Book: Pocar – Viarengo – Villata (Eds.), Recasting Brussels I

The Italian publishing house CEDAM has published a new volume on the review of the Brussels I regulation: “Recasting Brussels I“. The book, edited by Fausto Pocar, Ilaria Viarengo and Francesca Clara Villata (all from the Univ. of Milan) includes twenty-five papers divided into five parts, devoted to the scope of application (I), rules on jurisdiction (II), choice-of-court agreements (III), coordination of proceedings (IV) and recognition and enforcement of judgments (V).

Here’s the table of contents (.pdf file):

PART I – SCOPE OF APPLICATION

  • Rainer Hausmann, The Scope of Application of the Brussels I Regulation;
  • Ilaria Viarengo, The Removal of Maintenance Obligations from the Scope of Brussels I;
  • Claudio Consolo – Marcello Stella, Brussels I Regulation Amendment Proposals and Arbitration;
  • Peter Kindler, Torpedo Actions and the Interface between Brussels I and International Commercial Arbitration;
  • Stefano Azzali – Michela De Santis, Impact of the Commission’s Proposal to Revise Brussels I Regulation on Arbitration Proceedings Administered by the Chamber of Arbitration of Milan.

PART II – RULES ON JURISDICTION

  • Burkhard Hess, The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction;
  • Riccardo Luzzatto, On the Proposed Application of Jurisdictional Criteria of Brussels I Regulation to Non-Domiciled Defendants;
  • Fausto Pocar, A Partial Recast: Has the Lugano Convention Been Forgotten?;
  • Alexander R. Markus, Harmonisation of the EU Rules of Jurisdiction Regarding Defendants Outside the EU. What About the Lugano Countries?;
  • Ruggiero Cafari Panico, Forum necessitatis. Judicial Discretion in the Exercise of Jurisdiction;
  • Marco Ricolfi, The Recasting of Brussels I Regulation from an Intellectual Property Lawyer’s Perspective;
  • Eva Lein, Jurisdiction and Applicable Law in Cross-Border Mass Litigation;
  • Zeno Crespi Reghizzi, A New Special Forum for Disputes Concerning Rights in Rem over Movable Assets: Some Remarks on Article 5(3) of the Commission’s Proposal.

PART III – CHOICE-OF-COURT AGREEMENTS

  • Ilaria Queirolo, Prorogation of Jurisdiction in the Proposal for a Recast of the Brussels I Regulation;
  • Christian Kohler, Agreements Conferring Jurisdiction on Courts of Third States;
  • Francesca C. Villata, Choice-of-Court Agreements in Favour of Third States’ Jurisdiction in Light of the Suggestions by Members of the European Parliament.

PART IV – COORDINATION OF PROCEEDINGS

  • Luigi Fumagalli, Lis Alibi Pendens. The Rules on Parallel Proceedings in the Reform of the Brussels I Regulation;
  • Pietro Franzina, Successive Proceedings over the Same Cause of Action: A Plea for a New Rule on Dismissals for Lack of Jurisdiction;
  • Lidia Sandrini, Coordination of Substantive and Interim Proceedings;
  • Cristina M. Mariottini, The Proposed Recast of the Brussels I Regulation and Forum Non Conveniens in the European Union Judicial Area.

PART V – RECOGNITION AND ENFORCEMENT OF JUDGMENTS

  • Sergio M. Carbone, What About the Recognition of Third States’ Foreign Judgments?;
  • Thomas Pfeiffer, Recast of the Brussels I Regulation: The abolition of Exequatur;
  • Stefania Bariatti, Recognition and Enforcement in the EU of Judicial Decisions Rendered upon Class Actions: The Case of U.S. and Dutch Judgments and Settlements;
  • Manlio Frigo, Recognition and Enforcement of Judgments on Matters Relating to Personality Rights and the Recast Proposal of the Brussels I Regulation;
  • Marco De Cristofaro, The Abolition of Exequatur Proceedings: Speeding up the Free Movement of Judgments while Preserving the Rights of the Defense.

– – –

Title: Recasting Brussels I, edited by F. Pocar, I. Viarengo and F.C. Villata, CEDAM (Series: Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale – Volume 76), Padova, 2012, XXIV – 382 pages.

