the declaration that any claim depending on the legal effects of Iran’s legislation to protect its national heritage must fail for the sole reason that domestic courts would not enforce foreign public law. The Court of Appeal now reversed this holding and thereby approximated to the international consensus the English conflicts rules on the application of foreign public law to incidental questions of patrimonial claims. Most interestingly, the Court of Appeal applied this new finding not only to the claim for recovery on conversion on the basis of a proprietary interest, but also on the basis of a mere possessory interest, and this possessory interest may even arise from foreign public law, for example, the obligation of a finder of a cultural good in the ground of Iran to hand over this object to the competent authorities. English choice of law methodology, coupled with the English substantive law of conversion, therefore now seems to advance foreign interests in the protection of a state’s cultural heritage to a surprising extent.

• C. Mindach: “Zum Stand der IPR-Kodifikation in der GUS” – the English abstract reads as follows:

The members of the Commonwealth of Independent States (CIS) adopted in the course of the last years new regulations on Private International Law. In the codification process, they mainly acted on the recommendations of the Interparliamentary Assembly of the CIS (IPA CIS), regulating the norms in this field within their new Civil Codes. Only three CIS members therefore enacted special laws. The Model Laws and Codes of IPA CIS have no compulsory nature; they are rather designed to give aid for the national legislation. The short overview shows the status and sources of the relevant national legislative acts.

Further, this issue contains the following materials:

Civil Code of the Republic of Armenia – Section 12 – Private International Law (”Zivilgesetzbuch der Republik Armenien – Abschnitt 12 – Internationales Privatrecht”)

As well as the following information:

• E. Jayme/C. F. Nordmeier report on the session of the German-Lusitanian Lawyers’ Association in Heidelberg: “Die Person im Rechtssystem – Sachnormen und Internationales Privatrecht – Tagung der Deutsch-Lusitanischen Juristenvereinigung in Heidelberg”

• J. H. Mey reports on the conference on the occasion of the foundation of the International Investment Law Centre Cologne (IILCC): “Aktuelle Fragen des internationalen Investitionsschutzrechts – Gründungsveranstaltung des International Investment Law Centre Cologne (IILCC)”

A Conference on Punitive Damages, organised by the Institute for European Tort Law, was held last Monday in Vienna. Aiming to study the nature, role and suitability of punitive damages in tort law and private law in general, this one-day conference got together a panel of scholars and practitioners from different countries: some where punitive damages are approved (England, the United States and South Africa), as well as others (France, Germany, Italy, Spain, Hungary and the Scandinavian countries) where they are rejected -at least, formally rejected. The position of EU law was considered too. The Conference also included a report on punitive damages from a Law and Economics perspective, another on the the insurability of such damages, and a brief presentention from a Private International Law point of view. The Conference will be published soon in a book titled “Punitive Damages: Common Law and Civil Perspectives” (H. Koziol and V. Wilcox eds).

As a PIL academic with a continental education, and also because I have already worked on the topics of service of process of punitive damages claims and the recognition of foreing punitive damage awards, the most interesting panels for me were those dedicated to England and USA and to the evolution of the figure in both jurisdictions. In this respect, a common feature in the recent past is the trend to rationalize and restrict the pronouncements of punitive damages. The constitutionaly of punitive damages has been (and is being) discussed in the USA, given the fact that despite their proximity to criminal issues, they are granted without the guarantees required in criminal contexts. In fact, a change is already taking place under 14th Amendment of the Constitution: the due process clause is being used in order to derive substantial and procedural limits to condemnations of punitive damages. The formula is articulated through judicial decisions of higher courts that correct those of lower courts. Several decisions can be pointed out as milestones: BMW of North America v. Gore (1996); State Farm Mutual Automobile Insurance Co v. Campbell et al. (2003); and Philip Morris v. Williams (2007). In the first decision the Federal Supreme Court ruled that the amount of the punitive damages award was disproportionate, and impossible that the defendant could have foreseen them as a result of his conduct: for these reasons the award would be contrary to the due process clause. Based on this finding, the Supreme Court proceeded to set three criteria for studying the constitutional compatibility of punitive damages: the degree of reproach of the defendant’s conduct; the reasonableness of the relationship between the amount of compensatory damages and punitive damages; and the size of criminal penalties for comparable conduct. In State Farm v. Campbell, the Supreme Court set a rule concerning the ratio of punitive damages to compensatory damages: the former should not exceed the amount resulting of multiplying the latter by a figure greater than 0 and less than 10 (rule of “single-digit multiplier”). The Court added that the wealth of the agent causing the damage should not be taken into account; and rejected the so-called “total harm theory”, under which when sentencing to punitive damages, damages that could have been suffered by victims other than the applicant’s are also to be considered.

