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

Here is the contents:

• Anne Röthel/Evelyn Woitge: “Das Kollisionsrecht der Vorsorgevollmacht” – the English abstract reads as follows:

  Various European national laws have recently implemented powers of representation granted by an adult to be exercised when he or she is not in a position to protect his or her interests. The authors show the existence and scope of these powers of representation within Europe and identify the need for conflict norms for this legal institution. Based on an analysis of the respective rules in the Hague Convention on the international protection of adults, the authors highlight the need to find a national solution that acknowledges the special interests of incapable adults. They suggest a regulation for powers of representation in autonomous international private law that adapts the concept of the Hague Convention.

• Stefanie Sendmeyer: “Die Rückabwicklung nichtiger Verträge im Spannungsfeld zwischen Rom II-VO und Internationalem Vertragsrecht” – the English abstract reads as follows:

In private international law, it is highly disputed whether the law applicable to claims aiming to reverse enrichment in case of a void contract is determined by Art. 10 (1) lit. e) Rome II Regulation or by Art. 10 (1) lit. e) Rome Convention or Art. 12 (1) lit. e) Rome I Regulation respectively. After a short analysis of the current state of discussion, it is shown that the argument emanates from the erroneous assumption that the question of restitution in such cases is a matter of unjust enrichment according to Art. 10 Rome II Regulation as well as a topic of private international law concerning contractual obligations. In fact, the question has to be solved by clearly differentiating between contractual and non-contractual obligations and, therefore, between the scope of the Rome II Regulation and the scope of the instruments of private international law dealing with contractual obligations. In consistence with European international procedural law, restitution in case of a void contract is considered a contractual obligation and, therefore, the applicable law is determined by Art. 10 (1) lit. e) Rome Convention or Art. 12 (1) lit. e) Rome II Regulation respectively.

• Anatol Dutta: “Grenzüberschreitende Forderungsdurchsetzung in Europa: Konvergenzen der Beitreibungssysteme in Zivil- und Verwaltungssachen?” (on ECJ, 14.1.2010 – C-233/08 – Milan Kyrian ./. Celní úrad Tabor) –  the English abstract reads as follows:

The dogma that claims of the State based on its penal, revenue or other public law are not enforceable abroad – a doctrine also known as the revenue rule – is more and more displaced by European instruments obliging the Member States to collect public law claims of their fellow Member States. One example for this development is the Tax Recovery Directive 76/308/EC (later: 2008/55/EC, now: 2010/24/EU) on the mutual assistance for the recovery of claims relating to taxes, duties and other measures – an instrument, which has been gradually extended to all taxes levied by the Member States. The present article, which discusses a recent decision of the European Court of Justice interpreting the Tax Recovery Directive, attempts to highlight some similarities between the European enforcement rules for public law claims and those for private law claims. These similarities do not only allow fertilisation across the public-private law border when applying and interpreting the different enforcement rules, but once more demonstrate that the revenue rule should be reconsidered.

• Sebastian Mock: “Internationale Streitgenossenzuständigkeit” – the English abstract reads as follows:

The international jurisdiction for claims against several defendants at the domicile of one of the defendants as today established by Art. 6 No. 1 Brussels I Regulation is unknown in several member states and consequently causes general doubts due to the existing possibilities of manipulation in this context. Although the European Court of Justice reflected these doubts by establishing the additional need of the risk of irreconcilable judgments resulting from separate proceedings in the application of Art. 6 No. 1 Brussels Convention and Art. 6 No. 1 Lugano Convention – which was later recognized by the European legislator in the drafting of Art. 6 No. 1 Brussels I Regulation – the determination of this additional requirement is still left unclear. In its recent decision the German Federal Court of Justice delivered a rather broad understanding of this requirement. The court held that the jurisdiction under Art. 6 No. 1 Lugano Convention/Art. 6 No. 1 Brussels I Regulation does not require that all defendants have to be sued at the same time. Moreover the court held that the violation of a duty of a member of the board of directors is sufficient to establish a jurisdiction under Art. 6 No. 1 Lugano Convention/Art. 6 No. 1 Brussels I Regulation for a claim against the member of the board of directors when the plaintiff already filed a claim against the company of the director. However, the author doubts that this ruling can be considered as a general principle in the application of Art. 6 No. 1 Lugano Convention/Art. 6 No. 1 Brussels I Regulation and shows that the ruling has to be seen in context with a special provision of the applicable Swiss corporate law.

