Views
Just released: EFFORTS Report on EU Policy Guidelines
A new Report on EU Policy Guidelines was just posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.
The Report was authored by Marco Buzzoni, Cristina M. Mariottini, Michele Casi, and Carlos Santaló Goris.
Building upon the outcomes of the national and international exchange seminars and the Project’s analytical reports, this Report formulates policy guidelines addressed to EU policymakers and puts forth suggestions to improve the current legal framework provided under the EFFORTS Regulations (namely: the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order) with regard to the enforcement of claims.
This Report was among the outputs and findings discussed at the Project’s Final Conference, hosted by the University of Milan on 30 September 2022, which provided an international forum where academics, policymakers, and practitioners discussed the Project’s key findings and exchanged their views on the national implementation of – and the path forward for – the EFFORTS Regulations. The content of the Final Conference will enrich the Final Study, which is forthcoming on the Project’s website.
Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
Now or Then? The Temporal Aspects of Choice-of-Law Clauses
Several years ago, I published a paper that examined how U.S. courts interpret choice-of-law clauses. That paper contains a detailed discussion of the most common interpretive issues—whether the clause selects the tort laws of the chosen jurisdiction in addition to its contract laws, for example—that arise in litigation. There was, however, one important omission. The paper did not consider the question of whether the word “laws” in a choice-of-law clause should be interpreted to select the laws of the chosen jurisdiction (1) at the time the contract was signed, or (2) at the time of litigation.
In declining to address this issue, the paper was in good company. Neither the Restatement (Second) of Conflict of Laws (§ 2) nor the draft Restatement (Third) of Conflict of Laws (§ 1.02) discuss the relationship between choice-of-law and time. Nevertheless, the omission bothered me.
In the spring of 2021, I saw that Jeff Rensberger at the South Texas College of Law had posted a paper to SSRN entitled Choice of Law and Time. After downloading and reading the paper, I discovered that it contained no discussion of choice-of-law clauses. It was devoted solely to the question of how courts should address the issue of temporality in cases where the parties had declined to select a law in advance. After reading the paper, I wrote to Jeff to propose that we collaborate on a second paper that specifically addressed the temporal question in the context of choice-of-law clauses. When we spoke on the phone to discuss the project, however, we did not agree on the answer. Jeff argued for the laws at the time of signing. I argued for the laws at the time of litigation.
In early 2022, Jeff sent me a draft of his new paper, Choice of Law and Time Part II: Choice of Law Clauses and Changing Law, which makes the case for interpreting choice-of-law clauses to select the law at the time of signing. In response, I drafted an essay arguing that they should be interpreted to select the law at the time of litigation. A draft of my essay, The Canon of Evolving Law, is now available for download on SSRN.
If you happen to be one of the small number of people in the world interested in this fascinating (though obscure) interpretive issue, I would encourage you to download both papers and decide for yourself who has the better of the argument.
[This post is cross-posted at Transnational Litigation Blog.]
US District Court dismisses the case filed by Mexico against the US weapons industry regarding non-contractual obligations
Written by Mayela Celis
On 30 September 2022, a US District Court in Boston (Massachusetts, USA) dismissed the case filed by Mexico against the US weapons manufacturers regarding non-contractual obligations (among them, negligence and unjust enrichment). According to Reuters, the reason given by the judge to dismiss the case is that “federal law [Protection of Lawful Commerce in Arms Act] ‘unequivocally’ bars lawsuits seeking to hold gun manufacturers responsible when people use guns for their intended purpose” and that none of the exceptions contained therein applied.
One statement worthy of note as stated in multiple news media is: “While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law.”
The full case citation is Estados Unidos Mexicanos (plaintiff) vs. SMITH & WESSON BRANDS, INC.; BARRETT FIREARMS MANUFACTURING, INC.; BERETTA U.S.A. CORP.; BERETTA HOLDING S.P.A.; CENTURY INTERNATIONAL ARMS, INC.; COLT’S MANUFACTURING COMPANY LLC; GLOCK, INC.; GLOCK GES.M.B.H.; STURM, RUGER & CO., INC.; WITMER PUBLIC SAFETY GROUP, INC. D/B/A INTERSTATE ARMS (defendants), Case 1:21-cv-11269, filed in 2021.
In a nutshell, the allegations made by Mexico are the following (as stated in the complaint):
- Defendants have legal duties to distribute their guns safely and avoid arming criminals in Mexico;
- Defendants are fully on notice that their conduct causes unlawful trafficking to Mexico;
- Defendants actively assist and facilitate trafficking of their guns to drug cartels in Mexico:
- Defendants actively assist and facilitate the unlawful tracking because it maximizes their sales and profits;
- The Government has taken reasonable measures to try to protect itself from defendants’ unlawful conduct;
- Defendants cause massive injury to the government.
Claims for relief are (as stated in the complaint):
Negligence, public nuisance, defective condition – unreasonably dangerous, negligence per se, gross negligence, unjust enrichment and restitution, violation of CUTPA [Connecticut Unfair Trade Practices Act], Violation of Mass. G.L. c. 93A [Massachusetts Consumer Protection Act], punitive damages.