Also in the UK punitive or exemplary damages have been called into question: the Law Commission impact study started in 1993 and completed in 1997 gives proof. But in fact, the restrictive pattern was identified in England long before the 90, and its results are more intensive than those reported for USA. Already in 1964, in the case Rooker v. Barnard, exemplary damages were described as “unusual remedy” that should be restricted as far as possible (meaning, if permitted by the respect due to the precedent). This will has lead to what sometimes may seem an excessive limitation: it is striking that a demand for punitive damages will not prosper in cases highly reprehensible according to current parameters, such as discrimination based on sex.

A better knowledge and understanding of punitive damages is certainly required when it comes to PIL. One of the main differences between the two major current civil liability models (those of Anglo-Saxon origin, and the so-called “civil” systems) lies in the fact that where the “civil” systems limit the function of civil liability to repairing or compensating for damages, the commn-law model admits other purposes: sentences must show that damaging conduct is not worth the risk (tort does not pay) and discourage its repetition. The relationship between civil liability and compensation, and nothing more than compensation, is so deeply rooted in the Continent, that it not only excludes the possibility of pronouncing sentences of punitive damages in domestic cases: the idea is projected beyond, to cross-border cases. European jurisdictions have therefore refused recognition of foreign judgments awarding punitive damages, arguing that it would be contrary to public forum. In some countries even service of process of a claim raised in the USA has been refused, thus denying basic cooperation with foreing justice. Nevertheless, we can not talk of a unique, unanimous attitude throughout Europe: whilst recognition of a USA punitive damage award has been rejected in both Germany and Italy, Greece (lower Greek courts) and Spain have reacted the other way round.

I seriously doubt whether German or Italian posture could still be held against an English request of service of process, or a request for recognition of an English punitive damage award. Nowadays, service of process cannot be refused: Regulation 1393/07 applies, and there is no escape device (the public policy clause is no longer included). As for recognition, the scene is a little bit more complicated. Two EC Regulations may apply. The ordre public exception has disappeared in Regulation 805/04. It still survives under EC Regulation 44/01: but this that does not mean that the public policy clause will easily be applied. On the contrary: we are in a European context; and mutual trust prevails on European contexts. In this respect, we should also bear in mind the interesting development undergone by the punitive damages issue in the “Rome II” preparatory works: firstly, punitive damages where said to be contrary to a Community public policy; that is, the Community (the Commission) itself backed the doctrine against punitive damages. Nevertheless, this position was later abandoned, and replaced for a nuanced solution: I quote “Considerations of public interest justify giving the courts of the member States the possibility, in exceptional circumstances, of applying exceptions based on public policy (…). In particular, the application of a provision of the law designated by this Regulation which would cause non-compensatory, exemplary or punitive damages of an excessive nature to be awarded may, depending on the circumstances of the case and the legal order of the member State of the court seised, be regarded as being contrary to the public policy (ordre public) of the forum”.

The French publisher Dalloz has recently published a very rich collection of essays in honor of Hélène Gaudemet-Tallon, Professor Emeritus at the University of Paris II and Associate Member of the Institut de Droit International, one of French leading scholars in the field of conflicts of laws and jurisdictions (among her recent works, see Le pluralisme en droit international privé, Richesses et faiblesse (le funambule et l’arc en ciel), General Course held in 2005 at the Hague Academy of International Law, and the forthcoming fourth edition of her authoritative book on the Brussels I reg., Compétence et exécution des jugements en Europe).

The volume, Vers de nouveaux équilibres entre ordres juridiques. Liber amicorum Hélène Gaudemet-Tallon, includes 50 articles on almost all fields of Private International Law, written by leading academics.

Here’s the table of contents:

LE PLURALISME NORMATIF: DE LA COMPARAISON A LA COORDINATION

• Ancel, Jean-Pierre, L’invocation d’un droit étranger et le contrôle de la Cour de cassation
• Basedow, Ju?rgen, La recherche juridique fondamentale dans les instituts Max Planck
• Bermann, George A., La concertation réglementaire transatlantique
• Borra?s, Alegri?a, La fragmentation des sources de droit international privé communautaire, le cas de la responsabilité nucléaire
• Fauvarque-Cosson, Be?ne?dicte, Droit international privé et droit comparé : brève histoire d’un couple à l’heure de l’Europe
• Foyer, Jacques, Diversité des droits et méthodes des conflits de loi
• Herzog, Peter E., Le début de la ” révolution ” des conflits de lois aux États-Unis et les principes fondamentaux de la proposition ” Rome II “, y a-t-il un ” parallélisme inconscient ” ?
• Idot, Laurence, À propos de l’internationalisation du droit, réflexions sur la Soft Law en droit de la concurrence
• Kessedjian, Catherine, Le droit entre concurrence et coopération