• Martin Schaper: “Internationale Zuständigkeit nach Art. 22 Nr. 2 EuGVVO und Schiedsfähigkeit von Beschlussmängelstreitigkeiten – Implikationen für den europäischen Wettbewerb der Gesellschaftsrechte” – the English abstract reads as follows:

Art. 22 (2) Brussels I Regulation establishes an exclusive jurisdiction of a Member State’s court for proceedings which have as their object, among others, the nullity or the dissolution of companies and the validity of the decisions of their organs. This jurisdiction depends on where the company’s seat is located. For determining this seat the court has to apply its rules of International Private Law (lex fori). Although Germany generally adheres to the real seat theory, the OLG Frankfurt a.M. (Higher Regional Court) decided that a private limited company’s statutory seat is the relevant factor for determining the exclusive jurisdiction.

Since the freedom of establishment, as interpreted by the Court of Justice of the European Union, promoted corporate mobility there is an increasing demand for settling disputes not in the state of incorporation, but in the country where the major business operations take place. Therefore, the article examines the possibility of arbitration proceedings on the nullity and avoidance of decisions taken by shareholders’ meetings in an international context.

Finally, based on the experience with the state competition for corporate charters in the USA, the impact of a jurisdiction’s courts and the admissibility of arbitration proceedings is analysed within the context of regulatory competition in company law in Europe.

• Veronika Gärtner: “Internationale Zuständigkeit deutscher Gerichte bei isoliertem Versorgungsausgleichsverfahren” – the English abstract reads as follows:

Until recently, German law did not know an explicit rule on international jurisdiction with regard to proceedings dealing with the adjustment of pension rights between divorced spouses. The Federal Court of Justice held in several judgments that international jurisdiction with regard to the adjustment of pension rights followed – also in cases where those proceedings are initiated independently from divorce proceedings – the rules of international jurisdiction with regard to the divorce proceedings due to the strong link between both issues.

With reference to this case law, the Regional Court of Karlsruhe held in its decision of 17 August 2009 (16 UF 99/09) that German courts lacked international jurisdiction with regard to (independent) proceedings on the adjustment of domestic pension rights between two Portuguese divorced spouses habitually resident in Portugal, based on the argumentation that Art. 3 Brussels II bis Regulation had to be applied analogously with regard to the question of international jurisdiction. Due to the fact that the requirements of this provision were not met, German courts were – according to the Higher Regional Court Karlsruhe – not competent to rule on the adjustment of the (German) pension rights.

This result is undoubtedly incorrect under the present legal situation: With effect of 1 September 2009 – in the course of a general revision of the procedural rules in family law and non-contentious cases – a new rule has been introduced stating explicitly that German courts have international jurisdiction with regard to proceedings on the adjustment of pension rights inter alia in cases concerning domestic (pension) rights (§ 102 Nr. 2 FamFG).

However, the author argues that also before the entry into force of this new rule, the Regional Court of Karlsruhe should have answered the question of international jurisdiction in the affirmative: First, it is argued that the court’s reference to Art. 3 Brussels II bis Regulation was misplaced since – as Recital No. 8 of the Brussels II bis Regulation illustrates – “ancillary measures” – and therefore also proceedings on the adjustment of pension rights of divorced spouses – are not included into the scope of application of Brussels II bis.

Further, the author argues that the negation of international jurisdiction in cases concerning domestic (pension) rights leads to a denial of justice. Therefore it is argued that international jurisdiction could – and should – have been assumed on the basis of general principles of jurisdiction.

• Gerhard Hohloch/ Ilka Klöckner: “Versorgungsausgleich mit Auslandsberührung – vom alten zum neuen Recht – Korrektur eines Irrwegs” – the English abstract reads as follows:

On the 11th of February 2009, the Federal Supreme Court of Justice has had its first opportunity to decide whether or not the Dutch provisions on pension rights adjustment were to be regarded as equivalent to the German “Versorgungsausgleich” (VA) in the matter of Art. 17 III 1 EGBGB. Though until then this was generally accepted, the Court decided to deviate from the established opinion. In the course of the 2009 Reform, Art. 17 III EGBGB was revised and significantly restricted regarding its field of application. According to this new regulation, German law must now be applicable in order for the plaintiff to successfully be able to claim an adjustment of pension rights in Germany. Starting off with a critical examination of the Supreme Court’s decisions, the authors then point out the impact of the Court’s adjudication on the interpretation and the application of the new Art. 17 III EGBGB.

