Views
Nothing Found
Sorry, no posts matched your criteria
News
Reminder: Conference Pathways to Civil Justice
On 19-20 November 2018, the conference: Challenge Accepted! Exploring Pathways to Civil Justice in Europe funded by the European Research Council takes place at Erasmus University Rotterdam. It focuses on artificial intelligence, ADR and ODR, self-representation, and court specialization in the context of improving access to and the quality of civil justice. Keynote speakers include Judith Resnik (Yale University) and Ruth de Bock (Advocate-General Dutch Supreme Court).
Further information on the program and registration is available here.
Find the description of the panels below.
Panel 1: The computer as the court
Artificial Intelligence (AI) research is fast advancing on new frontiers, which promise to make computers replicate traits of human intelligence. In the near future, we might see robots or machines that handle legal cases and might even replace humans as judges. We might see the computer as the court. However, AI is a term that encompasses many technologies with as many applications. This panel aims at providing an overview of the different AI technologies and their benefits. Furthermore, it explores what ethical issues are raised by replacing judges with AI units. It will try to map near?future AI innovations in the court system.
Panel 2: Consumer ADR/ODR: Justice behind closed doors? ADR (and its digital incarnation, ODR) are commonly presented as tools facilitating informal, accessible, fast and cost?effective access to justice for consumers while preserving public resources. However, such new forms of privatised Justice have raised a number of questions relating, among others, to their transparency, effects on due process or accountability. Representatives of ADR providers from several Member States and academics will critically discuss the role and potential of ADR/ODR in 21st century justice systems.
Panel 3: Access to civil justice: Taking lawyers out of the equation?
Richard Susskind’s ‘The End of Lawyers?’ underscored the existential need of the legal profession to adapt to an ever?changing landscape of legal services under the influence of the increased use of information technology, commoditisation, outsourcing, and so on. Not only are lawyers subject to change in the way they work, lately we see that, in attempts at making the administration of justice cheaper, faster and accessible, lawyers may not be part of the equation at all. Increasing possibility for self?representation in the Netherlands and the drastic cuts to legal aid in the UK provide the backdrop for a discussion about the changing landscape of civil justice and representation. This panel focuses the discussion on the relevance of legal assistance for effective dispute resolution and critically assesses the impact of the diminishing role of lawyers on the administration of justice.
Panel 4: Court specialization: Turning the tide of the ‘vanishing trial’?
Court specialization may enhance the efficiency of civil justice, provide expertise and, as a result, improve the quality and uniformity of court decisions. However, one cannot turn a deaf ear to the concerns expressed. Specialized courts may impair the geographical proximity of justice, put in question the independence and impartiality of the judiciary, establish stereotype procedures and lastly lead to a proliferation of forums resulting in a judicial labyrinth. Although specialized courts have long existed, recent legislative initiatives signal a shift towards an even greater court specialization. Courts specializing in international commercial cases, patent or company matters are only some to mention. By mapping the risks and benefits of specialized courts this panel assesses the impact court specialization has on access to justice on a European level.
Out now: Journal of Private International Law, Volume 14, Issue 3
Issue 14. 3 of the Journal of Private International Law has just been released. It contains the following articles:
Maria Caterina Baruffi, A child-friendly area of freedom, security and justice: work in progress in international child abduction cases, pp. 385-420
The protection of children’s rights constitutes the subject matter of various private international law instruments within both the international and the EU frameworks. The paper focuses on their relevant provisions regarding child abduction, which pose a number of problematic issues as to their interpretation and practical application. Against the existing background, future legislative developments are assessed with a view to proposing a provisional evaluation as to their effectiveness and actual improvement.
Charlotte Mol & Thalia Kruger, International child abduction and the best interests of the child: an analysis of judicial reasoning in two jurisdictions, pp. 421-454
The Hague Child Abduction Convention aims to secure the speedy return of abducted children. Judges can use a limited number of grounds for refusal. They may not make an in-depth assessment of the merits of any custody issue. The Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in all actions concerning children. This article analyses the use that judges make in their decisions on the concept of “the best interests of the child”. For this purpose it scrutinizes the case law on international child abduction of the Netherlands and England and Wales. By using software designed for qualitative research, the authors are able to make an objective and systematic analysis. This article confirms the hypothesis that the concept of the best interests of the child is often used without substance, and sometimes only to endorse conclusions that would have possibly been reached in any event.
