The British Institute of International and Comparative Law is organising an event to be held on 3 July on the recent developments pertaining to third-party effects of assignment.

Time: 16:30 – 19.00 (Registration open from 16:00)

Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

On 3-4 November 2017 the LUISS «Guido Carli» University School of Law, with the support of the International Law Association (Italian Branch) and the auspices of the International Insolvency Institute, will host in Rome a conference on «Cross-Border Business Crisis: International and European Horizons».

Three bilingual (English/Italian) sessions are scheduled: I) International and European Policies on Business Crisis (Chairperson: Luciano Panzani); II) Regulation 2015/848 within the European System of Private International Law (Chairperson: Stefania Bariatti); III) Cross-Border Insolvency and Italian Legal Order: Old and New Challenges (Chairperson: Sergio M. Carbone).

Speakers include academics and practitioners (Massimo V. Benedettelli, Giorgio Corno, Domenico Damascelli, Luigi Fumagalli, Anna Gardella, Lucio Ghia, Francisco J. Garcimartín Alférez, Antonio Leandro, Maria Chiara Malaguti, Fabrizio Marongiu Buonaiuti, Alberto Mazzoni, Paul Omar, Antonio Tullio, Robert van Galen, Francesca Villata, Ivo-Meinert Willrodt).

Most of them are members of the ILA-Italy Study Group on «Cross-Border Insolvency and National Legal Orders» and will discuss the findings of their research during the conference.

Program and details on registration are available here

Litigación international en la Unión Europea II- Ley aplicable a los contratos internacionales. Comentario al reglamento Roma I (International litigation in the European Union II. The law applicable to international contracts. Commentary to the Rome I Regulation) represents the second issue of a collection of treatises on European private international law.

The first part discusses the role and impact of the New Lex Mercatoria in international trade, with a comprehensive study of the Rome I Regulation on the law applicable to contractual obligations.

In the second part an analysis of more than one hundred international trade contracts is undertaken, with special attention to the structure of each contract and the applicable law. International sale of goods, countertrade, donations, international loan, agency contracts, factoring, confirming, crowdfunding, consulting, due diligence, leasing, supply, construction, deposit, management, outsourcing, catering, cash-pooling, engineering, guarantee contracts, timesharing, fiduciary contracts, franchising, distribution contracts, bank contracts, stock contracts, company contracts, joint venture and many others contracts are examined from a private international law perspective. The book also incorporates specific chapters on international consumer contracts and international labor contracts. Besides, special attention is paid to international insurance contracts.

The third part of the book addresses the international contracts drafting techniques with a focus on clauses which are usually included therein.

Several annexes with the best case-law in the field of international contracts and the most commonly used clauses complement the book.

Publishers: Thomson Reuters Aranzadi, 2017, 897 pages.

It does not happen too often that (the notion of) European Private International Law hits the front pages of the daily news. But on Friday it did: Germany’s foremost (conservative) newspaper, the Frankfurter Allgemeine Zeitung (FAZ), addressed A.G. Saugmandsgaard’s recent opinion on the recognition of private (Sharia) divorces under the Rome III Regulation. In so doing the FAZ expressly pointed out, on page 1, that it was unclear whether “European rules on choice of law (“Europäisches Kollisionsrecht”) actually applied in the case at bar.

The A.G.’s full opinion according to which the Rome III Regulation (if it applies at all) does not allow a private divorce to be recognized as valid where the applicable foreign law is discriminatory, is available here (in a number of languages, but not yet in English). The official press release can be downloaded here.

The advance of the English language article-of-article commentary gathers ever more momentum. The series of European Commentaries on Private International Law (ECPIL), edited by Ulrich Magnus and Peter Mankowski, welcomes the publication of its second volume addressing the Rome I Regulation. It assembles a team of prominent authors from all over Europe. The result is the by far most voluminous English language commentary on the Rome I Regulation, the prime pillar of European private international law and the fundament of cross-border trade with Europe. Its attitude is to aspire at leaving virtually no question unanswered. Parties’ choice of law, the tangles of objective connections under Art. 4, consumer contracts, employment contracts, insurance contracts, form and all the other topics of the Rome I Regulation attract the in-depth analysis they truly deserve.

The Faculty of Law of the University of Rome “La Sapienza” will host a German-Italian-Spanish conference on Thursday, 13th October 2016, on International Successions in Europe. The conference has been convened for the presentation of the volume “The EU Succession Regulation: a Commentary”, edited by Alfonso-Luís Calvo Caravaca (University “Carlos III” of Madrid), Angelo Davì (University of Rome “La Sapienza”) and Heinz-Peter Mansel (University of Cologne), published by Cambridge University Press, 2016. The volume is the product of a research project on “The Europeanization of Private International Law of Successions” financed through the European Commission’s Civil Justice Programme.