ISBN 9788813314699. Price: EUR 32,50. Available at CEDAM.

(Many thanks to Prof. Francesca Villata for the tip-off)




Book on the Brussels I Review Proposal

A new book on the Brussels I Review Proposal was just published. It is edited by Eva Lein, who is the Herbert Smith Senior Research Fellow in Private International Law at the British Institute for International and Comparative Law.

The Brussels I Review Proposal Uncovered includes the following contributions:

Foreword: The Right Hon the Lord Mance

1.     The Brussels I Review Proposal – An Overview (Pamela Kiesselbach)

2.     A Neverending Story? Arbitration and Brussels I: The Recast (Jonathan Harris and Eva Lein)

3.     The Application of the Brussels I Regulation to Defendants Domiciled in Third States: From the EGPIL Proposal to the Commission Proposal (Alegría Borrás)

4.     The Brussels I Regulation in the International Legal Order: Some Reflections on Reflectiveness (AlexanderLayton)

5.     Choice Of Court Agreements in the Review Proposal for the Brussels I Regulation (Ulrich Magnus)

6.     Lis Pendens and Third States: The Commission’s Proposed Changes to the Brussels I Regulation (Pippa Rogerson)

7.     The Proposed Recast of Rules on Provisional Measures under the Brussels I Regulation (Michael Bogdan)

8.     Free Movement of Judgments in the EU: Knock Down the Walls but Mind the Ceiling (Andrew Dickinson)

9.     The Brussels I Review Proposal: Challenges for the Lugano Convention? (Andreas Furrer)

10.  Protection Against the Abuse of Law in the Brussels I Review Proposal? (Luboš Tichý)

11.  The Revision of the Brussels I Regulation: A View from the Hague Conference (Marta Pertegas)

As announced earlier, a book launch reception will take place on June 27 at the BIICL.




Conference Announcement: Collective Redress in Cross-Border Context

Conference on Collective Redress in the Cross-Border Context
In the framework of the Henry G. Schermers Fellowship Programme<http://www.hiil.org/henry-g-schermers-fellowship>, held this year by Professor S.I. Strong, the Hague Institute for the Internationalisation of Law (HiiL) and the Netherlands Institute of Advanced Studies (NIAS)<http://www.nias.nl/Pages/NIA/2/764.bGFuZz1FTkc.html> announce a workshop on the theme ‘Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond.’
The workshop aims to explore the various means that can be used to resolve collective legal injuries that arise across national borders. The types of dispute resolution mechanisms to be discussed range from class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation. The workshop will bring together practitioners, academics, and representatives of non-governmental organisations, all of whom have an interest and expertise in public and private resolution of collective redress in the international realm.

For the first time, NIAS and HiiL are offering a works-in-progress conference in association with the Henry G. Schermers workshop. This conference is designed to allow practitioners and scholars who are interested in this area of law to discuss their work and ideas in the company of other experts in the field.

Confirmed speakers for the Schermers workshop include:
*   Jan Willem Bitter, Simmons & Simmons LLP/Netherlands Arbitration Institute (The Netherlands)   *   Christian Borris, Freshfields/German Arbitration Institute (Germany)   *   Laura Carballo Piñeiro, University of Santiago de Compostela (Spain)   *   Christopher R. Drahozal, University of Kansas (USA)   *   Gregory A. Litt, Skadden, Arps, Slate, Meagher & Flom LLP (USA)   *   Daan Lunsingh Scheurleer, NautaDutihl (The Netherlands)   *   Gerard Meijer, Nauta Dutihl/Erasmus University Rotterdam/PRIME Finance (The Netherlands)   *   Rachel Mulheron, University of London, Queen Mary (UK)   *   Victoria Orlowski, ICC International Court of Arbitration (France)   *   Geneviève Saumier, McGill University (Canada)   *   Garth Schofield, Permanent Court of Arbitration (The Netherlands)   *   S.I. Strong, Henry G. Schermers Fellow, HIIL/NIAS, University of Missouri (USA)
The three-day event will be held June 20-22, 2012, at the NIAS site in Wassenaar, twenty minutes outside of the Hague.  The events are free to the public, but registration is required.  For more information on the event, including the full programme for both the Schermers workshop and works in progress event, see the HiiL website at: http://www.hiil.org/events/hiil-nias-workshop-collective-redress.  Questions may also be directed to Professor S.I. Strong at strongsi@missouri.edu<mailto:strongsi@missouri.edu>.




