Please see below for a call for proposals for a conference to be held 20-22 June 2012

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Call for Proposals – Collective Redress in the Cross-Border Context

Large-scale international legal injuries are becoming increasingly prevalent in today’s globalized economy, whether they arise in the context of consumer, commercial, contract, tort or securities law, and countries are struggling to find appropriate means of providing collective redress, particularly in the cross-border context.  The Hague Institute for the Internationalisation of Law (HiiL), along with the Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS), will be responding to this new and developing challenge by convening a two-day event on the theme “Collective Redress in the Cross-Border Context:  Arbitration, Litigation, Settlement and Beyond.”  The event includes two different elements – a workshop on 21-22 June 2012 comprised of invited speakers from all over the world as well as a works-in-progress conference on 20-21 June 2012 designed to allow practitioners and scholars who are interested in the area of collective redress to discuss their work and ideas in the company of other experts in the field.  Both events are organized by the Henry G. Schermers Fellow for 2012, Professor S.I. Strong of the University of Missouri School of Law.

Persons interested in being considered as presenters for the works-in-progress conference should submit an abstract of no more than 500 words to Professor S.I. Strong at strongsi@missouri.edu on or before 1 May 2012.  Decisions regarding accepted proposals will be made in early May, and those whose proposals are accepted for the works-in-progress conference will need to submit a draft paper by 4 June 2012 for discussion at the conference.  All works-in-progress submissions should explore one or more of the various means of resolving collective injuries, including class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation, preferably in a cross-border context.  Junior scholars in particular are encouraged to submit proposals for consideration.

Persons presenting at the works-in-progress conference will have to bear their own costs, since there is no funding available to assist with travel and other expenses.  The works-in-progress conference will be held on 20 and 21 June 2012 at NIAS, Meijboomlaan 1, 2242 PR Wassenaar, The Netherlands.  Wassenaar is approximately 20 minutes from The Hague by car.  The workshop of invited speakers will be held on 21 and 22 June, also at NIAS.

Both the Schermers workshop and the works-in-progress conference are open to the public, although advance registration is required.  More information on both events is available at the HiiL website (www.hiil.org) or from Professor Strong at strongsi@missouri.edu.

Contact:  Prof. S.I. Strong at strongsi@missouri.edu

Deadline for proposals:  1 May 2012

For more on the Henry G. Schermers Fellowship at HiiL/NIAS, see:  http://www.hiil.org/organ-bios/prof-s-i-strong

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

• Gerhard Hohloch:” Die „Bereichsausnahmen“ der Rom II-VO – Zum Internationalen Privatrecht in und um Art. 1 Abs. 2 Rom II-VO” – the English abstract reads as follows:

The scope of applicability of the regulation “Rome II” is governed by its art. 1. Art. 1 subpara. 1 defines this scope as the matter of “non-contractual obligations”, art. 1 subpara. 2 traces the limits of this scope by a catalogue of “excepted areas” (lit. a–g). The subsequent article hereinafter has been dedicated to the research of the limits of these “excepted areas” as well as the conflict of laws rules governing these areas. The author underlines that art. 1 subpara. 2 has to be understood on the basis of “European law making”; therefore methods of classification have to follow European, not “national” ideas. The program of harmonization and unification of conflicts of laws (“Rome I”–“Rome V” and more) obliges to describe the scope of each regulation. The “excepted areas” are defined by methods of interpretation of European style, meanwhile their contents are governed by European conflict rules (“Rome I–III”) or by conflict rules based on multilateral conventions or by “national rules”. The author discusses their “border lines” and goes on to the residuary competences of national conflict rules and to look for the future development.

• Dieter Martiny: “Lex rei sitae as a connecting factor in EU Private International Law” – the English abstract reads as follows:

The situs rule is one of the classic connecting principles in private international law, particularly for property law. In European conflict law, which is mainly regulated by different Regulations, the lex rei sitae only plays a restricted role as a connecting factor. Property issues are generally outside the scope of the Regulations. In international civil procedure the situs functions as a basis for exclusive jurisdiction. It is, however, difficult to separate the effects of relationships in contract law, succession and matrimonial property law from questions of property law as such. In international contract law the situs has only a reduced importance in the context of the form of the contract and overriding mandatory rules. Since there is a lack of harmonised property law, problems arise mainly in the context of non-possessory security rights when encumbered assets cross the border. The plethora of problems arising from a change of the applicable law and the recognition of foreign security rights suggest that the creation of an additional uniform security right might be more successful than a solution restricted to private international law.
The scission or dualist approach in matrimonial property law and succession law with its distinction between the law applicable to the person (and movable property) and the law applicable to immovables (the lex rei sitae applying as to the latter) is not followed by the proposed EU Regulations for succession and matrimonial property. However, it is necessary to a certain extent that the law of the place where property is located be applied or at least be taken into account. Property rights in rem, transfer of land and land registers have to be excluded from the scope of application of the EU instruments so long as there is no uniform law. For some separate issues a special connection to the place of location of property is appropriate. Precise definitions are of particular importance given the need to ensure legal certainty and satisfy the expectations of parties.

• Christoph Reithmann on foreign notarial deeds: “Urkunden ausländischer Notare in inländischen Verfahren”

• Timo Nehne: “Die Internationale Geschäftsführung ohne Auftrag nach der Rom II-Verordnung – Anknüpfungsgegenstand und Anknüpfungspunkte” – the English abstract reads as follows:

The choice of law rules of the Rome II Regulation have so far been dealt with by a remarkable number of scholarly publications in different countries and languages. Most of them, however, pay only little attention to Article 11. Its legal category and connecting factors give rise to specific questions of construction and application which the following contribution aims to address.

• Susanne Fucks: “Die Zustellungsbevollmächtigung von inländischen Schadensregulierungsbeauftragten ausländischer Kraftfahrzeughaftpflichtversicherer” – the English abstract reads as follows:

According to Art. 4 of the 4th Motor Insurance Directive all motor vehicle insurers are required to appoint a claims representative in each Member State other than that in which they have received their official authorisation. The claims representative should be authorised to collect all necessary information in relation to claims and to take appropriate action regarding the settlement of claims on behalf and for the account of the insurance undertaking in cases where the victim of a motor vehicle accident abroad makes use of his or her direct right of action against the foreign insurance company. If the claim is not settled the insurance company may be sued before the courts for the place in a Member State where the injured party is domiciled.
This article discusses the decision made by the Higher Regional Court of Saarbrücken, which concluded that the service of the writ cannot be effected to the claims representative if the representative is not explicitly authorised to receive such a statement of claim. The article attempts to give reasons why Art. 4 of the 4th Motor Insurance Directive suggests such an authorisation and a service of process abroad including the translation of the statement of claim according to the European Regulation on the service of documents is not necessary in that case.

