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)

The European Court of Justice handed down judgment in Hassett v South Eastern Board on 2nd October 2008. It doesn’t make for particularly interesting reading, so I’ll be brief. The Irish Supreme Court referred the following question to the ECJ:

Where medical practitioners form a mutual defence organisation taking the form of a company, incorporated under the laws of one Member State, for the purpose of providing assistance and indemnity to its members practising in that and another Member State in respect of their professional practice, and the provision of such assistance or indemnity is dependent on the making of a decision by the Board of Management of that company, in accordance with its Articles of Association, in its absolute discretion, are proceedings in which a decision refusing assistance or indemnity to a medical practitioner practising in the other Member State pursuant to that provision is challenged by that medical practitioner as involving a breach by the company of contractual or other legal rights of the medical practitioner concerned to be considered to be proceedings which have as their object the validity of a decision of an organ of that company for the purposes of Article 22, [point] 2, of [Regulation No 44/2001] so that the courts of the Member State in which that company has its seat have exclusive jurisdiction?

Which the ECJ took to mean:

By that question, the national court is essentially asking the Court whether point 2 of Article 22 of Regulation No 44/2001 is to be interpreted as meaning that proceedings, such as those at issue before the referring court, in the context of which one of the parties alleges that a decision adopted by an organ of a company has infringed rights that it claims under that company’s Articles of Association, concern the validity of the decisions of the organs of a company within the meaning of that provision.

And to which they answered:

Point 2 of Article 22 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that proceedings, such as those at issue before the referring court, in the context of which one of the parties alleges that a decision adopted by an organ of a company has infringed rights that it claims under that company’s Articles of Association, do not concern the validity of the decisions of the organs of a company within the meaning of that provision.

The reasoning, such that it was, centred on the fact that allowing all disputes involving a decision by an organ of a company to come within Article 22(2) of the Brussels I Regulation (which is primarily there, so says the Jenard Report, to prevent conflicting judgments) would mean that it would apply to those disputes where conflicting judgments would not arise. That is beyond the scope of Article 22(2). As the doctors had not challenged the validity of a decision before the national courts (they were instead challenging the process (or lack thereof) of that decision, and so did not come within the defined scope of Art 22(2). Fair point, really.

(Hat-tip to Andrew Dickinson.)

An interesting conference will be hosted in Toulouse, on 17 October 2008, by the Institut de Recherche en droit européen, international et comparé (IRDEIC) of the University of Social  Sciences of Toulouse: “La matière civile et commerciale, socle d’un code européen de droit international privé?“ (The civil and commercial matters, core of a European Code of Private International Law?).

The symposium will focus on the three cornerstones of the EC Private International Law in civil and commercial matters, namely the Rome I, Rome II and Brussels I regulations, evaluating their consistency under the point of view of basic principles, structure and solutions. The underlying question is whether these pieces of European legislation can be constructed as the hard core of a European PIL code, with its own general theory and specific principles and methods, which could be extended to other fields of the conflict of laws, towards the establishment of the area of freedom, security and justice envisaged by the EC Treaty.

A more detailed presentation (in French) of the colloquium, and the complete programme are available on the conference’s webpage. Here’s an excerpt:

Ouverture du colloque: H. Roussillon, Président de l’Université des Sciences Sociale de Toulouse I; B. Beignier, Doyen de la faculté de droit de l’Université de Toulouse I.

Président de séances: M. Bogdan (Université de Lund)

• 9:00 – M. Fallon (Université Catholique de Louvain): “Les éléments d’un code européen de droit international privé”.
• 9:20 – C. Hahn (DG JLS, Commission européenne): “Les objectifs visés et les fondements de la compétence dans les textes de référence”.
• 9:40 – S. Francq (Université Catholique de Louvain): “Les champs d’application (matériel et spatial) dans les textes de référence”.
• 10:00 – Débats
• 11:00 – F. Pocar (Université de Milan): “Le choix des sous catégories et des éléments de rattachement dans les textes de référence”.
• 11:20 – H. Muir Watt (Université Paris I): “L’autonomie de la volonté dans les textes de référence”.
• 11:40 – S. Poillot Peruzzetto (Université de Toulouse I): “L’ordre public et les lois de police dans les textes de référence”.
• 12:00 – Débats

Présidente de séances: H. Gaudemet-Tallon (Université de Paris II)

• 14:00 – C. Kessedjian (Université Paris II): “La relation des textes de référence avec le droit primaire”.
• 14:20 – M. Wilderspin (Commission européenne): “La relation des textes de références avec le droit dérivé (et principalement les directives service et commerce électronique”.
• 14:40 – A. Borrás (Université de Barcelone): “La relation des textes de référence avec les textes internationaux”.
• 15:00 – Débats
• 16:00 – J.S. Bergé (Université de Paris Ouest Nanterre La Défense): “Les textes de référence et la dynamique interprétative de la Cour de justice”.
• 16:20 – L. Idot (Université de Paris II): “Le cas du droit de la concurrence dans les textes de référence”.
• 16:40 – Débats
• 17:00 – Synthèse: P. Lagarde (Université de Paris I).

No participation fee is required. Participants should register before 30 September (see the conference’s leaflet).