First Issue of 2012’s Revue Critique de Droit International Privé

Revue Critique DIPThe last issue of the Revue critique de droit international privé was just released. It contains four articles and several casenotes.

The first article is a survey of the 2011 Polish law of private international law by the late Tomasz Pajor, who was a professor at Lodz University (La nouvelle loi polonaise de droit international privé).

The second article is authored by Isabelle Veillard and explores the scope of res judicata of arbitral awards (Le domaine de l’autorité de la chose arbitrée). It is this only one to include an English abstract:

Expanding from specific arguments to the cause of action itself, the requirement that the dispute be concentrated may, in the field of arbitral res judicata, be beneficial from the standpoint of procedural speed and fairplay, but it threatens the adversarial principle all the more so that there is a presumption in favour of renunciation of the right to appeal ; this is why the non-concentration of the legal grounds of action should not be sanctioned unless it is the fruit of gross negligence or abuse in the exercise of the right to bring suit. The distrust of French law towards res judicata could be mitigated in respect of arbitral awards given the contractual nature of arbitration, by the adoption as between the parties of a mechanism of collateral estoppel, along with safeguards designed to guarantee both efficiency and fairplay with the requirements of a fair trial ; the distinction between res judicata and third party effects suffices no doubt to protect the latter.

In the third article, Aline Tenenbaum, who lectures at Paris Est Creteil University, discusses the issue of the localization of financial loss for jurisdictional purposes in the light of the Madoff case (Retombées de l’affaire Madoff sur la Convention de Lugano. La localisation du dommage financier).

Finally, in the last article, Fabien Marchadier, who is a professor at Poitiers University, explores the consequences of the ECHR case Genovese v. Malta as far as awarding citizenship is concerned (L’attribution de la nationalité à l’épreuve de la Covnentino européenne des droits de l’homme. Réflexion à partir de l’arrêt Genovese c. Malte).




The Max Planck Institute Luxemburg for International, European and Regulatory Procedural Law

On June 1st, the Max Planck Society and the Government of the Grand Duchy of Luxemburg announced the foundation of a new Max Planck Institute for International, European and Regulatory Procedural Law (more information). Located at the Kirchberg Plateau, the Institute shall operate in three areas: the European law of civil procedure, international litigation and arbitration, financial markets and listed corporations. Professor Burkhard Hess (University of Heidelberg) and Professor Marco Ventoruzzo (University Bocconi Milano) accepted calls to the directorship of the Institute. They intend to start work in Luxemburg before the end of this year. A third Scientific Member of the Board of Directors will be appointed in coordination with the two Founding Directors. Slovenian legal expert Verica Trstenjak, who has been Advocate General at the European Court of Justice since 2006, is an External Scientific Member of the Institute.

The Luxembourg Institute shall comprehensively investigate modern civil procedural law, dispute resolution and different approaches to regulation. It focusses at European and international, at inter-disciplinary and comparative elements of dispute resolution and of regulation. Being the first Max Planck Institute on legal research located outside of Germany, it shall closely cooperate with the Faculty of Law, Economics and Finance of the Luxembourg University.

The Institute is seeking to hire senior and junior legal researchers either on a full time or temporary basis.

Several positions are available in the department for European and comparative procedural law. Interested candidates are kindly invited to send their applications to Professor Burkhard Hess. Please click here for further information.

Information regarding positions in the department of regulatory procedural law can be found here.

 




Folkman on International Judicial Assistance

Theodore J. Folkman, who practices at Murphy & King, P.C. in Boston, has just published International Judicial Assistance for Massachusetts Lawyers. Many readers will know Ted’s work from Letters Blogatory, the Blog of International Judicial Assistance and one of the great and most active blogs in North America on international civil procedure.