• Peter Mankowski: “Autoritatives zum „Ausrichten“ unternehmerischer Tätigkeit unter Art. 15 Abs. 1 lit. c EuGVVO” – the English abstract reads as follows:

„Directing activities“ in Art. 15 (1) (c) Brussels I Regulation is the key term for the width and scope of consumer protection in Europe. Now, the ECJ has adressed and refined it with regard to the most important area, e-commerce. The Joint Declaration of Council and Commission has lost any sway. A test of criteria has been established, creating some guidelines but leaving some remaining uncertainty. Some of the criteria mentioned deserve closer inspection. Going beyond the borders of the State in which a business has its seat is the foundation for a rebutable presumption that the business directs its activities to the consumer’s State. The yardsticks developed in consumer protection law can be transferred to the PIL of unfair commercial practices.

• Heinz-Peter Mansel on the decision of the Disctrict Court Neustrelitz of 18 January 2011: “Rechtsprechungsübersicht zu AG Neustrelitz, Beschluss v. 18.1.2011 – 6 F 106/09”

•  Renata Fialho de Oliveira: “Die Zulässigkeit ausschließlicher internationaler Gerichtsstandsvereinbarungen in Brasilien” – the English abstract reads as follows:

In the absence of an express legal rule providing for international choice of court agreements and its effects under Brazilian law, the subject has to be analysed considering the national general legal framework regarding international jurisdiction, legal writing and case law. As far as the latest is concerned, courts in Brazil have adopted in the last decades different approaches when it comes to the derogatory effects of exclusive choice of court agreements. The lack of a clear line of decision in such an important subject for international affairs is source of legal uncertainty. A recent decision of the Superior Tribunal de Justiça gives rise to a brief analysis of the subject in the following note.

• Michael Stürner: “Internationale Zuständigkeit für provisorische Rechtsöffnung nach LugÜ” – the English abstract reads as follows:

Pursuant to Article 22 No. 5 Brussels I Regulation/Lugano Convention 2007, in proceedings concerned with the enforcement of judgments, the courts of the State in which the judgment has been or is to be enforced shall have exclusive jurisdiction. The jurisdictional concept of Brussels I/Lugano Convention is based on the assumption that proceedings can either qualify as being part of the enforcement stage or of the adjudication itself, the basis for such qualification being an autonomous interpretation. Given the multitude of different enforcement proceedings and recourses under national law it is not always clear if a particular type of proceeding falls within the scope of Article 22 No. 5 Brussels I/Lugano Convention. The decision of the Swiss Bundesgericht (Federal Supreme Court) of 7 October 2010 discussed here deals with the so-called provisorische Rechtsöffnung, which is a preliminary proceedings taking place before the actual enforcement proceedings. The Bundesgericht holds Article 22 No. 5 Brussels I/Lugano to be applicable, a decision, it is submitted here, which is to be criticised.

• Boris Kasolowsky/Magdalene Steup: “Dallah v Pakistan – Umfang und Grenzen der Kompetenz-Kompetenz von Schiedsgerichten” – the English abstract reads as follows:

The UK Supreme Court and the Paris Cour d’appel have recently confirmed, in connection with the ICC arbitration involving Dallah and Pakistan, that the national state courts are not bound by any determinations made by an arbitration tribunal with regard to the existence of a valid arbitration agreement between the parties. The arbitration tribunal’s Kompetenz-Kompetenz therefore remains subject to full review by the state courts at the recognition and enforcement stage. English and French courts have thus clarified that the principle of Kompetenz-Kompetenz is effectively just a rule of priority: the arbitration tribunal has the authority to rule on its own jurisdiction first and before any review by the national courts.

• David Diehl: “Keine Anwendbarkeit des US-amerikanischen Foreign Sovereign Immunities Act auf amtlich handelnde Individuen – Das Urteil des US Supreme Court in Samantar v. Yousuf” – the English abstract reads as follows:

The Foreign Sovereign Immunities Act (FSIA) and the Alien Tort Statute (ATS) are the two main pillars of the Human Rights Litigation in the United States. While the former constitutes the sole basis for suits against foreign states, the latter is frequently invoked by courts to establish jurisdiction over foreign government officials. However, in Amerada Hess Shipping v. Argentina, the US Supreme Court decided that plaintiffs may only rely on the ATS if the FSIA does not apply to the given case. As the FSIA does not explicitly mention individuals, courts were faced with the question of whether they may be subsumed under the notion of the “state” directly (28 U.S.C. § 1603 (a)) or can be regarded as an “agency or instrumentality of a foreign state” (28 U.S.C. § 1603 (b)) when acting in official capacity. Since the decision of the Court of Appeals in Chuidian v. Philippine National Bank, courts have regularly followed the latter interpretation. This interpretation however, has been challenged by other courts in recent years, leading to the decision of the Supreme Court in Samantar v. Yousuf. In this ATS case against the former prime minister of Somalia for torture and arbitrary killings, the highest US Court finally decided that the FSIA may not be read to include individuals at all. Instead, according to the Court, all immunity of foreign individuals is solely governed by the (federal) common law, possibly forcing the courts to determine the scope of individual immunity according to international law in future cases. This may have severe impacts on the Human Rights Litigation in the United States which this article sets out to explore.

• Fritz Sturm: “Schweizer Familiengut in Liechtensteiner Stiftungshut” – the English abstract reads as follows:

The assets of a family foundation regularly incorporated in Vaduz (Liechtenstein) have been spoiled by one of the managers of a credit institution in Geneva, where it had opened an account. The bank, however, refused to indemnify the foundation for its loss asserting that infringing the prohibition to create new family foundations (art. 335 sec. 2 Swiss Civil Code) the foundation as plaintiff could not be a subject of legal rights and duties. Following the Genevan instances, the Federal Court of Lausanne in a ruling dated 17/11/2009 rejected this argumentation. It stated that art. 18 Swiss Code of Private International Law can not be applied, the prohibition invoked not being intended to protect guiding principles of the Swiss social, political and economic policy.

• Hilmar Krüger: “Zum auf Schiffspfandrechte anzuwendenden Recht in der Türkei”

• Carl-Johan Malmqvist: “Die Qualifikation der Brautgabe im schwedischen IPR” – the English abstract reads as follows:

Sweden and Germany have become two multicultural countries with large Muslim minorities. This situation reflects on the court system and raises questions about some Muslim traditions and legal elements and their legal status within Swedish and German law. One example is the Mahr, the amount to be paid by the man to the woman at the time of marriage. This article is about the classification of Mahr according to German and Swedish law, but with main focus on the latter legal system. As part of this description, two basic Swedish cases regarding Mahr will be presented and analyzed and hopefully contribute to a clearer view on the Swedish standpoint on Mahr within the private international law.

• Karl Peter Puszkajler on the conference of the University of Belgrade: Current questions on international arbitration: “Aktuelle Fragen der Internationalen Schiedsgerichtsbarkeit – Tagung der Rechtsfakultät der Universität Belgrad”

The first issue of French Journal du droit international (Clunet) for 2012 was just released. It contains five articles and several casenotes.
Four articles explore private international law issues.

In the first one, María Mercedes Albornoz and Jacques Foyer (both from Paris II University) compare the Interamerican Convention on the law applicable to international contracts with the Rome I Regulation (Une relecture de la Convention interaméricaine sur la loi applicable aux contrats internationaux à la lumière du règlement « Rome I »). The English abstract reads:

The substantive and formal changes undergone by the Rome Convention as a result of its transformation into a European Community Regulation have altered the terms of comparison between the Rome and Mexico systems on the law applicable to international contracts. An analytical re-reading of the Inter-American Convention in the light of the Rome I Regulation shows that even if the Rome system may continue contributing to the interpretation of the Mexico system, Rome I’s introduction of new interpretive elements is limited.