In addition to the argument given by the judge, I believe that it would be very hard to establish personal jurisdiction over the defendants. Think for example of the minimum contacts and the reasonableness test, in particular what are the contacts of the defendants with the state of Massachusetts (but see for example: Smith & Wesson is indeed based in Massachusetts until 2023), the existence of justified expectations that may be protected or hurt, and the forum State’s [the United States of America} interest in adjudicating the dispute.
Moreover, and aside from jurisdictional issues, given that the actual damage occurred overseas, an important issue would be to prove the causation link between the conduct of the defendants and the damage. This will prove particularly difficult considering all the intermediaries that exist in the weapons’ trade (legal and illegal, second-hand sales, pawn shops, etc.).
Nevertheless, this is a very interesting initiative and perhaps it is a battle worth fighting for (if only to raise public awareness). One thing is for sure: the Mexican Government has shown its increasing concern about the illicit traffic of firearms in its territory and its commitment to end it.
The Mexican Federal Government will appeal the judgment. The official statement is available here.
We will post any new updates on this blog. Stay tuned!
News
Virtual Workshop (in English) on May 14: Roxana Banu on Constructing Imperial Authority through British Imperial Constitutional Law and Private International Law
On Tuesday, May 14, 2024, the Hamburg Max Planck Institute will host its 44th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Roxana Banu (University of Oxford) will speak, in English, about the topic
Constructing Imperial Authority through British Imperial Constitutional Law and Private International Law
Historians of the British Empire have long underscored the significance of constitutionalism and of legal pluralism in crafting and sustaining imperial authority. Constitutional law scholars, though to a lesser extent, have also been preoccupied with tracing the imperial history of constitutionalism in the colonies and the metropole. Legal historians and constitutional law scholars have offered us a fascinating array of perspectives on the way in which British imperial constitutional law promised both liberty and control throughout the empire and experimented with constitutional autonomy for the white settler colonies while tightening control for the rest of the empire. But this melange of unequally distributed patterns of authority and the constant recalibration of autonomy and control for different parts of the empire depended on the principles and doctrines of yet another field, which has remained remarkably silent on its imperial past, namely private international law. Unlike in constitutional law and even public international law, there is virtually no account of the colonial history of private international law. In this paper I start to trace that history with an analysis of the way in which key doctrinal principles of private international law, such as comity, territoriality, and the public policy exception were referenced either as alternatives to, or counterparts of, key imperial constitutional law principles of representative government, territoriality, and repugnancy. Imperial actors would appeal to one or another image of imperial authority constructed by either imperial constitutional law or private international law to gain more autonomy or to tighten imperial control. Far from being a relic of the past, the significance of this history can be traced, I argue, in contemporary cases on comity, forum non conveniens, and territoriality.
The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
British Academy International Writing Workshops: Access to Justice in Southeast Asia
Georgia Antonopoulou (University of Birmingham)
From 24 to 26 September 2024, the International Writing Workshop ‘Reimagining Access to Justice: An Equitable Research Partnership with Southeast Asia’ will take place in Jakarta, Indonesia. The writing workshop will focus on the theme of access to civil justice in Southeast Asia and is funded by the British Academy’s International Writing Workshops Programme. It will be organised under three sub-themes: (1) Barriers to Access to Justice, (2) Digital Technologies in Civil Justice, and (3) Access to Justice and Sustainable Development. Senior scholars with specialisation in the relevant workshop themes and editorial experience with leading journals will offer detailed, hands-on feedback on participants’ draft articles and give presentations on effective academic writing and publishing practices. The workshops will cover reasonable costs of travel, accommodation, and meals for the selected participants.
Applications: We invite submissions from researchers and academics, especially at their early stages of their careers, from Indonesia, the Philippines, Malaysia, Cambodia, and Vietnam. Applications should be in English and emailed to the PI Dr G. Antonopoulou, Birmingham Law School, the University of Birmingham (g.antonopoulou@bham.ac.uk). They should include:
- an abstract (max. 200 words);
- a draft article (max. 5,000 words);
- a Curriculum Vitae (max. 2 pages long); and
- a brief statement of motivation (max. 600 words).
The deadline for submission is the 15 July 2024.
During the writing workshop, the selected participants will give a presentation of their articles and then receive feedback from senior scholars with editorial experience to improve and publish their articles. In June 2025, a follow-up writing workshop will take place to monitor improvement. During the second writing workshop, training on writing funding applications will also be provided. The Call for Papers is also available here.
We particularly welcome applications from underrepresented groups. The University of Birmingham’s Equality, Diversity, and Inclusion policy can be found here. While attendance in person is required for the first writing workshop, the option of online attendance can be offered upon request during the second workshop. Special consideration will be given to female participants vested with childcare and/or other domestic responsibilities. Interested applicants are encouraged to include in their statement of motivation any necessary reasonable adjustments to facilitate their meaningful participation in the workshops.
We are looking forward to receiving your applications!