In a global economy, litigators are increasingly dealing with foreign parties, witnesses, evidence, and judgments in the course of representing their clients. International Judicial Assistance offers clear, practical guidance on the law, procedure, and best practices for accomplishing a number of essential actions requiring international judicial assistance: serving process, obtaining depositions and documentary evidence, and enforcing foreign judgments and arbitration awards. With frequent practice notes, sample forms, and concrete explanations, International Judicial Assistance is an indispensable resource for any litigator.

I think that one of the great advantages of Folkman’s book is that it does not only deal with issues which are common to all U.S. states (either because they are governed by federal law, or by an international convention), but it also presents in details the particular rules of one state (Massachusetts) for other issues. Many readers outside of the United States will appreciate to get clear answers on all issues, even when they are governed by state law.

More details on the book can be found here.




Second Issue of 2012’s Journal du Droit International

The second issue of French Journal du droit international (Clunet) for 2012 was just released. It contains four articles and several casenotes. A table of content is accessible here.

In the first article, Thomas Clay, who is a professor at Versailles Saint Quentin University, offers a survey of the French law on arbitration (« Liberté, Égalité, Efficacité » : La devise du nouveau droit français de l’arbitrage – Commentaire article par article).  The English abstract reads:

It was the long-awaited reform. The arbitration regulation has just been amended and modernized, more than thirty years after the previous regime came into force. This has been achieved by different means : by rewriting certain unclear or outdated sections, by implementing case law-developed solutions already being applied in arbitral proceedings and, finally, by promoting new (sometimes avantgardist) solutions. All the above has resulted in the enactement of a real new Arbitration act.

Therefore, an article-by-article review seems to be a suitable form for an accurate and comprehensive study. This study consists of a comparison between the replaced articles and the new ones, a an analysis of the first commentaries on the reform and an interpretation of the case law following the enactment of the new regulation.

The proposed analysis also evidences the main principles governing the new French law of arbitration. Surprisingly they are in fact rooted in the foundations, not only of private law, but also on the principles of our Republic since they apply (almost perfectly), our Republican maxim, except that brotherhood is substituted by efficiency (the later being more representative).

In conclusion, it is without any doubt a successful text and the long wait was worth it. However it is useful to explain the circumstances of its endless development, which has experienced many disruptions. The article below starts by describing such circumstances.

In the second article, Olivier Cachard, who is a professor of law at the university of Nancy, present the recently adopted Rotterdam Rules (La Convention des Nations Unies sur le contrat de transport international de marchandises effectué entièrement ou partiellement par mer (Règles de Rotterdam)).

The Rotterdam Rules, that were signed on 23th september 2009, were recently ratified by the Kingdom of Spain, while the maritime community is now expecting the ratification by the United States of America. The purpose of this Convention is to address the new realities of transportation by sea, going further than the antique Hague Rules. The scope of the Convention is larger, encompassing door-to-door transportation. Although the Convention dedicates substantial provisions to transportation documents, it is not limited to contracts where a bill of lading is issued. The new uniform regime is built on the traditional case law, but takes into consideration containers and tends to establish a new balance between carriers and shippers. The provisions dedicated to jurisdiction and arbitration deserve more criticism and fortunately are under a opt in regime.

In the third article, Thomas Schultz, who lectures at the University of Geneva, and David Holloway, who is barrister at Number 5 Chambers in London, provide an account of the emergence and development of comity in the history of private international law (Retour sur la comity . – Deuxième partie : La comity dans l’histoire du droit international privé). The English abstract reads:

In a series of two articles, published in the previous and the current issue of the Clunet, the authors provide an account of the emergence and development of comity in the history of private international law. In the previous article, the authors have reviewed the forces that led to strict territoriality in the 17th century and how comity became needed to mitigate it. In the current article, the authors discuss the historical development of the concept of comity in the context of the history of private international law generally. An examination of five issues that marked the history of comity seems to allow a global yet fragmented understanding of the concept: the idea of a natural or universal law of conflicts ; the theoretical building blocks of the modern interstate system; the normative character of a concept created specifically to avoid constraining sovereigns ; reciprocity as a principle of international collaboration; and the international dimension of private international law. The most critical finding of the study is this: the history of the comity principle negates the ideas that the very nature of comity requires bilateral reciprocity and that it is a strictly discretionary and internal principle.