(Many thanks to Federico Garau, Conflictus Legum blog)

The papers presented at the Duke University School of Law Symposium on ‘The New European Choice of Law Revolution: Lessons for the United States?‘ have now been published in the Tulane Law Review (Vol. 82, No. 5, May 2008). Here’s the table of contents:

• Ralf Michaels, Introduction – The New European Choice-of-Law Revolution (available on SSRN);
• Patrick J. Borchers, Categorical Exceptions to Party Autonomy in Private International Law (available on SSRN);
• Jan von Hein, Something Old and Something Borrowed, but Nothing New? Rome II and the European Choice-Of-Law Evolution;
• Dennis Solomon, The Private International Law Of Contracts In Europe: Advances And Retreats;
• Symeon C. Symeonides, The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons (available on SSRN: see our dedicated post here);
• Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law (available on SSRN);
• Jens Dammann, Adjudicative Jurisdiction and the Market for Corporate Charters;
• Onnig H. Dombalagian, Choice Of Law and Capital Markets Regulation (available on SSRN);
• Katharina Boele-Woelki, The Legal Recognition of Same-Sex Relationships within the European Union;
• Horatia Muir Watt, European Federalism and the “New Unilateralism”;
• Linda J. Silberman, Rethinking Rules of Conflict of Laws in Marriage and Divorce in the United States: What Can We Learn from Europe?;
• Richard Fentiman, Choice of Law in Europe: Uniformity and Integration;
• William A. Reppy, Jr., Eclecticism in Methods for Resolving Tort and Contract Conflict Of Laws: the United States and the European Union;
• Jürgen Basedow, Federal Choice of Law in Europe and the United States – A Comparative Account of Interstate Conflicts;
• Erin Ann O’Hara – Larry E. Ribstein, Rules and Institutions in Developing a Law Market: Views from the United States and Europe (available on SSRN);
• William M. Richman, A New Breed of Smart Empirically Derived Conflicts Rules: Better Law Than “Better Law” in the Post-Tort Reform Era: Reviewing Symeon C. Symeonides, The American Choice-Of-Law Revolution: Past, Present And Future (2006).

Information on subscribing to the Tulane Law Review can be found here.

For those who could not attend the event, the webcast of the conference is available for viewing on the Duke University’s website, in five parts (RealMedia format):

1. Welcome and Opening Remarks (Dean David F. Levi, Ralf Michaels, and Haller Jackson) and Panel 1: Contract and Tort Law. Moderated by Paul Haagen. Panelists include Jan von Hein, Symeon Symeonides, Dennis Solomon, and Patrick Borchers.
2. Panel 2: Corporate Law. Moderated by Jim Cox. Panelists include Larry Cata Backer, Jens Dammann, and Onnig Dombalagian.
3. Panel 3: Family Law. Moderated by Kathy Bradley. Panelists include Marta Pertegas, Katharina Boele-Woelki, and Linda Silberman.
4. Panel 4: Methods and Approaches. Panelists include Richard Fentiman, Ralf Michaels, and William Reppy, Jr.
5. Panel 5: Internal and External Conflicts, Federalism, and Market Regulation. Panelists include Jürgen Basedow, Mathias W. Reimann, Erin O’Hara, and Larry Ribstein.

(Many thanks to Martin George.)

The Heidelberg Centre for International Dispute Resolution at the Institute for Private International and Comparative Law will host a conference with the topic

“Arbitration and EC Law – Current Issues and Trends”.

The conference will focus on the relations between European civil procedure and arbitration which have been an intensely debated topic among legal scholars and practitioners for a long time. Lately the debate has been fuelled in particular by:

• the upcoming decision of the European Court of Justice which will decide on the availability of anti-suit injunctions for the protection of arbitral agreements (case C-185/07) – on September 4, 2008 GA Kokott proposed in her conclusions not to permit such remedies in the European Judicial Area,
• recent case law in several EC Member States addressing the arbitrability of EC antitrust law,
• the publication of a report, commonly known as the Heidelberg Report, analyzing – in view of the European Commission’s upcoming proposals on possible improvements of the Brussels I Regulation in 2009 – the application of the Regulation in 25 Member States, which proposes to delete the arbitration exception in article 1 no. 2d in order to bring ancillary proceedings relating to arbitration under the scope of the Brussels I Regulation

The conference will take place from 5th to 6th December 2008 in Heidelberg. Here is the conference program:

Friday, Dec. 5, 2 p.m.

1. Free movement of arbitral awards: European challenges

Prof. Gomez Jene, Madrid

2. West Tankers Litigation – the present state of affairs

Att. Prof. H. Raeschke-Kessler, Karlsruhe

3. Articles 81 and 82 EC-Treaty and arbitration

Prof. P. Schlosser, Munich

4. The Regulations Rome I and Rome II: Their impact on arbitration

Prof. T. Pfeiffer, Heidelberg

Dinner

Saturday, Dec. 6, 9.30 a.m.

5. Roundtable: The Brussels I Regulation and arbitration

(Chair: Prof. H. Kronke)

5.1 Findings and proposals of the Heidelberg Report on the Regulation (EC) 44/01

Prof. B. Hess, Heidelberg

5.2 A French reaction

Att. Alexis Mourre, Paris

5.3 An English reaction

Att. VV. Veeder, London

5.4 A Belgian perspective

Prof. H. van Houtte, Leuven

5.5 An Italian reaction

Prof. C. Consolo, Verona.

The conference will end at 12.00.

Further information, in particular on registration and accomodation, can be found at the website of the Institute for Private International and Comparative Law Heidelberg.