Hayk Kupelyants, Recognition and enforcement of foreign judgments in the absence of the debtor and his assets within the jurisdiction: reversing the burden of proof, pp. 455-475
The article examines the recognition and enforcement of foreign judgments in the absence of the defendant and his assets within the jurisdiction. While at first sight a seemingly futile tactic, it opens a whole array of potential benefits to the judgment creditor. Under English law, to enforce a foreign judgment in the absence of the debtor and his assets, the judgment creditor needs to establish a reasonable prospect of legitimate benefit arising from the enforcement. The article challenges this view and argues that the position in English law is needlessly onerous: the burden should be on the judgment debtor to establish that the enforcement of the foreign judgment is an abuse of process. The paper also draws analogies to other legal regimes, both in the UK and outside.
Aleksandrs Fillers, Implications of Article 81(1) TFEU’s recognition clause for EU conflict of laws rules, pp. 476-499
The last decades have been marked by the extensive Europeanisation of conflict of laws rules. Traditionally, national conflict of laws rules in Continental Europe were aimed at determining the closest connection between the legal relation and the putatively applicable law. This universal objective was often combined with more local objectives: the achievement of certain substantive policies of the forum through conflictual mechanisms. The Europeanisation of conflict of laws rules poses a legitimate question: do EU conflict of laws rules pursue identical or similar policies as national conflict of laws rules? The issue may be approached using different methods. One approach is inductive – the analysis of conflict of laws rules found in EU secondary law and their comparison with national conflict of laws rules. Another approach is deductive – the analysis of the Treaty basis for EU conflict of laws rules, in order to identify whether this constitutional framework prescribes certain policies that may be different from those used in national conflict of laws rules. This contribution is devoted to the second method and analyses whether the recognition clause found in Article 81 TFEU has any meaningful influence on the nature and scope of EU conflict of law rules.
Mukarrum Ahmed, The nature and enforcement of choice of law agreements, pp. 500-531
This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has pushed choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter partes. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.
Diletta Danieli, Mixed contracts under the Brussels Ia Regulation: searching for a “jurisdictional identity”, pp. 532-548
This paper addresses the debated application of the jurisdictional regime in contractual matters provided in the Brussels Ia Regulation to cases involving mixed contracts, which comprise elements of a sale of goods, as well as a provision of services, and are not expressly regulated by that legal instrument. The starting point of the assessment is a recent Italian Supreme Court ruling, which is further compared with the relevant CJEU and national case law. Then, some broader considerations are proposed with regard to the actual desirability of specific provisions concerning these types of contracts within the Brussels system.
Torsten Bjørn Larsen, The extent of jurisdiction under the forum delicti rule in European trademark litigation, pp. 549-561
This contribution compares the extent of jurisdiction of two different forum delicti rules namely that under Article 7(2) of the Brussels Ia Regulation, which applies in national trademark litigation, with that under Article 125(5) of the EU Trade Mark Regulation, which applies in EU trade mark litigation. The former has been interpreted to cover both the place of acting and the place of effect and it seems likely that both places have limited jurisdiction. The latter covers only the place of acting which also seems likely to have limited jurisdiction.
Out now: Zeitschrift für Vergleichende Rechtswissenschaft featuring various contributions on the comparative law of trusts and foundations
The most recent issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 117 [2018], No. 3) features the following contributions:
Die Leistungskraft der österreichischen Privatstiftung für Familienunternehmen
Susanne Kalss*
ZVglRWiss 117 (2018) 221–245
The family can be an essential factor for entrepreneurs. However, family can also cause conflicts, as different roles and interests collide. There is no ideal legal form for a family business. Rather, a legal solution based on the specific needs has to be found for each individual entrepreneur. It should be kept in mind that temporary arrangements tailored to specific situations often fail and might not be able to respond to changing market circumstances. Private foundations are suitable to ensure that the assets will not be split up in case of succession and can therefore provide a legal basis to assign the foundation benefits to the family. By establishing a private foundation, a family-owned company can substantially reduce the influence of family members on management decisions in favor of an independent foundation board. This in turn reduces significantly the attractiveness of this chosen structure.