Valérie Parisot, who lectures at the university of Rouen, discusses the implications of recent cases of the ECJ on choice of law in employment contracts (Vers une cohérence verticale des textes communautaires en droit du travail ? Réflexion autour des arrêts Heiko Koelzsch et Jan Voogsgeerd de la Cour de justice).

The multiplicity of Community legal provisions leads quite naturally to think about their coherence, especially as far as a uniform interpretation of common terminologies is at stake. Two recent judgments of the European Court of justice deal precisely with this matter. They decide that the ECJ’s case-law regarding the interpretation of the connecting factors of Article 5 (1) of the Brussels Convention of 27 September 1968 that are used to determine jurisdiction in matters relating to individual contracts of employment remains relevant to analyze the connecting factors of Article 6 (2) of the Rome Convention of 19 June 1980 and of Article 8 (2) of the Rome Regulation of 17 June 2008, concerning the law applicable to these contracts.

Article 6 (2) (a) of the Rome Convention must therefore be understood as meaning that, in a situation in which an employee carries out his activities in more than one Contracting State, the country in which the employee habitually carries out his work in performance of the contract, within the meaning of that provision, is that in which or from which, in the light of all the factors which characterize that activity, the employee performs the essential part of his obligations towards his employer (Heiko Koelzsch and Jan Voogsgeerd cases). Furthermore, article 6 (2) (b) of the Rome Convention, which makes subsidiary reference to the concept of “the place of business through which the employee was engaged” must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by his actual employment. The possession of legal personality does not constitute a requirement which must be fulfilled by the place of business of the employer within the meaning of that provision. Finally, the place of business of an undertaking other than that which is formally referred to as the employer, with which that undertaking has connections, may be classified as a « place of business » according to the same provision, if there are objective factors enabling an actual situation to be established which differs from that which appears from the terms of the contract, and even though the authority of the employer has not been formally transferred to that other undertaking (Jan Voogsgeerd case).




Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (3/2012)

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

  • Burkhard Hess: “Staatenimmunität und ius cogens im geltenden Völkerrecht: Der Internationale Gerichtshof zeigt die Grenzen auf” – the English abstract reads as follows:

This article deals with the decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), critically analysing the question of juridictional immunities of the the state in current public international law.

  •  Björn Laukemann: “Der ordre public im europäischen Insolvenzverfahren” – the English abstract reads as follows:

 The advancing integration of European civil procedure means that the criteria under which European insolvency judgments can be refused recognition on grounds of public policy are constantly modified. The European Insolvency Regulation is not excluded from such a development. Public policy is not something which is solely derived from national law. More and more, a European concept of public policy is becoming the benchmark for interpreting Art. 26. This article will focus on the analysis of the public policy clause in the light of international insolvency law principles – mainly the universal and immediate recognition of insolvency proceedings. Against this background, it will show why and to what extent the interpretation of Art. 26 of the Insolvency Regulation differs from that of Art. 34 n° 1 of the Brussels I Regulation, which is applied in the context of civil procedure. Due to the increasing harmonisation within the EU, the article will also shed light on the relation between the public policy exception and the need for a prior legal defence in the State in which the insolvency proceedings were opened.

  •  David-Christoph Bittmann: “Der Begriff der „Zivil- und Handelssache“ im internationalen Rechtshilfeverkehr” – the English abstract reads as follows:

 The OLG Frankfurt/Main had to decide on a case concerning the qualification of the term of “civil and commercial matters” in the German-British Convention on the conduct of legal proceedings of 20 March 1928. On the basis of this convention the High Court Auckland (New Zealand) requested the service of a petition by way of legal aid from the Amtsgericht Frankfurt/Main. Subject of this petition was a penalty, requested from the New Zealand Commerce Commission against the applicant. The Commission accused the applicant of having infringed the Commerce Act of 1986. The applicant opposed against the service of the petition that the Convention from 1928 is not applicable on the requested penalty. The OLG Frankfurt/Main followed this argumentation and denied a civil and commercial matter. The following article analyses the problem of the qualification of “civil and commercial matters” in international civil procedure law at the example of the penalties requested by the New Zealand Commerce Commission.