Here is the programme (available as .pdf):

Welcome addresses: Prof. Enrico del Prato (Director, Department of Legal Sciences, University “La Sapienza”); Prof. Paolo Ridola (Dean, Faculty of Law, University “La Sapienza”); Prof. Angelo Davì (University “La Sapienza”).

First Session

Chair: Prof. Ugo Villani (University of Bari, President of SIDI-ISIL – Italian Society for International Law)

• Prof. Javier Carrascosa González (University of Murcia): La residenza abituale e la clausola di eccezione (Habitual Residence and Exception Clause);
• Prof. Cristina Campiglio (University of Pavia): La facoltà di scelta del diritto applicabile (Choice of the Applicable Law by the Testator);
• Prof. Erik Jayme (University of Heidelberg): Metodi classici e nuove norme di conflitto: il regolamento relativo alle successioni (Traditional Methods and New Conflict Rules: the EU Regulation Concerning Succession);
• Prof. Claudio Consolo (University “La Sapienza”): Il coordinamento tra le giurisdizioni (Coordination between Jurisdictions).

Second Session

Chair: Prof. Sergio Maria Carbone (University of Genova)

• Prof. Peter Kindler (University of Munich): I patti successori (Agreements as to Succession);
• Round Table: The European Certificate of Succession
  Introduction: Prof. Claudio Consolo (University “La Sapienza”);
  Participants: Dr. Ana Fernández Tresguerres (Notary in Madrid); Dr. Paolo Pasqualis (Notary in Portogruaro); Dr. Fabian Wall (Notary in Ludwigshafen).

Concluding remarks: Prof. Sergio Maria Carbone (University of Genova).

(Many thanks to Prof. Fabrizio Marongiu Buonaiuti, University of Macerata, for the tip-off)

Robert Freitag, Professor for private, European and international law at the University of Erlangen, Germany, has kindly provided us with his following thoughts on the recast Insolvency Regulation.

It is already some time since regulation Rome I on the law applicable to contractual obligations was published in the Official Journal. Some dinosaurs of private international law might still remember that pursuant to art. 29 (2) of regulation Rome I, the regulation was (as a general rule) supposed to be applied “from” December 17, 2009. Quite amazingly, art. 28 of the regulation stated that only contracts concluded “after” December 17, 2009, were to be governed by the new conflicts of law-regime. This lapse in the drafting of the regulation gave rise to a great amount of laughter as well as to some sincere discussions on the correct interpretation of the new law. The European legislator reacted in time by publishing a “Corrigendum” (OJ 2009 L 309, p. 87) clarifying that regulation Rome I is to be applied to all contracts concluded “as from” December 17, 2009.

Although one can thoroughly debate whether history generally repeats itself, it obviously does so on the European legislative level at least with regard to the intertemporal provisions of European private international law. The 2015 recast regulation on insolvency proceedings (Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, OJ L 141, p. 19) has, according to its art. 92 (1), entered into force already on June, 26, 2015. However, the European legislator has accorded a lengthy transitional period to practitioners and national authorities. The recast regulation therefore foresees in art. 92 (2) that it will only be applicable “from” June 26, 2017. This correlates well with art. 84 (2) of the recast regulation, according to which “Regulation (EC) No 1346/2000 shall continue to apply to insolvency proceedings which fall within the scope of that Regulation and which have been opened before 26 June 2017”. Since the old regime will be applicable only before June 26, 2017, the uninitiated reader would expect the new regime to replace the current one for all insolvency proceedings to be opened “as of” or “from” June 26, 2017. This is, hélas, not true under art. 84 (1) of the recast regulation which states that “[…] this Regulation shall apply only to insolvency proceedings opened after 26 June 2017.” The discrepancy between the two paragraphs of art. 84 is unfortunately not limited to the English version of the recast regulation; they can be observed in the French and the German text as well. The renewed display of incompetence in the drafting of intertemporal provisions would be practically insignificant if on June 26, 2017, all insolvency courts will be closed within the territorial realm of the recast regulation. Unfortunately, June 26, 2017 will be a Monday and therefore (subject to national holidays) an ordinary working day even for insolvency courts. The assumption seems rather farfetched that on one single day next summer no European insolvency regime at all will be in place and that the courts shall – at least for one day – revert to their long forgotten national laws. Art. 84 (1) of the recast regulation is therefore to be interpreted against its wordings as if stating that the new regime will be applicable “as of” (or “from”) June 26, 2017. This view is supported not only by art. 92 (2) and art. 84 (2), but also by art. 25 (2). The latter provision obliges the Commission to adopt certain implementation measures “by 26 June 2019”.

