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Out now: Hannah L. Buxbaum, Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict
The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).
Here is an overview kindly provided by the author:
The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.
The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.
The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.
Highly recommended!
More information can be found here.
Rivista di diritto internazionale privato e processuale (RDIPP) No 2/2019: Abstracts
The second issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:
Adrian Briggs, Professor at Oxford University, Brexit and Private International Law: An English Perspective (in English)
The effect of Brexit on private international law in England will depend on the precise terms on which the separation is made. However, if no comprehensive withdrawal agreement is concluded and adopted, the result will be that private international law in the United Kingdom will revert to its original common law structure. This will make the law and practice of dispute resolution more effective in some respects, and more problematic in others. While it is regrettable that so much time and labour has to be spent on planning for a future which the politicians are incapable of defining, it does allow the distinctions between common law legal thinking, and European legal principles, in the field of private international law to be compared and understood more clearly than they have been for many years.
Burkhard Hess, Director of the Max Planck Institute Luxembourg for Procedural Law, Protecting Privacy by Cross-Border Injunction (in English)
Injunctive relief is of paramount importance in the protection of privacy, especially in the context of the Internet. In the cross-border setting, injunctions entail specific problems: on the one hand, jurisdiction may lie with many courts – often worldwide due to the ubiquity of the Internet. On the other hand, injunctions operate with an extraterritorial effect, ordering or prohibiting conduct outside of the State where the court issuing the order is located. Cross-border injunctive relief does not only raise issues of jurisdiction and territorial scope: in fact, additional problems relate to its enforcement. Furthermore, the need may arise to adapt the injunction to an equivalent measure in the State of enforcement. This paper addresses the problems of cross-border injunctive relief from the perspectives of jurisdiction and territorial scope, as well as of recognition and enforcement. While actions for damages and for injunctive relief are regulated in similar ways, the Author of this paper demonstrates that the specific circumstances and necessities that characterize injunctive relief warrant additional and specific solutions.
Chiara E. Tuo, Associate Professor at the University of Genoa, The Consequences of Brexit for Recognition and Enforcement of Judgments in Civil and Commercial Matters: Some Remarks (in English)
This article aims at addressing some questions regarding the impact of Brexit on recognition and enforcement of judgments in civil and commercial matters with a view to investigating the rules applicable, first, in the case that Brexit occurs without any withdrawal agreement (“hard Brexit”) and, second, regardless of whether such an agreement will be actually entered into, in the context of a future and renewed judicial cooperation relationship between the EU and UK. To this end and in relation to the first part of the analysis, the relevant passages of both the EU Commission’s guidelines and UK statutory instruments dealing with the issue of recognition and enforcement of judgments are taken into exam and compared the ones with the others in order to assess the different extent to which they provide for the continuous post-Brexit application of the existing EU instruments. On the other hand, and in relation to the second part of the article, the options currently available for a future EU-UK cooperation are considered with the purpose of shedding some light on their respective main advantages and disadvantages.
In addition to the foregoing, the following comments are featured:
Cinzia Peraro, Post-Doctoral Fellow at the University of Verona, L’istituto della kafala quale presupposto per il ricongiungimento familiar con il cittadino europeo: la sentenza della Corte di giustizia nel caso S.M. c. Entry Clearance Officer (Kafala as a Prerequisite for Family Reunification with a European Citizen: The Judgment of the Court of Justice in S.M. v. Entry Clearance Officer; in Italian)
The family reunification of a European citizen and a foreign minor entrusted to him by kafala has been addressed by a recent judgment of the Grand Chamber of the Court of Justice on the notion of direct descendant pursuant to Directive 2004/38 concerning the free movement of Union citizens and their family members. The Italian judges have also dealt with the issue of the recognition of this institute, widespread in most Islamic countries, in a variety of situations, where the best interests of the child and the European courts’ decisions have been considered. Domestic jurisprudence appears to be in line with the interpretation given by the judges of Luxembourg, which nevertheless leaves the question of the unequal treatment between Italian citizens and third country nationals unresolved.
Mariangela La Manna, Post-Doctoral Fellow at the Università Cattolica del Sacro Cuore, The ECHR Grand Chamber’s Judgment in the Naït-Liman Case: An Unnecessary Clarification of the Reach of Forum Necessitatis Juridsdiction? (in English)
The Grand Chamber judgment in the Naït-Liman v. Switzerland case is certainly a much anticipated one. Its outcome had, however, long been foreshadowed by commentators and practitioners alike. The decision confirmed the 2016 Chamber’s judgment by holding that the Swiss Federal Tribunal’s decline of jurisdiction in a civil case involving reparation for torture committed outside the territory of Switzerland by foreign authorities against a foreign national did not amount to a violation of Article 6(1) ECHR. However, the Court’s reasoning in the case under review is susceptible of being criticized in more than one respect. The compatibility of the conduct of the Swiss judiciary with Article 6(1) ECHR is dubious to say the least, even more so since the Federal Tribunal’s restrictive interpretation of the requirements for the application of forum necessitatis jurisdiction, and especially of the “sufficient connection” requirement, managed to produce a fully-fledged denial of justice. Should such a trend gain consistency, the effectiveness of the right of access to a court may be put at risk.