• Pippa Rogerson: Forum Shopping and Brussels II bis (on: High Court of Justice, 19.4.2010 – [2010] EWHC 843 (Fam) – JKN v JCN)

Sometimes real life cases focus academic attention on important issues of principle. In JKN v JCN a husband and wife from New York had been living in London for 12 years and had four young children together. Then they returned to New York where they are all now residing for the foreseeable future. The marriage has broken down and a divorce, financial settlement and arrangements for the children are required. Which court should deal with these matters? The wife commenced proceedings in England under Brussels II bis and the husband in New York. The parties had both UK and US citizenship and the husband at that time was still resident in England. Both parties were pursuing proceedings in a court which provided that party with some advantages. Ideally, the parties should come to a settlement without needing the court’s determination. If not, preferably a single court should adjudicate matters. This is achieved within the EU by the lis pendens rule in Brussels II bis. However, there is no similar regime operating with non-Member States. A proliferation of judgments over the same matter is wasteful of the parties’ time and assets as well as of the courts’ resources. It also leads to problems of enforcement of possibly irreconcilable judgments.

• Axel Kunze/ Dirk Otto: “Internationale Zwangsvollstreckungszuständigkeit, rechtliche Grenzen und Gegenmaßnahmen” (on:  New York Court of Appeals, Opinion v. 4.6.2009) – the English abstract reads as follows:

A New York Court recently ruled that courts in New York have international competence to order the cross-border attachment of rights and securities held by a foreign party with a foreign bank abroad as long as the foreign bank carries out business in the state of New York. This decision potentially exposes foreign banks operating in New York state to attachment disputes. The article describes the impact of the decision and compares it with the legal situation in Germany and other EU countries. The authors come to the conclusion that under German law, EU law as well as under the Lugano Convention a court may not order the attachment of claims located in other countries. In order to limit the risk for banks from being caught in the middle, the authors suggest contractual arrangements that would enable banks to “vouch in” customers into disputes before U.S. courts to ensure that banks are not liable if they comply with U.S. rulings. On the other hand customers could initiate legal steps in their home jurisdiction to prevent a bank from transferring assets/securities abroad; such an injunction would also be recognized by U.S. courts.

• Bartosz Sujecki: “Zur Anerkennung und Vollstreckung von deutschen Kostenfestsetzungsbeschlüssen für einstweilige Verfügungen in den Niederlanden” – the English abstract reads as follows:

The Dutch Supreme Court (Hoge Raad) had to give an answer to the question whether a German decision on the amount of cost (Kostenfestsetzungsbeschluss) related to an interim injunction (einstweilige Verfügung) can be recognized and enforced in the Netherlands. Since the German interim injunction was given in an ex parte procedure and the cost decision was not contested by the defendant, the question arose whether such an uncontested decision can be qualified as a “decision” according to article 32 of the Brussels I Regulation and can be enforced in the Netherlands. This paper discusses and analyzes the decision of the Dutch Supreme Court.

• Gerhard Hohloch: “Feststellungsentscheidungen im Eltern-Kind-Verhältnis –  Zur Anwendbarkeit von MSA, KSÜ und EuEheVO” – the English abstract reads as follows:

The article discusses the Austrian Supreme Court’s order issued on May 8th 2008, concerning the applicability of the 1961 Hague Convention “[…] on the protection of minors” on declaratory actions in statutory custody cases. It refers to the international jurisdiction rules (including “Regulation Brussels IIa”) as well as to the conflict of law rules. As the significance of the Court’s assessment extends beyond the Austrian-German border, the main emphasis is put on how the problems of the case at issue are to be treated in Germany, and furthermore on the impact the 1996 Hague Convention “[…] on the protection of Children” – which is expected to come into force soon – will have on the legal situation in Germany and in Austria.