In the second article, Gian Paolo Romano (University of Geneva) wonders whether private international law fits within Emmanuel Kant’s theory of justice (Le droit international privé à l’épreuve de la théorie kantienne de la justice).

Kant’s legal writings are becoming increasingly popular and so is the idea that Law purports to ensure consistency of the domains of external freedom of the rational agents – in Kant’s view : both individuals and States – so as to prevent or resolve conflicts, which are simultaneous and mutually incompatible claims asserted by two agents over the same domain of freedom. If it is commonly held that private international law is also centered around coordination, the Kantian account on how Law comes into existence, both at the national and international levels, suggests that what cross-border relations between private persons require is actually a twofold consistency, i.e. that of domains of external freedom of States, which freedom consists here in securing, through their national laws and adjudications, mutually consistent domains of external freedom of private persons which are parties to those relations. Positivism and natural law, liberty and necessity, universalism and particularism, multilateralism and unilateralism : those dualisms with which conflict of laws thinking and methodology has been grappling for some time also feature within the Kantian tradition and the way the latter manages to come to terms with them may assist the former in readjusting its paradigm. Which readjustment arguably mandates reconciling the contention that conflict of laws ultimately involves a conflict between States with the idea that conflicts between private persons are the only ones truly at stake here.

In the third article, Xavier Boucobza and Yves-Marie Serinet (both Paris Sud University) explore the consequences of a recent ruling of the Paris court of appeal on the application of human rights in international commercial arbitration (Les principes du procès équitable dans l’arbitrage international).

The affirmation of fundamental right to a fair hearing before the international arbitrator emerges clearly from the ruling handed down by the Paris Court of Appeals on November 17, 2011. The ruling states, in part, that arbitration decisions are not exempt from the principle according to which the right to a fair trial implies that a person may not be deprived of the concrete possibility of having a judge rule on his claims and, furthermore, that the principle of contradictory implies that all parties are in an equal position before the arbitrator. In light of of these principles, the decision taken in application of the rules of arbitration of the ICC to regard counter-claims as withdrawn because of the failure of the defendant to advance fees, constitutes an excessive measure because of the impecuniousness of the claimant.

The solution that emerges has positive implications from the point of view of the politics of arbitration. The guarantee of the right to arbitration, until now invoked in order to facilitate arbitration, has evolved into an actual duty, which is the corollary of the promotion of this form of settling claims. Ultimately, arbitration law can never be totally independent of and exempt from universally recognized fundamental principles.

Finally, Sandrine Maljean-Dubois (Centre National de la Recherche Scientifique) discusses the impact of international environmental norms on businesses (La portée des normes du droit international de l’environnement à l’égard des entreprises).

International environmental law must reach enterprises to be effective. It nevertheless grabs hold of them only imperfectly. While enterprises are among the final addressees of international rules, its apprehension by international law is generally indirect, requiring the mediation of domestic law. It is commonplace to say that in an international society made from States enterprises are secondary actors, « non-prescribers ». Though they are thirds to interstate relations, enterprises are actively involved. And though they do not have an international or internationalized status, enterprises can all the same enjoy rights or be subjected to obligations stemming from the interstate society by means of international law. In practice, international law makes them enjoy more rights than it lays down obligations. In spite of this, regulatory constraints on enterprises are increasing. Their forms and terms are varied. Traditional, interstate sources of international law are but one of the many layers of the « normative millefeuille » gripping enterprises. Newer – rather global or transnational – sources also regulate their activities. Paradoxically, binding law (customary and conventional law) only binds weakly, since it binds mediately. On the contrary, incentive law actually manages to grab hold of and to compel enterprises, complementing more traditional rules and instruments and under pressure of citizens-consumers-unions-shareholders-investors.

As part of a series of compendia on foreign commercial and business law in German language, a fully revised edition on English commercial and business law has just been released. The book is edited and authored (with two additional co-authors) by Volker Triebel, a German Rechtsanwalt and English barrister, Martin Illmer from the Max Planck Institute for Comparative and International Private Law in Hamburg and Wolf-Georg Ringe, Stefan Vogenauer as well as Katja Ziegler, all from the University of Oxford.

The book attempts to provide a comprehensive overview of English commercial and business law while at the same time explaining and analyzing the differences between German and English business law as well as the increasing interfaces between English and European law. For readers of this blog the chapters on international civil procedure, private international law, international insolvency law and international arbitration, all written by Martin Illmer, may be of particular interest. They present the autonomous common law rules in these fields as well as the interfaces of the European regimes (such as Brussels I, Rome I, Rome II and the Insolvency Regulation) with English law which are often are only rarely covered. Other areas explored by the treatise are the legal sources of English commercial law, contract law (with sale of goods in particular), company law, labour law, insolvency law and competition law.

More information is available on the publisher’s website.

On Thursday 15 March 2012 the Hanenburg-Yntema Foundation convenes a seminar on Alternative Dispute Resolution (ADR) and Mediation in China, with a focus on “People’s Mediation in China”.

The “Hanenburg-Yntema Fonds” is Belgian foundation, based at the University of Leuven, whose key goal is to promote academic research on the law of the People’s Republic of China or the Republic of China on Taiwan (further info on the Foundation is available at www.hanenburg-yntemafonds.be).

To this end, the foundation offers a yearly prize of EUR 2.500 for a dissertation at master’s level on one of these topics. The prize is open to graduates of outstanding academic merit who are graduating from their initial master degree.  At the occasion of the price award ceremony the foundation uses to organize an expert seminar where the prize winner presents his/her thesis and where some renowned experts shed light on the topic of the thesis from connected angles. The prize for 2011 was awarded to Selina Schmidt, a Swiss student, for her excellent thesis on arbitration and mediation in the PRC (Die Rolle des Rechts in der Schlichtungspraxis in der VR China. Analyse einer Sammlung von ‘Volksschlichtungsfällen’). Accordingly the upcoming edition of the seminar will revolve around alternative dispute resolution.

The event will take place in Leuven; full programme is available at www.law.kuleuven.be/hyfonds/nl/mediation_2012.htm. The seminar starts at 16:00 and lasts until 19:15. The language will be English. Participation is free of charge, but previous registration is required at jacoba.hanenburg@law.kuleuven.be.

Many thanks to Dimitri Droshout for the tip.

On the occasion of Bernd von Hoffmann’s 70th birthday Herbert Kronke and Karsten Thorn have edited a Festschrift entitled “Grenzen überwinden – Prinzipien bewahren” (Overcoming Borders – Preserving Principles). It has been published by Ernst und Werner Gieseking and contains contributions relating to Private International Law, International Civil Procedure, Comparative Law and International Commercial Arbitration.