Liechtenstein Trust Enterprises as Instruments for Corporate Structuring
Hanno Merkt*
ZVglRWiss 117 (2018) 246–259
Although trusts are usually associated with intra-family wealth transfers, the importance of trusts in capital markets is rising steadily. Due to their flexibility and the high degree of privacy they provide, the Liechtenstein trust enterprise (trust reg.) can be a suitable instrument for corporate structuring and planning. Nevertheless, there remain some open questions with regard to the liability of the beneficiaries and settlors, especially if they issue continuous instructions to the trustee, or if one of them makes use of their power of dismissal against the trust management for the sole purpose of exercising influence on the trust enterprise management. In order to enhance the attractiveness of trust law for corporate structuring, an amendment of the law, that addresses the mentioned unsettled questions might be desirable.
A German View on Trusts: Selected Aspects of Trusts and their Possible Impact on the Recognition of Trusts by German Courts under Civil Law
Jonas Hermann*
ZVglRWiss 117 (2018) 260–282
When it comes to the recognition of trusts by German courts under civil law, there are several uncertainties and obstacles to overcome. The more the features of a trust are aligned with features that can also be found in German entities and other legal structures, the less risks in regard to aspects of public policy will occur. Unusual clauses (from a German point of view), like spendthrift clauses or anti-duress clauses will increase the likelyhood that a trust and its legal consequences will not be recognised.
New Trust Legislation in Civil Law Jurisdictions
Paolo Panico*
ZVglRWiss 117 (2018) 283–302
Outside the common law world, there are different approaches to replicate the functions of the English Trust or to grant them recognition in the respective jurisdiction. In this context, the ratification of the Hague Trust Convention is of particular interest. Other jurisdictions – such as Liechtenstein – have introduced trusts and trust-like arrangements into their legal system by way of special legislation. One of the main difficulties with trusts in civil law and mixed jurisdictions lies in the peculiar nature of beneficial interests, which cannot easily be categorized in either rights in rem or in personam. Scotland, for example, addresses this problem with the dual patrimony theory.
Compelling Trustees to Exercise Their Discretion: A Principle of Non-Intervention?
Tang Hang Wu*
ZVglRWiss 117 (2018) 303–317
Due to their inherent flexibility, discretionary trusts are a very popular way for wealth structuring. The present paper deals with the judicial control of a trustee’s discretion and addresses the limits of the so-called principle of non-interference. It can be concluded that the courts should intervene whenever a trustee is using his discretion in an abusive way, including situations where the trustee is misinformed, acts in mala fide or with improper motives, as well as when he fails to exercise his discretion at all.
Reforms in Hong Kong Trust Law and their Impact
Lusina Ho*
ZVglRWiss 117 (2018) 318–326
Although Hong Kong has never been an typical offshore jurisdiction, i. e. a financial centre with only a relatively small domestic economy, it has established itself as a centre for succession and asset planning by means of trusts and other legal structures. Recent developments and modernizations of Hong Kong trust law intend to attract offshore trust business to Hong Kong and to bring the Trustee Ordinance in line with modern trust statutes in onshore common law jurisdictions.
Trustee Liability for Breach of Trust in the Common Law World
Oonagh B. Breen*
ZVglRWiss 117 (2018) 327–348
When is a trustee liable? This article reviews trustee liability for breach of trust in the common law system. In Part I the author gives an introduction into the traditional trustee liability, continuing with general measures in Part II, before exploring the 2013 UK Supreme Court judgment in Futter v HMRC and its implications for trustees. Furthermore the paper considers the issue of limited or excluded liability.
Trustee Liability in Selected Civil Law Jurisdictions
Stephan Ochsner*
ZVglRWiss 117 (2018) 349–359
Since entry into force of the Hague Trust Convention on 1 July 2007, the trust has been officially recognised in Switzerland. But there is no Swiss legislation or case law dealing with the the liability of trustees, even when the trustee is based in Switzerland. A trustee runs the risk of aiding and abetting tax evasion if he or she knows or should know that the assets endowed have not been taxed. Beyond the domain of taxation, the liability risk for trustees is continuously increasing. The general increase in litigiousness in the financial services sector can probably be seen as a reason. Trustees are therefore advised to know their risks and to take measures to mitigate these risks.