L’UNIVERSALISATION DU DROIT ET DU CONTENTIEUX

• Ancel, Bertrand; Watt, Horatia Muir, Les jugements étrangers et la règle de conflit de lois, chronique d’une séparation
• Audit, Bernard, Observations sur la convention de La Haye du 30 juin 2005 relative aux accords d’élection de for
• Cachard, Olivier, La force obligatoire vis-à-vis du destinataire des clauses relatives à la compétence internationale stipulées dans les connaissements : plaidoyer pour un renouveau des conside?rations maritimistes
• Cadiet, Loi?c, Les sources internationales de la procédure civile française
• Dutheil de la Roche?re, Jacqueline, Sanctions internationales contre les personnes et respect des droits fondamentaux
• Fallon, Marc, L’applicabilité du règlement ” Bruxelles I ” aux situations externes après l’avis 1/03
• Gannage?, Le?na, À propos de l'” absolutisme ” des droits fondamentaux
• Gannage?, Pierre, Regards sur les compétences judiciaires exclusives
• Guinchard, Serge, Entre identité nationale et universalisme du droit : l’idée et le processus d’introduction d’un recours collectif en droit français
• Huet, Andre?, Le nouvel article 15 du Code civil
• Jessurun d’Oliveira, Hans Ulrich, Turmoil Around a Naturalisation Decree, or, How the Dutch Cabinet stumbled over a Pebble
• Kerameus, Konstantinos D., La convention de Bruxelles et l’harmonisation par la jurisprudence en Europe: libres propos sur la convention de Bruxelles
• Kreuzer, Karl, International Instruments on Human Rights and “Shariah” Law
• Loon, Hans van, Vers un nouveau modèle de gouvernance multilatérale de la migration internationale: re?flexions a? partir de certaines techniques de coope?ration de de?veloppe?es au sein de la Confe?rence de La Haye
• Niboyet, Marie-Laure, Contre le dogme de la lex fori en matière de procédure
• Pataut, E?tienne, Notifications internationales et règlement ” Bruxelles I “
• Vareilles-Sommie?res, Pascal de, La compétence internationale de l’Espace judiciaire européen

LA PRESERVATION DES VALEURS LOCALES

• Gautier, Pierre-Yves, La contrariété à l’ordre public d’une décision étrangère, échec à sa reconnaissance ou son exequatur
• Kinsch, Patrick, La “sauvegarde de certaines politiques législatives”, cas d’intervention de l’ordre public international ?
• Mayer, Pierre, L’étendue du contrôle, par le juge étatique, de la conformité des sentences arbitrales aux lois de police

L’INTEGRATION REGIONALE, ESPACE D’EXPERIMENTATION DU PLURALISME

• Lagarde, Paul, La reconnaissance, mode d’emploi
• Lequette, Yves, De Bruxelles à La Haye : re?flexions critiques sur la compe?tence communautaire en matie?re de droit international prive?
• Pironon, Vale?rie, Les pratiques commerciales déloyales entre droit international privé et droit communautaire
• Pluyette, Ge?rard; Moneger, Franc?oise, Quelques aspects récents de la jurisprudence de la Première chambre civile en matière de droit communautaire international
• Pocar, Fausto, Faut-il remplacer le renvoi au droit national par des règles uniformes ?
• Poillot-Peruzzetto, Sylvaine, Le défi de la construction de l’espace de liberté, de sécurité et de justice
• Re?mery, Jean-Pierre, Aspects maritimes du droit international privé communautaire
• Struycken, Teun, L’ordre public de la Communauté européenne
• Vrellis, Spyridon, “Abus” et “fraude” dans la jurisprudence de la Cour de Justice des Communautés européennes

LE CONTRAT ET LA FAMILLE AU CŒUR DES EQUILIBRES ENTRE ORDRES JURIDIQUES

• Azzi, Tristan, L’office du juge dans la mise en œuvre de la convention de Rome du 19 juin 1980 sur la loi applicable aux obligations contractuelles
• Bogdan, Michael, Foreign Public Law and Article 7 (1) of the Rome Convention : Some Reflections from Sweden
• Bucher, Andreas, L’intérêt de l’enfant pénètre la convention sur l’enlèvement
• Courbe, Patrick, L’influence des réformes du droit de la famille sur le droit international privé
• Hartley, Trevor C., The Proposed “Rome I” Regulation : Applicable Law in the Absence of Choice (Article 4)
• Jacquet, Jean-Michel, Le principe d’autonomie entre consolidation et évolution
• Lando, Ole, Choice of “Lex Mercatoria”
• Morse, Robin, Choice of Law, Territoriality and National Law : the Case of Employment
• Pauknerova?, Monika, The “contrat  sans loi” in Czech and European Private International Law
• Revillard, Marie-L., L’harmonisation du droit international privé de la famille dans la pratique notariale
• Siehr, Kurt, Divorce of Muslim Marriages in Secular Courts
• Teyssié, Bernard, La loi applicable aux accords transnationaux d’entreprise ou de groupe

Title: Vers de nouveaux équilibres entre ordres juridiques – Liber amicorum Hélène Gaudemet-Tallon. May 2008 (886 pages).

ISBN : 978-2-247-07910-0. Price: EUR 98. Available from Dalloz.

(Many thanks to Gilles Cuniberti and Etienne Pataut)