The table of contents reads as follows (in brackets: first page of the contribution):

I. Internationales Privatrecht

• Marianne Andrae, Wertungswidersprüche und internationales Erbrecht (3)
• Christian Armbrüster, Das IPR der Versicherungsverträge in der Rom I-Verordnung (23)
• Gregor Bachmann, Das auf die insolvente Societas Europaea (SE) anwendbare Recht (36)
• Jürgen Basedow, Das fakultative Unionsprivatrecht und das internationale Privatrecht (50)
• Katharina Boele-Woelki, Property Relations of International Couples in Europe: The Interaction between Unifying and Harmonizing Instruments (63)
• Nina Dethloff, Güterrecht in Europa – Perspektiven für eine Angleichung auf kollisions- und materiellrechtlicher Ebene (73)
• Erwin Deutsch, Das internationale Arzneimittelrecht nach den Rom-VO (89)
• Omaia Elwan, Qualifikation der Unzulässigkeit von Klagen aus ‘urfi-Ehen im ägyptischen Recht  (99)
• Martin Franzen, Neue Regeln für das IPR des Timesharing (115)
• Bettina Heiderhoff, Ist das Anerkennungsprinzip schon geltendes internationales Familienrecht in der EU? (127)
• Jan von Hein, Die Behandlung von Sicherheits- und Verhaltensregeln nach Art. 17 der Rom II-Verordnung (139)
• Dieter Henrich, Der Renvoi: Zeit für einen Abgesang? (159)
• Abbo Junker, Internationales Arbeitsvertragsrecht im Vereinigten Königreich (168)
• Eva-Maria Kieninger, Das Europäische IPR vor der Kodifikation? (184)
• Peter Kindler, Handelsvertreterrichtlinie und Rom I (198)
• Christian Kohler, Le choix de la loi applicable au divorce – Interrogations sur le règlement « Rome III » de l’Union européenne (208)
• Sebastian Krebber, Qualifikationsrechtlicher Rechtsformzwang – Der Arbeitsvertrags- und Arbeitnehmerbegriff im Europäischen Kollisions- und Verfahrensrecht (218)
• Stefan Leible, Brauchen wir noch Art. 46b EGBGB? (230)
• Luís de Lima Pinheiro, Rome I Regulation: Some Controversial Issues (242)
• Walter F. Lindacher, AGB-Verbraucherverbandsklagen bei transnationaler Klauselverwendung (258)
• Dirk Looschelders, Anpassung und ordre public im Internationalen Erbrecht (266)
• Dieter Martiny,Die objektive Anknüpfung atypischer und gemischter Schuldverträge (283)
• Felix Maultzsch, Privatautonomie bei reinen Inlandsfällen im Internationalen Privat-, Prozess- und Schiedsverfahrensrecht (304)
• Yuko Nishitani, Internationale Kindesentführung in Japan – Auf dem Weg zur Ratifikation des HKÜ? (319)
• Oliver Remien, Variationen zum Thema Eingriffsnormen nach Art. 9 Rom I-VO und Art. 16 Rom II-VO unter Berücksichtigung neuerer Rechtsprechung zu Art. 7 Römer Übereinkommen (334)
• Anne Röthel, Englische family provision und ordre public (348)
• Giesela Rühl, Der Schutz des „Schwächeren“ im europäischen Kollisionsrecht (364)
• Dietrich Schefold, Zum anwendbaren Recht bei Devisenhandelsgeschäften (378)
• Boris Schinkels, Das internationalprivatrechtliche Interesse – Gedanken zur Zweckmäßigkeit eines Begriffs (390)
• Klaus Schurig, Eine hinkende Vereinheitlichung des internationalen Ehescheidungsrechts in Europa. (405)
• Andreas Schwartze, Internationales Forum Shopping mit Blick auf das günstigste Sachrecht (415)
• Kurt Siehr, Der ordre public im Zeichen der Europäischen Integration: Die Vorbehaltsklausel und die EU-Binnenbeziehung (424)
• Andreas Spickhoff, Grundfragen des Arzt-Patienten-Verhältnisses im Spiegel des Internationalen Privat- und Zivilprozessrechts (437)
• Hans Stoll, Die Kodifikation des internationalen Privatrechts der außervertraglichen Haftung im Staate Oregon, 2009 (448)
• Michael Stürner, Europäisierung des (Kollisions-)Rechts und nationaler ordre public (463)
• Jürgen Thieme, Rom I und Insolvenzverträge (483)
• Hannes Unberath, Internationale Mediation – Die Bestimmung des maßgeblichen Rechts (500)
• Marc-Philippe Weller, Brennpunkte des Insolvenzkollisionsrechts (513)
• Peter Winkler von Mohrenfels, Die Rom III-VO und die Parteiautonomie (527)

II. Internationales Zivilverfahrensrecht

• Christoph Benicke, Ordre-public-Verstoß ausländischer Adoptionsentscheidungen bei ungenügender Prüfung des Kindeswohls (545)
• Michael Bogdan, Contract or Tort under Article 5 of the Brussels I Regulation: Tertium non Datur? (561)
• Gilles Cuniberti, Some Remarks on the Efficiency of Exequatur (568)
• Martin Gebauer, Das Prorogationsstatut im Europäischen Zivilprozessrecht (577)
• Reinhold Geimer, Internationales Zivilprozessrecht und Verfassung sowie International Fundamental Procedural Rights (589)
• Helmut Grothe, Internationale Gerichtsstände für Klagen gegen internationale Sportverbände aufgrund von Dopingsperren (601)
• Wolfgang Hau, Gegenwartsprobleme internationaler Zuständigkeit (617)
• Peter Hay, Favoring Local Interests – Some Justizkonflikt-Issues in American Perspective (634)
• Burkhard Hess, Die Reform der Verordnung Brüssel I und die Schiedsgerichtsbarkeit (648)
• Erik Jayme, Der Klägergerichtsstand für Direktklagen am Wohnsitz des Geschädigten (Art. 11 Abs. 2 i.V.m. Art. 9 EuGVO): Ein Danaergeschenk des EuGH für die Opfer von Verkehrsunfällen (656)
• Ulrich Magnus, Gerichtsstandsvereinbarungen im Vorschlag zur Reform der EuGVO (664)
• Heinz-Peter Mansel, Grenzüberschreitende Restschuldbefreiung – Anerkennung einer (automatic) discharge nach englischem Recht und ordre public (683)
• Jörg Pirrung, Vorrangige, beschleunigte und Eilverfahren vor dem Europäischen Gerichtshof in Ehe- und Sorgerechtssachen (698)
• Herbert Roth, Wer ist im Europäischen Prozessrecht ein Verbraucher? (715)
• Dennis Solomon, Der Immobiliargerichtsstand im Europäischen Zuständigkeitsrecht (727)
• Karsten Thorn, Internationale Zuständigkeit bei Persönlichkeitsverletzungen durch Massenmedien (746)