It would be kind of the Commission if once again it would publish a corrigendum prior to the relevant date. And it would be even kinder if the members of the “European legislative triangle”, i.e. the Commission, the European Parliament and the Counsel, would succeed in avoiding making the same mistake again in the future although there is the famous German saying “Aller guten Dinge sind drei” and it is time for an overhaul of regulation Rome II namely with respect to claims for damages for missing, wrong or misleading information given to investors on capital markets …

The second edition of “Rome Regulations: Commentary on the European Rules of the Conflict of Laws”, edited by Gralf-Peter Calliess (Chair for Private Law, Private International Law, International Business Law and Legal Theory, University of Bremen), has just been published by Wolters Kluwer (1016 pp, 250 €). The second edition provides a systematic and profound article-by-article commentary on the Rome I, II and III Regulations. It has been extensively updated and rewritten to take account of recent legal developments and jurisprudence in the field of determining the law applicable to contractual (Rome I) and non-contractual (Rome II) obligations. It also contains a completely new commentary on the Rome III Regulation regarding the law applicable to divorce and separation. The aim of the book is to provide expert guidance from a team of leading German, Austrian and Swiss private international law scholars to judges, lawyers, and practitioners throughout Europe and beyond.

In her review of the first edition, my dear fellow conflictoflaws.net co-editor Giesela Rühl complained about a lack of diversity, pointing out that the circle of authors consisted exclusively of younger, male scholars (RabelsZ 77 [2013], p. 413, 415 in fn. 6). Well, not only have we male authors grown older since then; we now have quite a number of distinguished female colleagues on board, too: Susanne Augenhofer, Katharina de la Durantaye, Kathrin Kroll-Ludwigs, Eva Lein and Marianne Roth. For further details, see here.

“This book does what it promises, which is to provide judges and practitioners with easy access to the contents and interpretation of provisions of the Rome I and II Regulations. The thoroughness of the commentaries on most of the provisions also makes it a recommended read for scholars needing a quick orientation regarding several provisions, or wanting to make sure they have not missed out on important background information. A welcome addition to the various topic-based treatises regarding Rome I and II Regulations, the book has succeeded in its goal of furthering the valuable German tradition in terms of the European discourse.” (Xandra Kramer, review of the first edition, Common Market L. Rev. 2014, p. 335, 337)

The first issue of 2015 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht, is a special issue on the upcoming revision of the Brussels IIbis Regulation. Renowned scholars reflect on topical issues that need to be addressed in the revision. It includes the following contributions:

Ian Curry-Summer, ‘The revision of Brussels IIbis’ (Editiorial).

Alegría Borrás, ‘Grounds of jurisdiction in matrimonial matters: recasting the Brussels IIa Regulation’, p. 3-9.

Abstract. The recasting of the Brussels IIa Regulation implies different considerations. The first one is the review of the existing grounds of jurisdiction and how they can survive in the new text. The second is the possibility of the introduction of party autonomy and the hierarchization of the grounds of jurisdiction. These modifications imply the possibility of including changes in other rules related to jurisdiction. Although it would be a good result if all member states could accept the rules on matrimonial matters, as well as on jurisdiction and on the applicable law, this still seems to be difficult, taking into account the need for unanimity and the experience with the Rome III Regulation.

Th.M. de Boer, ‘What we should not expect from a recast of the Brussels IIbis Regulation’, p. 10-19.(sample copy)

Abstract. If the European Commission decides to recast the Brussels IIbis Regulation, it is likely to submit a proposal in which the focus will be on practical matters, such as judicial cooperation, the return of abducted children, or the further abolition of exequatur. The questionnaire that was used for the public consultation on the ‘functioning’ of Brussels IIbis did not leave much room for criticism of the Regulation’s points of departure with regard to jurisdiction in matters of parental responsibility. Yet, there are a few issues that may be more important than the prevention of parallel proceedings or the free circulation of judgments within the EU. One of them concerns the virtually unlimited scope of the regulation in cases in which jurisdiction is determined by prorogation (Article 12). Another problem results from the perpetuatio fori principle underlying Article 8. Both provisions confer jurisdiction even if the child is habitually resident outside the EU, which casts considerable doubt on the effectiveness of the court’s decision.