Liechtenstein Trusts in International Corporate Structuring
Johanna Niegel*
ZVglRWiss 117 (2018) 360–383
Under Liechtenstein law, there are two types of trust, which can be used for corporate structuring: (a) the trust settlement as known in Anglo-Saxon law and (b) the trust enterprise (trust reg.). While a trust settlement does not enjoy legal personality, the trust enterprise can be set up with or without legal personality and fulfil various purposes. Both these types of Liechtenstein trust fall into the general category of fiduciary relationships, as they both contain an element of trust. Trust enterprises can be structured like a corporation or similar to a foundation. On the other hand, a classic example of a trust settlement would be the family trust whose objects and purposes can be compared to those of a family foundation.
The Use of Trusts for Corporate Structuring in Common Law Jurisdictions
Marcus Staff*
ZVglRWiss 117 (2018) 384–393
In this paper a typical instance is identified in which a trust is used to hold shares in an “orphan” company for the benefit of the company’s bondholders; a use to which it has been put precisely because the persons with the right to execute or enforce the trust have no valuable interest in exercising their rights. That instance is then used as an introduction to discuss the differences between execution and enforcement of a trust, including (i) trusts for persons and (ii) trusts for abstract and impersonal objects for public purposes, namely charitable trusts. There is then a description of deliberately designed trust-like arrangements for private purposes (provided for by statute in various jurisdictions) which employ representative enforcers, and problems are mentioned that may arise with the enforcement and execution of such arrangements.
Modernes Stiftungsrecht im Lichte grenzüberschreitender Stiftungstätigkeit
Alexandra Butterstein*
ZVglRWiss 117 (2018) 394–404
Globalisation is allowing „worlds to merge“ and at the same time is harmonizing the legal systems of the European states. Due to these adjustment processes, cross-border structuring options and associated issues of conflicts of law have become increasingly important in the field of asset and estate structuring. The cross-border dimension of a foundation (Stiftung) becomes particularly evident when considering the possible geographical distribution of its assets, its opportunities to participate in companies operating globally and its associated income opportunities. Founders can strategically integrate these strengths into “their“ foundation purpose. A foundation’s potential for cross-border structuring is, however, contingent up on the foundation’s recognition as a legal entity, including its identity preserving characteristics, beyond the jurisdiction in which the foundation was established.
* Univ.-Prof. Dr. Susanne Kalss, LL.M. (Florenz), Institut für Zivil- und Unternehmensrecht, Wirtschaftsuniversität Wien.
* Prof. Dr. Hanno Merkt, LL.M. (Univ. of Chicago) Direktor des Instituts für Ausländisches und Internationales Privatrecht der Universität Freiburg, Richter am OLG Karlsruhe.
* Dr. Jonas Hermann, Rechtsanwalt (D) und Head of Legal and Compliance Central Europe, BASF Österreich GmbH, Wien.
* Dr. Paolo Panico is Chairman and Managing Director of Private Trustees SA, Luxembourg, and Adjunct Professor, University of Luxembourg.
* Prof. Dr. Hang Wu Tang, LL.B. (NUS), LL.M., Ph.D. (Cantab), Professor and Director, Centre for Cross-Border Commercial Law in Asia, School of Law, Singapore Management University, Singapore.
* Prof. Lusina Ho, B.A. (Oxon), B.C.L., Harold Hsiao-Wo Lee Professor in Trust and Equity, Faculty of Law, University of Hong Kong, Hong Kong. Research for this article was funded by the RGC General Research Fund 2017–2018 (project number 17610217).
* Prof. Dr. Oonagh Breen, B.C.L. (NUI), LL.M. (NUI), LL.M. (Yale), J.S.D. (Yale), B.L., Professor, University College Dublin.
* Dr. Stephan Ochsner, LL.M., Rechtsanwalt (CH), europäisch niedergelassener Rechtsanwalt (FL) und Chairman des Ochsner Consulting Establishment, Vaduz.
* Dr. Johanna Niegel, LLM (Columbia University), TEP, Allgemeines Treuunternehmen (ATU), Vaduz, Liechtenstein.
* Marcus Staff, B.A. (York), Barrister, XXIV Old Buildings, Lincoln’s Inn, London.
* Ass.-Prof. Dr. Alexandra Butterstein, LL.M., Rechtsanwältin (D) und Assistenzprofessorin am Lehrstuhl für Gesellschafts-, Stiftungs- und Trustrecht der Universität Liechtenstein.