III. Rechtsvergleichung – Internationalisierung – Transnationales Recht

• Ulrich Drobnig, Der Zinssatz bei internationalen Warenkäufen gemäß CISG nach Rechtsprechung und Schiedspraxis (765)
• Angelika Fuchs, Schadensausgleich und Verhaltenssteuerung – Rechtsvergleichende Überlegungen zu den Zwecken deliktischer Haftung (776)
• Günter Hager, Haftung für vorsätzlich verursachte Vermögensschäden (Economic Torts) im englischen Recht (791)
• Helmut Heiss, Transnationales Versicherungsrecht – Eine Skizze (803)
• Peter Huber, Die Anwendung des UN-Kaufrechts durch Schiedsgerichte (815)
• Peter Reiff, Die Erfüllung unionsrechtlicher Informationspflichten durch Inhalte einer Webseite (823)
• Gerhard Robbers, Entwicklungen der Menschenwürde (836)
• Thomas Rüfner, Chapter 15 des US Bankruptcy Code in der Praxis (843)
• Götz Schulze, Der anationale Geltungsgrund der UNIDROIT-Principles (856)
• Fritz Sturm, Gutachterhonorare – Wer haftet: Anwalt oder Klient? (865)
• Rolf Stürner, Die Bedeutung rechtswissenschaftlicher Dogmatik am Beginn eines Jahrhunderts fortschreitender Internationalisierung (877)
• Daniel Thürer und Jonathan Pärli, „Urbi et Orbi“ – Zu Status und Geschichte der Stadt im internationalen Recht (888)

IV. Schiedsgerichtsbarkeit (Arbitration)

• Christian Berger, Schiedsrichtervertrag und Insolvenz der Schiedspartei (903)
• Klaus Peter Berger, Allgemeine Rechtsgrundsätze in der Internationalen Wirtschaftsschiedsgerichtsbarkeit (914)
• Jens Bredow, Zur „Volljährigkeit der Deutschen Institution für Schiedsgerichtsbarkeit“ (928)
• Diederich Eckardt, Internationale Handelsschiedsgerichtsbarkeit und Insolvenzverfahren: Die Bestimmung des maßgeblichen Rechts (934)
• Ulrich Haas, Aufrechnung im Schiedsverfahren und Art. 19 ICC-SchO (949)
• Rainer Hausmann, Anwendbares Recht vor deutschen und italienischen Schiedsgerichten – Bindung an die Rom I-Verordnung oder Sonderkollisionsrecht? (971)
• Hans van Houtte, Revision of Awards Revisited (987)
• Ahmed S. El Kosheri, Reflections on the ICSID Annulment Decision Rendered in the FRAPORT/Philippines Case (996)
• Herbert Kronke, Principles Based Law and Rule Based Law: The Relevance of Legislative Strategies for International Commercial Arbitration (1002)
• Peter Mankowski, Schiedsgerichte und die Verordnungen des europäischen Internationalen Privat- und Verfahrensrechts (1012)
• Annemarie Matusche-Beckmann und Frank Spohnheimer, Überlegungen zu den Rechtsbehelfen gegen den (Nicht-)Ausschluss befangener Schiedsrichter (1029)
• Thomas Pfeiffer, Pflicht zur diskriminierungsfreien Schiedsrichterauswahl? – Eine Skizze (1042)
• Klaus Sachs und Tilman Niedermaier, Overriding Mandatory Provisions Before Arbitral Tribunals – Some Observations (1051)
• Jürgen Samtleben, „Sandwich und Salat“ – Zur Inhaltskontrolle von Schiedsklauseln in Formularverträgen (1066)
• Rolf A. Schütze, Die Bedeutung des effektiven Schiedsortes im internationalen Schiedsverfahren (1077)
• Matthias Weller, Aufstieg und Fall des Doppelexequaturs in der deutschen Rechtsprechung (1087)
• Ali Yesilirmak and Ceyda Süral, Timing of Examination by Courts in respect of Arbitral Jurisdiction under Turkish Law (1101)

Bibliografie Bernd von Hoffmann (1113)

Recently, the 3rd edition of Professor Anton’s standard text on the Scottish rules of private international law has been published. The book has been completely revised by Professor Paul Beaumont (University of Aberdeen) and Professor Peter McEleavy (University of Dundee) paying regard to the fact that the subject area has been comprehensively restructured in recent years due to the process of Europeanisation. The Brussels I, Brussels IIa, Rome I, Rome II and Maintenance Regulations, as well as associated case law, are considered in detail with regard paid to their particular impact on Scots law. Further, the recent work of the Hague Conference on Private International Law is included, in particular the Conventions on Maintenance, Choice of Court, Protection of Adults, Protection of Children and Inter-country Adoption. In analysing European and global instruments the authors have drawn on their experience in participating in the negotiation processes in Brussels as well as from their work for the Hague Conference.

Here is the contents:

Introduction
Theories and methods
International and regional instruments: Implementation, integration and interpretation
Identification of the applicable law
Application of statutes and limits to the application of foreign law
State immunity
Connecting factors
Jurisdiction
External decrees: Recognition and enforcement
Choice of law in contractual obligations – Rome I regulation
Arbitration
Foreign money liabilities
Bills of exchange and letters of credit
Choice of law in noncontractual obligations
Marriage, civil partnership and cohabitation
Divorce and dissolution
Effects of marriage and divorce on property
Children
Maintenance
Adults with incapacity
Property
Trusts
Administration of estates of persons deceased
Succession
Companies, firms and associations
Bankruptcy
Procedure and evidence

More information can be found at the publisher’s website.

The latest issue of “Praxis des Internationalen Privat- und Verfahrensrecht (IPRax)” has just been released. The table of contents is available on the IPRax-Homepage and reads as follows:

Articles:

H.-P. Mansel/K. Thorn/R. Wagner,  ­Europäisches Kollisionsrecht 2011: ­Gegenläufige Entwicklungen, p. 1:

The article gives an overview on the developments in Brussels in the judicial cooperation in civil and commercial matters from November 2010 until October 2011. It summarizes current projects and new instruments that are prevently making their way through the EU legislative process. It also refers to the laws enacted on a national level in Germany which are a consequence of the new European instruments. Furthermore, the article shows areas of law where the EU has made use of its external competence. The article discusses both important decisions and pending cases before the ECJ as well as important decisions from German courts touching the subject matter of the article. In addition, the present article turns to the current projects of the Hague Conference as well.

C. F. Nordmeier, Stand, Perspektiven und Grenzen der Rechtslagenaner­kennung im europäischen Rechtsraum ­anhand Entscheidungen mitglied­staatlicher Gerichte, p. 31:

Current judgments of the ECJ – most recently in Runevi?-Vardyn – have given rise to the question if and under which circumstances a legal situation may be recognised, based on the rights of EU citizenship, in the European judicial area. The present article analyses the reception of the ECJ cases by courts of the member states. Based hereon, it is possible to demonstrate that the recognition of legal situations is not a new phenomenon. Some national courts resort to Art. 8 ECHR in order to generalize the ECJ decisions which does not convince without further differentiation. Regarding the conditions of application of rights derived from citizenship of the Union, the necessity of a cross-border element and the development of a substantial effect criteria are discussed. The analysed cases lead to the conclusion that it does not seem recommendable to replace classic private international law by a principle of recognition.