  •   Oliver L. Knöfel: “Ordnungsgeld wegen Ausbleibens im Ausland? – Aktuelle Probleme des deutsch-israelischen Rechtshilfeverkehrs” – the English abstract reads as follows:

 The article reviews a decision of the Higher Social Court of North Rhine-Westphalia (3.12.2008 – L 8 R 239/07), dealing with the question whether a contempt fine (Ordnungsgeld) can be imposed on a party to a lawsuit who has been summoned to appear before a German consul posted abroad or before a German judge acting on foreign soil, but who has failed to comply with the summons. The author analyses the relevant mechanisms of the Hague Evidence Convention of 1970 as well as German procedural law.

  •  Dirk Otto: “Präklusion und Verwirkung von Vollstreckungsversagungsgründen bei der Vollstreckung ausländischer Schiedsgerichtsentscheidungen” – the English abstract reads as follows:

 The German Federal Supreme Court refused to enforce a foreign arbitration award for lack of a valid arbitration agreement and held that a defendant, who objected against the arbitration throughout the proceedings is not estopped from invoking Art. V (1) (a) of the New York Convention (NYC) for having failed to initiate set-aside proceedings under the lex arbitri. The Supreme Court stressed that a defendant may opt not to commence court proceedings at the place where the award was rendered but may choose to resist enforcement under Article V NYC. This interpretation is in line with case law in other Convention countries. However, a defendant may be estopped from invoking grounds for non-enforcement if he participates in arbitration proceedings but fails to protest against any deficiencies. Furthermore, if a defendant does opt to seek annulment of an award at the place of origin, he has to put forward all reasons for setting aside, otherwise he may be precluded from raising them before the enforcing court.

  •  Frauke Wedemann: “Die Regelungen des deutschen Eigenkapitalersatzrechts: Insolvenz- oder Gesellschaftsrecht?” – the English abstract reads as follows:

 Under German law, shareholder loans are subordinate to the claims of all other creditors in the case of the insolvency of a company whose members are not personally liable. In its “PIN Group” decision, the German Federal Supreme Court (BGH) held that this rule also applies to companies founded in another EU Member State for which insolvency proceedings have been opened in Germany. The Court stated that the rule is to be characterised as a matter of insolvency law – not company law – and based this ruling on Art. 4(2)(g) and (i) of the European Regulation on Insolvency Proceedings. The author agrees with the decision, but critically examines and refines its reasoning. She analyses in detail whether the application of the German rule to a foreign company is compatible with the freedom of establishment (Art. 49, 54 TFEU). Furthermore she discusses the characterisation of other German rules concerning (1) the rescission of repayments of shareholder loans after the opening of insolvency proceedings or after the refusal to open such proceedings for lack of funds, (2) loans for which a shareholder has provided a security, and (3) the relinquishment of items or rights for use or exercise by a shareholder to the company. She argues that all these rules are to be characterised as matters of insolvency law.

  •  Heinrich Dörner: “Der Zugriff des Staates auf erbenlose Nachlässe – Fiskuserbrecht oder hoheitliche Aneignung?” – the English abstract reads as follows:

 The state’s right to succeed to heirless estates may be construed either as a succession under private law or as an act of occupation under public law. In the present judgement the “Kammergericht” deals with the legal nature of the state’s right of succession under the Civil Code of the former Russian Soviet Federative Socialist Republic and correctly characterises it as private intestate succession. According to the former Russian law of succession a cousin of the decedent was not entitled to a statutory portion. This regulation does not constitute an infringement of the German public order.

  •  Dirk Looschelders: “Der Anspruch auf Rückzahlung des Brautgelds nach yezidischem Brauchtum” – the English abstract reads as follows:

 In the discussed case the groom’s family agreed to pay nuptial money to the father of the bride in compliance with the requirements for marriage in the Yazidi tradition. According to this tradition and the parties’ agreement this money had to be repaid, because the marriage was dissolved after the wife had suffered under severe abuse by her husband.

The agreement on nuptial money has not to be qualified contractually but as a question of engagement. The determination of the statute of engagement is controversial, in the present case, however, German law is decisive according to all opinions. Pursuant to § 138 BGB the agreement on nuptial money is void as it violates public policy. A claim for repayment on grounds of unjustified enrichment fails due to § 817 sent. 2 BGB, because the violation of public policy is not only caused by the money receiving party but also the paying claimant.