• Oliver L. Knöfel:  “Nordische Zeugnispflicht – Grenzüberschreitende Zivilrechtshilfe à la scandinave” – the English abstract reads as follows:

The article gives an overview of the mechanisms of judicial assistance in the taking of evidence abroad in civil matters as maintained by the five Nordic Countries (Denmark, Finland, Iceland, Norway, Sweden). In Central and Western Europe, it is little-known that the Nordic Countries have, since the 1970s, erected an autochthonous system of judicial assistance differing quite significantly from the long-standing habits of taking evidence abroad as established by the Hague Conference or recently by the European Union. According to specific reciprocal legislation, Nordic residents are obliged to appear before the courts of any Nordic country, and to give evidence. Thus, there is hardly any need to have a foreign Nordic witness examined by her home court according to a letter rogatory, or to take evidence directly on foreign soil. The article aims at exploring this extraordinary mode of international judicial co-operation with special reference to Swedish procedural law. It is shown that the Nordic mechanism is a product of a very high level of convergence in the field of civil procedure, and that this is due to a common core of Nordic legal cultures.

• Reinhard Giesen on a decision of the Norwegian Supreme Court on the applicable law with regard to defamation: “Das Recht auf freie Meinungsäußerung und der Schutz der persönlichen Ehre im Kontext unterschiedlicher Kulturen” (on: Norges Høyesterett, 2.12.2009 – HR-2009-2266-A)
• Kurt Siehr on the Austrian Supreme Court’s decision of 18 September 2009 dealing with the question of the applicability of Brussels II bis with regard to the return of abducted children – in particular in cases where the child is over 16 years old : “Zum persönlichen Anwendungsbereich des Haager Kindesentführungsübereinkommens von 1980 und der EuEheVO “Kind“ oder “Nicht-Kind“ – das ist hier die Frage!” (on: Austrian Supreme Court, 18.9.2009 – 6 Ob 181/09z)
• Erik Jayme on the inaugural lecture held by Professor Martin Gebauer in Tübingen on 16 July 2010

The United Kingdom Supreme Court delivered its judgment in Dallah on November 3rd, 2010.

Readers will recall that the case was concerned with an arbitral award made by an ICC tribunal in Paris. Dallah was seeking enforcement in England. The Supreme court confirmed that the award would not be declared enforceable for lack of jurisdiction of the tribunal over the defendant, the Government of Pakistan (for more details see our previous post here). The case raised a variety of issues of English international commercial arbitration law that I will leave to my learned English coeditors. But it also raised a most interesting issue of conflict of laws involving French private international law.

The issue was which law governed the validity/existence of an arbitration agreement. English law and the New York Convention provide that, in the absence of a choice by the parties, the validity of an arbitral agreement is governed by “…the law of the country where the award was made.” In this case, that was French law. And the Supreme Court applied French law. 

The problem with this view is that, if one were to ask a French court whether it would apply French law in such case, it would most certainly say no. Since the Dalico case in 1993, the French Supreme Court for private and criminal matters (Cour de cassation) has ruled that international arbitration agreements are not governed by any national law. This might look like a remarquable statement. It has shocked many French lawyers. It seems to have equally shocked quite a few Law Lords (more on this later). But however shocking it might be, it is a clear statement. According to the French Cour de cassation, French law does not govern the validity of arbitration agreements when the seat of the arbitration is in France. And one would think that the Cour de cassation knows what it is talking about when it comes to French law.

Which law governs then? Well, the two French law experts in this case had offered a reasonable interpretation. Their Joint Memorandum stated:

“Under French law, the existence, validity and effectiveness of an arbitration agreement in an international arbitration need not be assessed on the basis of national law, be it the law applicable to the main contract or any other law and can be determined according to rules of transnational law. To this extent, it is open to an international arbitral tribunal the seat of which is in Paris to find that the arbitration agreement is governed by transnational law”.

After citing Dalico, Lord Mance also started to explain:

15. This language suggests that arbitration agreements derive their existence, validity and effect from supra-national law, without it being necessary to refer to any national law.

Indeed.

Renvoi or not renvoi?

There was therefore an interesting issue before the English Supreme court. Its choice of law rule designated French law, but the French choice of law rule did not designate French susbtantive law. The question of renvoi had thus to be asked: would the English court ignore that French law did not want to be applied, or would it take it into consideration?    