T. Rauscher, Von prosaischen ­Synonymen und anderen Schäden – Zum Umgang mit der Rechtssprache im EuZPR/EuIPR, p. 40:

EC/EU-Regulations on Conflict Law (Brussel I Regulation, Rome Regulations etc.) are suffering from significant linguistic problems. This article analyses different types of such defects including imprecisely used legal terms (like “damage” when used in the context of the concept of unjust enrichment), meaningless tautologies (like the use of “Schriftstück” and “Dokument” for what the English version consistently calls a “document”), redundancies in different Regulations featuring unclear variations of the respective wording or merely improper translations into other official languages of the EU of what originally had been developed in one of the EU’s working languages.
The author does not suggest at all to replace the system of multiple official languages with a system of only one legal lingua franca. However, the quality of the rule making and translation process should be given greater attention including the co-operation of lawyers and interpreters in this process and a mechanism of control in comparative networks. Last but not least, in order to improve the consistency of the entire system of Regulations, a systematic codification of European Conflict Law should be taken into consideration.

M. Günes/K. Freidinger, Gerichtsstand und anwendbares Recht bei ­Konsignationslagern, p. 48:

Consignment stocks are one of several techniques to ensure that goods reach the intended market. In particular consignment agreements are used as a method of commercial transactions for oversea markets. Despite the fact that such agreements are regularly bedded in an international context the applicable law and the place of jurisdiction for any disputes have not been discussed scientifically in German law yet. After assessing the possible legal nature(s) of contracts in the context of a consignment stock, the paper establishes that in most cases – if contractual provisions do not stipulate otherwise –, German law would declare the Law of the storage location applicable and the Court of the storage location competent if it had to assess a legal question concerning the storage contract (the master agreement) itself. In a case concerning an individual sale agreement to this master agreement, a German court should – in most cases – hold the law of the place of residence of the seller applicable and determine the place of jurisdiction in the exact same manner as it does in case of an ordinary sale agreement. Nevertheless, these findings are not the only possible ones. Therefore, it is recommendable to conclude consignment agreements with paying special attention to the questions of the applicable law and the place of jurisdiction. The parties and in particular the seller must hereby consider that any agreed legal system may not be applied to the questions of title and the retention of the title in the goods.

C. Luttermann/S. Geißler, Haftungs­fragen transnationaler Konzern­finanzierung (cash pooling) und das Bilanzstatut der Gesellschaft, p. 55:

We will enter a core domain of international legal practice and jurisprudence: Companies are globally organised as groups, consisting of numerous corporations (legal entities); as a rule, these are financed within the framework of common cash management in the affiliate relations (cash pooling). Under the dominion of the separate legal entity doctrine, this is problematic, for the individual corporation has only limited “assets”. These have to be determined on the basis of accounting law. This means that transnationally, it is a matter of central questions of liability and in general, for an adequate asset order, a change of perspective regarding conflict of law rules, as will be shown: Instead of dealing with the classic company statute regarding organisational law (lex societatis), the material issue is rather which accounting law is valid for the individual company and its valuation (accounting statute of the company). This is the necessary basis on which a sustainable legal order can be developed. The fact that this is still lacking is illustrated by the ongoing worldwide “financial crisis” with largely ailing balance sheets (financial reporting).

Case Notes

D.-C. Bittmann, Ordnungsgeldbeschlüsse nach § 890 ZPO als ­Europäische Vollstreckungstitel? (BGH, S. 72), p. 62:

In the decision reviewed in this article the German Federal Supreme Court held that penalty payments according to § 890 ZPO cannot be issued as European Enforcement Orders. The Court is reasoning that a decision imposing a penalty payment does not comply with the procedural minimum standards set in force by Regulation (EU) 805/2004. Decisions according to § 890 ZPO especially do not inform the debtor about how to contest the claim and what the consequences of not contesting are (art. 17).
The following article agrees with this result. It looks, however, critically at the way of reasoning of the Federal Supreme Court. The central point of the decision is the question, who is entitled to enforce a penalty payment. Different from the French system, according to which a penalty payment (astreinte) goes to the claimant of the injunctive relief, which shall be enforced, penalty payments according to § 890 ZPO flow into the treasury. As a consequence, in Germany the claimant of an injunctive relief cannot apply for a penalty payment issued as European Enforcement Order.

D. Schefold, Anerkennung von Bank­sanierungsmaßnahmen im EWR-Bereich (LG Frankfurt a.M., S. 75), p. 66:

On appeal against a preliminary seizure order, the district court in Frankfurt on Main held that such an order by a German court against a German branch of an Icelandic credit institution violates the European directive 2001/24/EC, adopted for the entire European Economic Area (EEA), on the reorganisation and winding up of credit institutions when the credit institution undergoes reorganisation in its home state and the reorganization procedure entails a suspension of enforcement. In line with art. 3 of directive 2001/24/EC, the district court held that the administrative or judicial authorities of the home member state of a credit institution are alone competent to decide on implementation measures for a credit institution, including branches established in other member states. Such measures are fully effective according to the law of the home member state, including against third parties in other member states, and subject to mutual recognition throughout the EEA without any further formalities.

Overview over Recent Case Law

OLG München 19.10.2010 31 Wx 51/10, Noterbrecht nach griechischem Recht des einzigen Sohnes eines in Deutschland?1. ansässigen und verstorbenen Auslandsgriechen. Die Rückkehr nach Griechenland zur Ableistung des Wehrdienstes?2. stellt jedenfalls dann eine Aufgabe des Wohnsitzes in Deutschland dar, wenn der Wehrpflichtige seinen Hausstand auflöst und die gesamte ­Familie nach Griechenland umzieht. [E. J.], p. 76

no abstract

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M. Pazdan, Das neue polnische Gesetz über das internationale Privatrecht, p. 77:

On 16th of May, 2011, the new act on private international that was enacted on the 4th February, came into force. The new law replaces the old act from 1965. It is harmonized with European private international law. The act governs matters excluded from the scope of regulations Rome I and Rome II and supplements the Hague Convention of 19th October, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children with respect to issues not regulated therein.
The act of 2011 fills out many of the gaps that existed previously. For example, it determines the law applicable to power of attorney, personal rights, name and surname of a person, as well as to arbitration agreement and intellectual property. It also alters some of the rules adopted under the law of 1965. It permits, inter alia, a choice of law for matrimonial property regimes, marriage contract and succession. Moreover, the obligations arising out of unilateral legal acts have been treated differently than in the law of 1965. As with respect to the formal validity of legal acts related to the dispositions of immovable property or corporate matters (such as creation, transformation or liquidation of a legal entity), the new law gives up the rule according to which it was sufficient to satisfy the requirements of the form of lex loci actus.

Finally, the act establishes a general rule in article 67, which applies in the circumstances where the act itself or other provisions of Polish law fail to indicate governing law. The provision is based on the concept of the closest connection.