  •  Martin Illmer: “West Tankers reloaded – Vollstreckung eines feststellenden Schiedsspruchs zur Abwehr der Vollstreckung einer zukünftigen ausländischen Gerichtsentscheidung” – the English abstract reads as follows:

 After the European Court of Justice’s decision in West Tankers and the Court of Appeal’s conclusions in National Navigation, anti-suit injunctions as well as declaratory decisions by the state courts at the seat of the arbitration regarding the existence and validity of the arbitration agreement are either not available or not effective in preventing torpedo actions frustrating the arbitration agreement. In light of this unsatisfactory status quo, after having succeeded in the arbitration proceedings in London (declaring West Tankers’ non-liability for the damage under dispute), West Tankers sought to enforce the arbitral award in England so as to prevent recognition and enforcement of a future Italian judgment on the merits. Whether an arbitral award constitutes a ground for refusing a declaration of enforceability of a foreign decision under Art. 34, 45 Brussels I Regulation is, however, disputed. The High Court as well as the Court of Appeal held that the issue was not decisive for the outcome of the case while it clearly was. This is at last proven by the fact that the High Court implicitly determined the issue by upholding the declaration of enforceability of the arbitral award. This article scrutinises the High Court’s decision and the Court of Appeal’s dismissal of the appeal in light of the interface of the Brussels I Regulation and arbitration. Furthermore, it discusses the crucial question whether an arbitral award may constitute a ground for refusing a declaration of enforceability under the Brussels I Regulation and whether such a ground would be compatible with the ECJ’s decision in West Tankers.

  •  Weidi LONG: “The First Choice-of-Law Act of China’s Mainland: An Overview” – the abstract reads as follows:

 On 28 October 2010, China promulgated the Act of the People’s Republic of China on Application of Law in Civil Relations with Foreign Contacts, which came into force in China’s Mainland on 1 April 2011. The Act is remarkable for its brevity and lack of concrete solutions. The legislators have opted for generality, while leaving specific issues to the courts and in particular, to the Supreme People’s Court. Thus, the legislature has merely set the stage for the judiciary by providing a preliminary framework for future Chinese private international law. Pending interpretive instruments by the Supreme People’s Court, this Note stays with an overview of the Act. It first introduces the legal background to Chinese private international law, followed by a brief retrospect of the legislative history of the Act. It then discusses the general features of the Act, viz., the residual role of the closest connection rule, the liberal attitude towards party autonomy, the free-spirited approach to forum mandatory rules, enhanced (possibilities of) content-orientation, and adoption of the habitual-residence principle. Finally, it concludes by observing that Chinese private international law is moving towards a regime with greater flexibility, and that this move is inspired by the demands for substantial justice and the wish to promote national interests.

  •  Duygu Damar:”Deutsch-türkisches Nachlassabkommen: zivilprozess- und kollisionsrechtliche Aspekte” – the English abstract reads as follows:

 The German-Turkish Agreement on Succession of 1929 is of substantial importance for more than one and a half million Turkish nationals with habitual residence in Germany. The Agreement on Succession does not only regulate the applicable law regarding movable and immovable estate as well as the international competence of German and Turkish courts, but also grants important powers, in line with given tasks, to German and Turkish consuls. These powers generally cause doubts in German practice, whether the certificate of inheritance should be issued by the Turkish consul in case of death of a Turkish national in Germany. The
article gives an overview on the conflict of laws rules set in the Agreement on Succession and clarifies the questions of civil procedure with regard to the issuance of certificates of inheritance and their consideration in Turkish law of civil procedure.