One possible answer could have been that, in the English conflict of laws, the scope of renvoi is limited to family law, and that, in all other fields, English courts do not care about foreign choice of law rules. Alternatively, the English Court could have answered that the New York Convention excludes renvoi. Lord Collins did suggest so. He cited one author to this effect. It is disappointing that he did not mention all the others, in particular the numerous Swiss scholars who have argued to the contrary.

But this is not the main answer that Lord Collins gave. The distinguished jugde ruled that there could be no renvoi, because the applicable French choice of law rule designated French law. He held:

124 … it does not follow that for an English court to test the jurisdiction of a Paris tribunal in an international commercial arbitration by reference to the transnational rule which a French court would apply is a case of renvoi. Renvoi is concerned with what happens when the English court refers an issue to a foreign system of law (here French law) and where under that country’s conflict of laws rules the issue is referred to another country’s law. That is not the case here. What French law does is to draw a distinction between domestic arbitrations in France, and international arbitrations in France. It applies certain rules to the former, and what it describes as transnational law or rules to the latter.

So, in a nutshell, although the Cour de cassation rules that transnational law applies, that is not the content of French law. French law provides for the application of rules specifically designed for international arbitration, and these rules are French.

Lord Mance would certainly not have disagreed with this. He ruled:

15. … the true analysis is that French law recognizes transnational principles as potentially applicable (…), such principles being part of French law.

Lord Mance, however, might not have been absolutly sure about this. He thus found useful to state that this had to be a correct view, since both barristers appearing before the Court also agreed. Just as 60 million Frenchmen can’t be wrong, how could three English lawyers get it wrong on French law (even after two senior French lawyers had concluded differently)?

Lord Collins and Lord Mance’s London Lectures 

Are Lord Collins and Lord Mance right when they say that what French courts mean, or are doing, is to lay down French rules of international arbitration? Maybe. Quite a few French scholars have written exactly this. It might be, as Lord Collins put it, that French courts are wrong, and that what they do is is only to “describe” that transnational law applies. Yet, none of these scholars is authoritative when it comes to laying down rules of French law. Neither are Lord Collins or Lord Mance. Only French courts are. What they “describe” is French law.

The Lords sitting in the English Supreme Court were acting in a judicial capacity. They were faced with a question of foreign law. Their job was therefore to assess its content, and, for that purpose, they were to look at French authorities. Instead, the English Supreme Court explained how French law ought to be understood despite clear judgments of France’s highest court ruling otherwise. It made an interesting academic point. But one would have thought that foreign law is a fact that ought to be assessed rather than an idea that can be endlessly discussed.

No doubt, French academics who disagree with this cases will appreciate the judgment in Dallah. It is less clear that the Cour de cassation will appreciate as much to have been lectured by Lord Collins and Lord Mance on the French conflict of laws.

On 3 November 2010, the UK Supreme Court issued its decision in Dallah Real Estate & Tourism Holding Company v The Ministry of Religious Affairs, Pakistan [2010] UKSC 46, with the members of the Court unanimously declining to enforce under Part III of the Arbitration Act 1996 (giving effect to the UK’s obligations under the New York Convention) an award made by an ICC Tribunal sitting in Paris.

The  decision (and earlier stages of the litigation) addressed several important issues, including the scope and manner of the Court’s review under section 103(2)(b) of the 1996 Act (Article V(1)(a) New York Convention), the place of the doctrine of “competence-competence” within the Act and the application of arbitration agreements to non-signatories. The ruling and judgments of the Supreme Court on these issues will almost certainly have a significant and longstanding effect on UK arbitration practice, while influencing debate and practice in other countries.

British Institute of International and Comparative Law (through its Herbert Smith Senior Research Fellow, Dr Eva Lein) has organised a rapid response seminar to discuss the ruling and implications of Dallah case. The seminar will be held at the Institute’s headquarters from 17:15 to 18:45 0n Wednesday 24 November 2010 (followed by a drinks reception). The assembled panel of experts will include:

• David Brynmor Thomas, Herbert Smith LLP
• Dr Stavros Brekoulakis, Queen Mary, University of London
• Ali Malek QC, 3 Verulam Buildings
• Duncan Speller, Wilmer Cutler Pickering Hale and Dorr LLP

Registration and other details of the seminar are available here.

UPDATE: We mistakenly referred to September as the month for this seminar. That has now been corrected – it was, of course, meant to say November. Many thanks to those who emailed pointing out the typo. The time and list of speakers have also been updated.