Call for Papers: International Conference at Loyala University Andalusia, 20-21 January 2020
The Department of Law of Loyola University Andalusia will be hosting an International Conference on 20-21 January 2020 in Seville, Spain, to discuss the impact of digitalization.
The Conference which will revolve around five major thematic areas from a multi-disciplinary approach, will also include panels on digitalization and Private International Law.
This International Conference will be a unique opportunity to discuss the new technological and digital challenges with an outstanding group of experts from different fields and a great venue to create and consolidate scientific and collaborative networks. Some of the experts who have already confirmed their participation include professors from Cornell, Harvard and other universities worldwide, officials from the United Nations, UNIDROIT, judges, members of the EU Commission expert groups, lawyers and ICT professionals.
Senior and junior scholars (including Ph.D. students) and professionals at all stages of their careers are invited to submit abstracts on some of the following, fairly broad, topics or any other related issues of novel and ground-breaking character: Ability of the basic principles of private international law to adapt to the immateriality of the digital space and new approaches to the theory of private international law in the digital context.
SUBMISSION PROCEDURE AND TIMELINE
- We invite authors to submit extended abstracts of a minimum of 800 words with the author’s name, affiliation and an updated CV including contact details to the conference directors, in the item “Documents” on the website: http://www.uloyolaict.es. All submissions may be written in either English or Spanish.
- The submitted abstracts will be assessed and selected by the Conference’s international scientific committee. In addition to the quality of the proposals, special consideration will be given to gender balance and the representation of professionals, associations and social partners in the different panels.
- The deadline for submitting proposals is 15 October 2019.
- Authors of selected abstracts for the Conference will be notified by 15 November 2019.
- The deadline for submitting the final draft paper (3,000-5,000 words) is 10 January 2020. A ‘no paper – no podium’ strict policy applies.
- The Conference will be held at the Dos Hermanas campus of Loyola University Andalusia, in Seville, on 20-21 January 2020.
- Authors of accepted abstracts are expected to bear the costs of their own travel and accommodation.
- The Conference directors are planning to publish the most relevant papers presented in the conference.
- The deadline for submitting the final version of the selected papers (6,000-8,000 words) will be 21 February 2020. Further information about the publication process will be conveyed to selected proposal authors in due course.
VENUE
The Conference will be held at the Sevilla-Ciudad del Conocimiento campus of Loyola University Andalusia in Dos Hermanas, Seville. Seville’s Old Town contains three UNESCO World Heritage Sites: the Real Alcazar palace complex, the Gothic Cathedral and the General Archive of the Indies. Other important sites are the Golden Tower (Torre del Oro), the Maria Luisa’s Park & Plaza de España and the ruins of the Roman City “Itálica”, used as location for some scenes of the television series Games of Thrones.
For more information, visit the official Conference website.
Scientific Committee
- Tine Sommer (Professor of Law, Advisory Board Member of CREDI, Center for Law and Digitalization, University of Aarhus, Denmark);
- Víctor Luis Gutiérrez Castillo (Associate Professor of Public International Law, University of Jaén);
- Fernando Miró Llinares (Professor of Criminal Law and Criminology, Miguel Hernandez University, CRIMINA Research Center);
- Alberto Elisavetski (Professor Law, Untref University of Buenos Aires, Director of On Line Dispute Resolution Latinamerica);
- Michael D. Green (Professor of Law, Wake Forest University, North Carolina, USA);
- Marie-Cécile Escande-Varniol (Professor of Law, Universidad Lumière Lyon 2)
Co-directors
- Manuel Paniagua Zurera (Professor of Commercial Law, Loyola University Andalusia);
- Gloria Fernández- Pacheco Alises (Assistant Professor of Criminology, Loyola University Andalusia);
- Maria Lubomira Kubica (Assistant Professor of Civil and Comparative Law, Loyola University Andalusia);
- Jonatan Cruz Ángeles (Assistant Professor of Public International Law, Loyola University Andalusia);
- Rafael Aguilera Gordillo (Part-time Lecturer of Criminal Compliance and International Security, Loyola University Andalusia);
- Ana Mercedes López Rodríguez (Associate Professor of Private International Law, Head of the Law Department, Loyola University Andalusia)