Marco Mellone, ‘Provisional measures and the Brussels IIbis Regulation: an assessment of the status quo in view of future legislative amendments’, p. 20-26.

Abstract. The European Commission is assessing the need for legislative amendments to EC Regulation No. 2201/2003 on the recognition and enforcement of decisions in the field of matrimonial and parental responsibility matters (the so-called ‘Brussels IIbis’ Regulation). One of the key points of that Regulation is jurisdiction and the enforcement of provisional measures. This delicate issue has generated an intense debate among scholars and many decisions of the European Court of Justice have dealt with this subject. Therefore, the author returns to the outcomes of this debate and focuses on the parallel solutions adopted by the Brussels system of jurisdiction and the enforcement of decisions in civil and commercial matters. Following this path, the author tries to assess the right legislative approach for eventual future interventions by the European legislature.

Janys M. Scott QC, ‘A question of trust? Recognition and enforcement of judgments’, p. 27-35.

Abstract. The European Commission and the European Council propose to revise Brussels IIa to abolish exequatur in all matters of parental responsibility. There are some good reasons for extending direct enforcement, but this should not be at the expense of abandoning safeguards including those relating to public policy, nor should it involve diluting protection for children. If the Regulation is to deliver enforcement measures that work, then consideration must be given to how enforcement is made effective. This is likely to involve a continued role for the courts of the member state where a judgment is to be enforced.

Francisco Javier Forcada Miranda, ’Revision with respect to the cross-border placement of children’, p. 36-42.

Abstract. Concerning the current Council Regulation (EC) 2201/2003, in application for almost 10 years, on 15 April 2014 the Commission adopted a report on its application in practice that was followed by an extensive public consultation. In 2015, the Commission has launched a call for expressions with a view to setting up a group of experts to assist the Commission in the preparation of a legislative proposal for a revision of the Regulation. Within this process, one of the most important topics to be discussed is the proper functioning of the placement of a child in another member state in accordance with Article 56. In this field, this report helps to identify precedents, challenges and problematic points to be addressed and details and discusses the national procedures as well as topics of mutual trust, the case law of the Luxembourg Court of Justice and the best interests of the child in these situations, all of which aim to highlight the many prospective improvements to be achieved.

This issue also includes a conference report authored by Jacqueline Gray ‘Congress report: ERA Annual Conference on European Family Law 2014’, p. 43-45.

by Jonas Steinle

Jonas Steinle, LL.M., is fellow at the Research Center for Transnational Commercial Dispute Resolution (www.ebs.edu/tcdr) at EBS Law School in Wiesbaden.

On 11 December 2014, Advocate General Jääskinen delivered its Opinion in Case C-352/13 (CDC). The case deals with the application of different heads of jurisdiction of the Brussels I Regulation to cartel damage claims.

The facts

The claim arises out of a complex cartel in the sector of the sale of hydrogen peroxide that covered the entire European Economic Area and had been going on for years before it was disclosed and fined by the European Commission. The Commission established that there was a single and continuous infringement of Art. 101 TFEU. The claimant, a Belgian company that is the buyer and assignee of potential damage claims resulting from this cartel, brought proceedings against the members of the cartel at the regional court (Landgericht) in Dortmund. The defendants in the case have their seats in different Member States including one defendant who has its seat in Germany.

Being seized in this complex case, the Landgericht Dortmund struggles with the application of several heads of jurisdiction under the Brussels I Regulation in order to establish its own jurisdiction. Therefore, the Landgericht Dortmund referred to following three questions to the CJEU as an order for reference:

1. Must Art. 6 No. 1 of the Brussels I Regulation be interpreted in a way that under circumstances like in the case at hand the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments from separate proceedings? Is it relevant that the claim against the defendant who is domiciled in the Member State of the seized court was withdrawn after service of process to the defendants?

2. Must Art. 5 No. 3 of the Brussels I Regulation be interpreted in a way that under circumstances like in the case at hand the place where the harmful event occurred or may occur may be located with respect to every defendant in any Member State where the cartel agreement had been concluded or implemented?

3. Does the well-established principle of effectiveness with respect to the enforcement of the prohibition of restrictive agreements allow to take into account a jurisdiction or arbitration agreement, even if that would lead to the non-application of jurisdiction grounds such as Art. 5 No. 3 or Art. 6 No. 1 Brussels I Regulation?