As we pointed out in a previous post, a very rich collection of essays in honor of Prof. Kurt Siehr on his 75th birthday has been recently published by Eleven International Publishing and Schulthess, under the editorship of Katharina Boele-Woelki, Talia Einhorn, Daniel Girsberger and Symeon Symeonides: Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr. A previous Festschrift was dedicated to Prof. Siehr in 2000: “Private Law in the International Arena – From National Conflict Rules Towards Harmonization and Unification: Liber amicorum Kurt Siehr” (see Google Books).

Here’s the table of contents:

Part I: General Aspects of PIL Law-Making.

• Talia Einhorn, American vs. European Private International Law – The Case for a Model Conflict of Laws Act (MCLA);
• Peter Hay, Comparative and International Law in the United States – Mixed Signals;
• Herbert Kronke, Connecting Factors and Internationality in Conflict of Laws and Transnational Commercial Law;
• Jim Nafziger, Democratic Values in the Choice-of-Law Process;
• Anton K. Schnyder, Keine Berührungsangst des Schweizerischen Bundesgerichts im Umgang mit Eingriffsnormen;
• Frank Vischer, ‘Revolutionary ideas’ and the Swiss Statute on Private International Law;
• Jun Yokoyama, Renvoi in Japanese Private International Law.

Part II: Family Relations and Succession.

• Katharina Boele-Woelki  & Maarit Jantära-Jareborg, Protecting Children Against Detrimental Family Environments under the 1996 Hague Convention and the Brussels II bis Regulation;
• Andrea Bonomi, Choice-of-law Aspects of the Future EC Regulation in Matters of Succession – A First Glance at the Commission’s Proposal;
• Alegria Borras, The Necessary Flexibility in the Application of the New Instruments on Maintenance;
• William Duncan, Hague Conference Future Developments in International Family Law with Special Emphasis on Cross-border Child Protection: A View from The Hague;
• Eric Jayme, Der deutsche Nachlaßrichter und die amerikanische „tracing rule“ im Internationalen Ehegüterrecht – Eine Problemskizze;
• Peter Kindler, From Nationality to Habitual Residence: Some Brief Remarks on the Future EU Regulation on International Successions and Wills;
• Patrick Kinsch, Luxembourg Recognition in the Forum of a Status Acquired Abroad – Private International Law Rules and European Human Rights Law;
• Christian Kohler, Germany Elliptiques variations sur un thème connue: compétence judiciaire, conflits de lois et reconnaissance de décisions en matière alimentaire d’après le règlement (CE) n° 4/2009 du Conseil;
• Rong-chwan Chen, Conflict of Laws of Divorce: Judicial Practice and Legislative Development of Taiwan;
• Heinz-Peter Mansel, The Impact of the European Union’s Prohibition of Discrimination and the Right of Free Movement of Persons on the Private International Law Rules of Member States – With comments on the Sayn-Wittgenstein case before the European Court of Justice;
• Gustaf Moller, On the Hague Convention on the Civil Aspects of International Child Abduction and its application by the Supreme Court of Finland;
• Jan Neels, South Africa External Public Policy, the Incidental Question Properly So-called and the Recognition of Foreign Divorce Orders;
• Teun Struycken, The Netherlands Surrogacy, a New Way to Become a Mother? A New PIL Issue.

Part III: Contractual and Non-Contractual Obligations.

• Michael Bogdan, Some Reflections on Contracts and Torts in Cyberspace in view of Regulations Rome I and Rome II;
• Andreas Furrer, Cross-border Multimodal Transport – Problems and Limits of Finding an Appropriate Legal Regime;
• Ulrich Magnus, UN-Kaufrecht und Verbraucher;
• Peter Mankowski, The Principle of Characteristic Performance Revisited Yet Again;
• Robin Morse, Contracts of Carriage and the Conflict of Laws;
• Monika Pauknerova, Presumptions, Escape Clauses and International Carriage of Goods Contracts;
• Oliver Remien, Tourism, Conflict of Laws and the Rome I Regulation;
• Symeon Symeonides, Party Autonomy in Rome I and II from a Comparative Perspective; [see our dedicated post here]
• Lajos Vekas, Hungary Questions of Contract Law in the New Hungarian Civil Code.