M. Melcher, Das neue österreichische Partnerschaftskollisionsrecht, p. 82:

Due to the introduction of the registered partnership (“eingetragene Partnerschaft”) as a legal institution for same-sex couples in Austria in January 2010, several provisions were added to the Austrian Private International Law Act (IPRG), which determine the law applicable to the establishment (§ 27a IPRG), the personal effects (§ 27b IPRG), the property regime (§ 27c IPRG) and the dissolution (§ 27d IPRG) of registered partnerships. The article analyzes the personal and temporal scope of application and describes the new conflict rules. Besides, a thorough assessment of the applied connecting system and its impact on registered partnerships is included, which identifies the inconsistency of connecting factors regarding the establishment and the dissolution of registered partnerships and the non-adaptation of conflict rules on inheritance, surnames and adoption to the particularities of registered partnerships as main areas of concern.

P. F. Schlosser,  Aus Frankreich Neues zum transnationalen einstweiligen ­Rechtsschutz in der EU (Cour de cassation, 8.3.2011 – 09-13830 und Cour de cassation, 4.5.2011 – 10-13712), p. 88:

The author informs the readers of two decision of the French Cour de cassation (8 March 2011 09-13830 and 4 May 2011 10-13712) which according to him should be supported.
In the later decision the Cour de cassation is confirming its prior ruling that the rules of the Brussels I Regulation on provisional, including protective, measures cover measures for obtaining evidence. The German doctrine is spit on that issue. The Cour de cassation should, however, be encouraged to continue emphasizing that the Brussels I Regulation covers only evidentiary measures to be granted in a case of urgency.
In the first decision the issue was the binding character of a Greek court decision refusing, after opposition of the debtor, to order the arrest of a seagoing vessel anchoring in a Greek port. When subsequently the vessel was anchoring in the port of Rouen the creditor tried again to obtain an arrest invoking the more creditor-friendly rules of French law. But he was again unsuccessful The Cour de cassation decided that pursuant to Art 32 Brussels I Regulation foreign decisions refusing to grant provisional measures must be recognized. The innovative nature of the decision is due to the fact that for the first time the issue of the binding force of a decision refusing to grant provisional protection was discussed. There is no trace of such a discussion in previous case law or legal doctrine.

H. Wais, Zwischenstaatliche Zuständigkeitsverweisung im Anwendungsbereich der EuGVVO sowie Zuständigkeit nach Art. 24 S. 1 EuGVVO bei rechtsmiss­bräuchlicher Rüge der Unzuständigkeit (Hoge Raad, 7.5.2010 – 09/01115), p. 91:

In this decision of the Dutch Hoge Raad, which deals with an alimony dispute between Dutch citizens domiciled in Belgium, three main issues arise: first, the applicability of the Brussels I-Regulation in cases where both parties are domiciled in the same member state; second, the observation of a cross-border transfer of a case on the grounds of a bilateral treaty when the Brussels I-Regulation is applicable; and third, the possibility of taking into account in its scope the abuse of process of one party. This article examines these questions, before presenting some thoughts on a possible alternative approach.

C. Aulepp, Ein Ende der extraterritorialen Anwendung US-amerikanischen ­Kapitalmarkthaftungsrechts auf Auslandstransaktionen? (US Supreme Court, 24.6.2010 – No. 08-1191 – Morrison v. National ­Australia Bank Ltd.), p.95:

U.S. law provides for a broad issuer liability for securities fraud, especially under § 10(b) Securities Exchange Act of 1933 in connection with SEC Rule 10b-5. Together with the availability of opt-out class actions, this sets the United States apart from most other jurisdictions. In the past, the U.S. Federal Courts of Appeal have held that § 10(b) applies extraterritorially if there are significant effects on American investors or the American market; or if significant conduct in the US contributed to the fraud scheme. In a landmark decision, the U.S. Supreme Court held in Morrison v. National Australia Bank, Ltd., 130 S. Ct. 2869 (U.S. 2010) that § 10(b) of the Exchange Act and Rule 10b-5 possess no extraterritorial reach. It adopted a bright-line rule that these provisions only apply to transactions in securities listed on domestic exchanges, and domestic transactions in other securities. The author argues that the Morrison decision constitutes a step in the right direction, as it provides a certain degree of legal certainty for transnational issuers in a previously convoluted area of international securities law. It is submitted that Morrison might provide valuable impulses for resolving conflicts of law in securities disputes within the European Union as well, as a transaction-base rule like the one articulated in Morrison can well be integrated within the framework of the Rome I and Rome II Regulations.

Announcements

H.-P. Mansel, Werner Lorenz zum 90. Geburtstag, p. 102

no abstract

E. Jayme,  Zur Kodifikation des Allgemeines Teils des Europäischen ­Internationalen Privatrechts – 20 Jahre GEDIP (Europäische Gruppe für Internationales Privatrecht) – Tagung in Brüssel, p. 103

no abstract

The latest issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht – The Rabel Journal of Comparative and International Private Law (RabelsZ)” has just been released. It contains – among others – articles on the recent Chinese and Japanese Codifications on Private International Law. The table of contents reads as follows:

Articles:

Knut Benjamin Pissler, The New Private International Law of the People’s Republic of China: Cross the River by Feeling the Stones, pp. 1-46

Abstract:

On October 28, 2010, the “Law of the Application of Law for Foreign-related Civil Relations” was promulgated in the People’s Republic of China. The law aims to consolidate the Chinese conflict of laws regime and signals a new step towards a comprehensive codification of civil law in China. Drafting of the law started in the early 1990s and produced an academic model law in the year 2000. The Chinese legislator was reviewing a first draft in 2002. However, due to other priorities, it has only been since the beginning of 2010 that conflict of laws has been at the top of the legislative agenda. It comes, therefore, with little surprise that the law has some deficiencies and has been welcomed with mixed feelings by Chinese academics, who had only limited influence in the last stage of the drafting process.

The promulgated law emphasizes party autonomy and the closest connection as general principles. The law furthermore replaces nationality with habitual residence as the principal connecting factor for personal matters in Chinese private international law. However, some lacunas remain and new questions arise from the law. The legislative gaps concern the form of legal acts, the maintenance duties after divorce as well as the assignment and transfer of rights and duties in general. New questions arise from the provisions in the law establishing alternative connecting factors. In some cases the law requires application of the law which favours a particular party (in parent-child relationships, maintenance and guardianship). Chinese courts will therefore be confronted with the demanding task of comparing the legal regimes of different states in this respect. In other cases the law does not stipulate how to choose between the alternative connecting factors and it remains to be seen on which principles courts will render their decisions. Regarding the free choice of law with regard to rights in movable property provided by the law, it is additionally questionable how the rights of third parties are protected where they are not aware of such a choice of law. The decision of the legislator to exclude renvoi will force Chinese courts to apply foreign law even if the foreign private international law refers back to Chinese law.

Some of the particular provisions in the law are also a source for further problems: This concerns the application of the lex fori in divorce cases, the conflict of laws rule on trusts and arbitration clauses as well as on agency. Another point of uncertainty stems from older provisions of private international law that can still be found in several laws such as the Maritime Commercial Law, the Civil Aviation Law or the Contract Law. Those norms are still in force formally, but their relation to the new law is not sufficiently clarified. This uncertainty is particularly pronounced given that the relation of the new law to several provisions in the General Principles of Civil Law and the Inheritance Law is expressly regulated whereas the others are not even mentioned. Relating to international contract law and tort law, the Supreme People’s Court had issued some judicial interpretations in the past to solve certain questions, but it also remains uncertain whether these interpretations still apply after the enactment of the new law. It is expected that the Supreme People’s Court will issue a further judicial interpretation on private international law in the near future to help Chinese courts applying the new law.