The Opinion

As for the application of Art. 6 No. 1 of the Brussels I Regulation, the Advocate General referred first to the well-established principle of the CJEU that a risk of irreconcilable judgments must arise in the context of the same situation of fact and law. For the same situation of fact, the Advocate General simply referred to the binding decision of the European Commission that had established a single and continuous infringement of Art. 1010 TFEU. For the same situation of law the Advocate General pointed out that the members of a cartel are severally and jointly liable and that there was the risk that different Member State courts would interpret the joint and several debt differently which could lead to conflicting decisions in different Member States courts. Furthermore, the Advocate General pointed out that Art. 6 para. 3 Rome II Regulation implicitly refers to Art. 6 No. 1 Brussels I Regulation so that in sum the Advocate General held that Art. 6 No. 1 Brussels I Regulation might be applied to a case like the one at hand. As for the withdrawal of the claim against the German anchor-defendant, the Advocate General did not consider this to be relevant for the jurisdiction of the referring court since he considered the service of process to be the relevant point in time to fulfil the criteria of Art. 6 No. 1 Brussels I Regulation.

With respect to Art. 5 No. 3 Brussels I Regulation, the Advocate General differentiated, again according to well-established case law of the CJEU, between the place giving rise to the damage and the place where the damage occurred. However, the Advocate General considered both alternatives of Art. 5 No 3 Brussels I Regulation to be inapplicable to the case at hand. The Advocate General observed that in a case of a long-standing and wide-spread cartel like the one at hand, it is essentially impossible to identify one single place where the event giving rise to the damage took place. Similarly, the place where the damage occurred would lead to the place of the claimant’s seat as the relevant place of jurisdiction which is contrary to the purpose of the Brussels I Regulation. Hence, the Advocate General held that Art. 5 No. 3 Brussels I Regulation is in applicable in a case like to one at hand.

Finally, Advocate General Jääskinen considered the third question with respect to jurisdiction and arbitration agreements. He therefore drew the line between jurisdiction agreements under Art. 23 Brussels I Regulation on the one hand and jurisdiction agreements that designate Non-Member States courts or arbitration agreements on the other hand. As for agreements under Art. 23 Brussel I Regulation, the Advocate General referred to the principle of mutual trust and held that the principle of effectiveness could not hinder the application of Art. 23 Brussels and thereby the derogation of other grounds of jurisdiction in cartel damage claims. Contrarily, the Advocate General held that the principle of effectiveness with respect to the enforcement of the prohibition of restrictive agreements might render agreements of the second type inapplicable if an effective enforcement of EU competition law would not be assured.

Evaluation

The Opinion of the Advocate General is grist to the mill of the ongoing enhancement of private enforcement of competition law in the European Judicial Area. After the Directive on antitrust damage actions has been signed into law on 26 November 2014, jurisdiction in cartel damage claims is the last resort that has been left untouched so far. Jurisdiction is the first hurdle that potential claimants have to overcome in these types of cases. As one can see from the proceedings pending before the Landgericht Dortmund, these proceedings can be extremely complex and time-consuming. Guidance on these issues by the CJEU is therefore much awaited.

As the Advocate General points out in his Opinion (para. 7), it is the first time that the CJEU will have to decide whether and to what extent the substantive EU law (e.g. Art. 101 TFEU) influences the jurisdictional rules of the Brussels I Regulation in their application. According to the Advocate General, the Brussels I Regulation is not very well suited to enhance private enforcement of competition law (para. 8). The consequences that the Advocate General draws from this finding are noteworthy: As considers Art. 5 No. 3 Brussels I Regulation, being the core jurisdictional rule for cartel damages claims, the Advocate General simply promotes to not apply this rule in complex cases such as the one at hand (para. 47). He even goes further and calls for the European legislator to introduce delict-specific jurisdictional rules into the Brussels I Regulation (para. 10).

This line of argumentation is a striking move. The non-application of a head of jurisdiction in a complex case is somewhat surprising. However, this would not solve the existing problems since it remains unclear in which cases Art. 5 No. 3 Brussels might be still applied then. The call for the introduction of delict-specific rules into the Brussels I Regulation is even more problematic since it breaks with the general scheme of the Brussels I Regulation as a general and cross-cutting legal instrument that might uniformly be applied to any case that is not excluded from its scope. Instead of creating more exceptions in this complex area of law, the CJEU should build on the existing system of the Brussels I Regulation and come forward with some guiding principles for the referring court which are drawn from the idea of procedural justice and not so much from substantive law influences from the specific area of law.