  •  Erik Jayme/Carl Friedrich Nordmeier on the conference of the German-Lusitanian Association in Cologne: “Anwendung und Rezeption lusophoner Rechte: Tagung der Deutsch-Lusitanischen Juristenvereinigung in Köln”
  •  Erik Jayme on art trade and PIL: “Kunsthandel und Internationales Privatrecht – Zugleich Rezension zu Michael Anton, Rechtshandbuch – Kulturgüterschutz und Kunstrestitutionsrecht”
  • Marc-Philippe Weller on the PIL Session 2011 of the Hague Academy of International Law: “Les conflits de lois n’existent pas! Hague Academy of International Law – Ein Bericht über die IPR-Session 2011”

 

Kein Abstract




Hague Academy of International Law: Summer Programme

The Hague Academy of International Law has recently released the programme for this year’s summer course in Private International Law:

30 July 2012: Inaugural Conference

Conflicts of Laws and Uniform Law In Contemporary Private International Law: Dilemma or Convergence?, Didier OPERTTI BADÁN, Professor at the Catholic University of Montevideo.

6 to 17 August 2012: General Course

The Law of the Open Society, Jürgen BASEDOW; Director of the Max Planck Institute for Comparative and International Private Law, Hamburg

30 July-17 August 2012: Special Courses

  • The Private International Law Dimension of the Security Council’s Economic Sanctions (30 July-3 August), Nerina BOSCHIERO; Professor at the University of Milan.
  • The New Codification of Chinese Private International Law (30 July-3 August), CHEN Weizuo; Professor at Tsinghua University, Beijing.
  • Applying Foreign Public Law in Private International Law – A Comparative Approach (30 July-3 August), Andrey LISITSYN-SVETLANOV,  Professor at the Institute of State and Law, Russian Academy of Sciences, Moscow.
  • Party Autonomy in Private International Law: A Universal Principle between Liberalism and Statism (6-10 August), Christian KOHLER; Honorary Director-General at the Court of Justice of the European Union, Luxembourg.
  • Applying the most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation (6-10 August), Maria Blanca NOODT TAQUELA; Professor at the University of Buenos Aires.
  • Bioethics in Private International Law (13-17 August), Mathias AUDIT; Professor at the University of Paris Ouest Nanterre La Défense
  • Compétence-Compétence in the Face of Illegality in Contracts and Arbitration Agreements (13-17 August), Richard H. KREINDLER; Professor at the University of Münster

More information is available on the Academy’s website.




Sciences Po Seeks to Recruit Professor of Private International Law

The law school of the Paris Institute of Political Science (Sciences Po) is seeking to recruit a professor of private international law.

Sciences Po Law School is advertising an open position for a professor of private international law (with public employee status). The expected starting date is September 1st, 2012.

Profile of Researcher and Teacher

Sciences Po Law School is looking for a professor of economic international law. The chosen candidate will be granted a teaching position at the Law School and within the University College of Sciences Po. He or she will conduct research with the faculty at the Law School, specifically in the field of international economic law, international arbitration, and international private law.

The chosen candidate must provide proof of research at an internationally recognized level at the forefront of these academic fields. The chosen candidate will be open to multidisciplinary research and will have to demonstrate an aptitude for collaborating with researchers outside of the field of law. The chosen candidate will also contribute to the creation of agreements with partners outside of Sciences Po.

The chosen candidate will have solid teaching experience and will have had demonstrated a capacity for innovation that matches the teaching model implemented by Sciences Po Law School.

Conditions for Recruitment

Because the position is a public employment position, all candidates must apply using the “Galaxie” portal through the French Ministry of Higher Education. All applications must be received within a month starting from the date of the position’s publication, which is expected to April 5, 2012

In addition to the required materials mentioned on the “Galaxie” portal, all applications must include:

– cover letter addressed to Professor Horatia Muir Watt, Head of the admissions committee
– comprehensive curriculum vitae that includes the list of all past research
– a short-form resume
– Three research samples that demonstrate the candidate’s aptitude for multidisciplinary legal research (maximum of 5 articles and/or books).

Candidates must send these documents to the address below:

Sciences Po – DRH Pôle académique
27 rue Saint Guillaume
75007 Paris

All applications will be carefully examined by an admissions committee as per the requirements laid out by the law 2007-1199 of August 10, 2007 concerning the public employment of teachers. An initial selection round will take place mid June. Those candidates whose applications are retained will be invited to an interview before the members of the admissions committee and the academic community of Sciences Po first weeks of July; the candidate will freely choose the subject of his presentation among his most recent research. He will then be interviewed by the admissions committee on his project both in research and teaching at Sciences Po.

Following the interviews, Sciences Po will make a final offer to the selected candidate.