Qisheng He, The EU Conflict of Laws Communitarization and the Modernization of Chinese Private International Law, pp. 47-85

Abstract:

Since 2007 the EU has adopted the Rome I, Rome II and Rome III Council Regulations codifying and unifying the respective conflict of laws rules in contract, tort and divorce and legal separation. The EU conflict of laws communitarization has attained great achievements. In 2010, China also adopted a self-contained statute – the Law of the People’s Republic of China on the Application of Law to Civil Relationships Involving Foreign Interests – which marks a significant step forward in the codification of Chinese private international law (PIL). However, the sources of Chinese PIL are still scattered and diverse because the PIL rules in existing commercial statutes have not been incorporated into this separate PIL statute. In contrast with the EU PIL, there are three issues on which China should devote special attention in further developing its PIL: Firstly, because of a mixed mode of legislation and the scattered sources of Chinese PIL, maintaining harmony between the new statute and the other sources still remains an important task. It remains very important for China to enact PIL provisions in future commercial law legislation. Secondly, the draft of the new statute includes no documents or materials which suggest that the Chinese legislative authority appreciated the tension and need for equilibrium between certainty and flexibility. Thus, the new statute manifests some problems in this regard. Lastly, current Chinese PIL is mainly focused on jurisdiction-selection rules, meaning that the formulation of reasonable content-preference rules is still an important task necessary for the modernization of Chinese PIL.

Yoshiaki Sakurada & Eva Schwittek, The Reform of Japanese Private International Law, pp. 86-130

Abstract:

Japan has reformed its Act on the Application of Laws. On 1 January 2007, the Hô no tekiyô ni kansuru tsûsoku-hô came into effect, a revised and renamed version of the Hôrei that dates from 1898. This article traces the legislative process and analyses the changes in the law, referring to the way they have been implemented in the court rulings rendered so far.

In sessions dating from May 2003 to July 2005, the Subcommittee for the Modernisation of the Act on the Application of Laws (part of the Legislative Commission of the Ministry of Justice) worked out fundamental innovations that were approved by the Legislative Commission of the Ministry of Justice on 6 September 2005. Based on this report, the Ministry of Justice, in cooperation with the Legislative Department of the Cabinet, drafted a bill that passed the Upper House on 19 April 2006 and the House of Representatives on 15 June 2006.

The reform is comprehensive. The only parts of the law that were exempt from amendment were international family and inheritance law, those already having been reformed in 1989. The present renewal focuses on the provisions concerning international contract law (Arts. 7-12) and the international law of torts (Arts. 17-22). Both sets of rules were further differentiated in their basic principles and complemented by special rules.

As for international contract law, the basic connecting factor is still the parties’ choice of law (Art. 7). A fundamental change in determining the law applicable to contracts was implemented by introducing a new subsidiary objective connecting factor in Art. 8. It provides that in the absence of a choice of law by the parties, the law of the place with which the contract was most closely connected should apply, and it specifies criteria for determining the closest connection. The newly created rules on consumer and labour contracts in Arts. 11 and 12 contain major innovations aiming at the protection of the weaker party. However, they impose upon the weaker party the burden of stipulating the effect of the protective provision in question, an aspect which was much criticised as it limits such protective effects.

The lex loci delicti, as the basic connecting factor for the law of torts, formerly stipulated in Art. 11(1) Hôrei, is maintained in Art. 17. Multilocal torts are governed by the law of the place where the results of the infringing act are produced (Art. 17 sentence 1). However, if it was not foreseeable under normal circumstances that the results would be produced at that place, the law of the place where the infringing act occurred shall apply (Art. 17 sentence 2). Special rules on product liability and on infringements of personality rights were added to the law in Arts. 18 and 19. The lex loci delicti as connecting factor can be deviated from in cases where a manifestly more closely connected place exists (Art. 20) or where the governing law is changed by the parties (Art. 21). The principle of double actionability, stating that Japanese law should be applied cumulatively to the applicable law regarding the grounds of and the compensation for damages incurred by a tort, was upheld in Art. 22 against severe criticism.

Apart from the points of critique addressed above, the new law provides for a differentiated set of rules that keep pace with the latest international developments.

Anne Röthel, Family and Property in English Law: Developments and Explanations, pp. 131-160(30)

Abstract:

In continental jurisdictions, there is still a strong link between family and property. Intestate succession, imperative inheritance rights as well as the concepts of matrimonial property regimes and in some aspects also tax law are designed to attribute property rights along personal relationships. The position of English law is often described as a contrasting concept, especially due to the deeply rooted reservations against fixed shares. However, continental lawyers often may be surprised with the actual outcome, especially in divorce cases. The article therefore explores the present state of English law concerning family and property. Is there a convergence in concepts as well? Is English law nowadays more favourable towards general normative models for the attribution of property within family relationships? Or is the 2010 decision of Radmacher v. Granatino another turning-point? The author argues that the inner explanation of these – at first glance – diverging steps lies in the recognition of equality in horizontal relationships. The outcome of cases like White v. White or Stack v. Dowden is only partly the effect of a generally altered view on family and property in English Law. Nonetheless, they reflect a different understanding of how and how much the state should regulate the family. Although all European legislations experience broadly similar demographic trends and social challenges, there remain decisive differences in legal concepts. The distance between English Law and the continent may be somewhat reduced – but it is far from disappearing.

Material:

Volksrepublik China: Erlass des Präsidenten der Volksrepublik China Nr. 36: Gesetz der Volksrepublik China zur Anwendung des Rechts auf zivilrechtliche Beziehungen mit Aussenberührung vom 28. 10. 2010, pp. 161-169 (Peoples Republic of China: Order of the President of the People’s Republic of China No. 36: The Law of  the Application of Law for Foreign-related Civil Relations of the People’s Republic of China, 28/10/2010)

Japan: Gesetz Nr. 78 über die allgemeinen Regeln über die Anwendung von Gesetzen (Rechtsanwendungsgesetz) vom 21. 6. 2006, pp. 170-184 (Japan: Act No. 78 of 2006 about General Rules for Application of Laws, 21/06/2006)

PRIME Finance, an international tribunal specialising in resolving financial disputes has launched its services today in the Hague.

The services that it offers are arbitration and mediation, so it is, in effect, an arbitration institution rather than the “latest of six international courts in the Netherlands“. The dispute resolution experts of Prime Finance are indeed specialists of international arbitration rather than international criminal law scholars, and the good air of the Hague seems unlikely to change the legal nature of this newcomer.

The press has reported that it is to be financed by the Dutch government and the city of the Hague for its first two years. The Netherlands has certainly a lot to gain if it can effectively compete with London and New York City as an international center for the resolution of financial disputes. For that purpose, one suspects that the founders of the institution have put more effort into attracting Lord Collins of Mapesbury and the Honourable Charles N. Brower than Luis Moreno-Ocampo.

Well, let’s the competition begin, then.