Part IV: International Litigation and Arbitration.

• Paul R. Beaumont & Burcu Yüksel, The Validity of Choice of Court Agreements under the Brussels I Regulation and the Hague Choice of Court Agreements Convention;
• George Bermann, USA Parallel Litigation: Is Convergence Possible?;
• Dagmar Coester-Waltjen, Einige Überlegungen zu Schiedsgerichtsvereinbarungen und ihrer Wirksamkeit;
• Giuditta Cordero-Moss, Legal Capacity, Arbitration and Private International Law;
• Harry Duintjer Tebbens, New Impulses for the Ascertainment of Foreign Law in Civil Proceedings: A question of (inter)networking?;
• Marc Fallon & Dimitrios-Panagiotis Tzakas, Res Judicata Effects of Foreign Class Action Rulings in the EU Member States;
• Celia Fassberg-Wasserstein, Israeli Foreign Judgments Law: A Case for Codification?;
• Manlio Frigo, The Linguistic Factor in the Circulation of Arbitral Awards and Some of its Pitfalls;
• Helene Gaudemet-Tallon, La clause attributive de juridiction, un moyen d’échapper aux lois de police?;
• Daniel Girsberger, The Effects of Assignment on Arbitration Agreements – Why Conflict-of-Laws Theory is Still Needed;
• Tibor Varady, Observation of Group Affiliation (or: Cohabitation with the Impossible) in International Commercial Arbitration;
• Spyridon Vrellis, The Validity of a Choice of Court Agreement Under the Hague Convention of 2005.

Part V: Cultural Property.

• Johan Erauw, Conflict of Laws with Folgerecht (‘droit de suite’) on the Sale of Works of Art in and out of Europe – after the EC-Directive No. 2001/84;
• John Henry Merryman, The van Meegeren Problem;
• Gerte Reichelt, Versunkene Welten Rechtlicher Schutz des archäologischen Unterwasserkulturerbes;
• Marc-André Renold, The International Scope of Application of the Swiss Rules on the Due Diligence of Dealers in Cultural Property.

– – – – – – – – – – – – – – – – – – – – – – –

Title: Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr, edited by Katharina Boele-Woelki, Talia Einhorn, Daniel Girsberger, Symeon Symeonides; Eleven International Publishing – Schulthess,  The Hague – Zürich, 2010, 918 pages.

ISBN : 978-90-77596-93-7 (Eleven); 978-3-7255-6165-0 (Schulthess).

The Secretariat of the ICC International Court of Arbitration is currently recruiting two deputy counsels, one to deal principally with parties from Eastern Europe, another to deal principally with Europe, Africa and the Middle East.

The closing dates for applications are October 4th for the first position, October 11th for the second.

On September 7th, the European Parliament adopted a Resolution on the Implementenation and the Review of the Brussels I Regulation.

The Resolution addresses many issues. On whether to abolish exequatur, the Parliament:

2. Calls for the requirement for exequatur to be abolished, but considers that this must be balanced by appropriate safeguards designed to protect the rights of the party against whom enforcement is sought; takes the view therefore that provision must be made for an exceptional procedure available in the Member State in which enforcement is sought; considers that this procedure should be available on the application of the party against whom enforcement is sought to the court indicated in the list in Annex III to the Regulation; takes the view that the grounds for an application under this exceptional procedure should be the following: (a) that recognition is manifestly contrary to public policy in the Member State in which recognition is sought; (b) where the judgment was given in default of appearance, that the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; (c) that the judgment is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought, and (d) that the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed; further considers that an application should be able to be made to a judge even before any steps are taken by way of enforcement and that if that judge rules that the application is based on serious grounds, he or she should refer the matter to the court indicated in the list in Annex III for examination on the basis of the grounds set out above; advocates the addition of a recital in the preamble to the effect that a national court may penalise a vexatious or unreasonable application, inter alia , in the order for costs;

3. Encourages the Commission to initiate a public debate on the question of public policy in connection with private international law instruments;

4. Considers that there must be a harmonised procedural time-frame for the exceptional procedure referred to in paragraph 2 so as to ensure that it is conducted as expeditiously as possible, and that it must be ensured that the steps which may be taken by way of enforcement until the time-limit for applying for the exceptional procedure has expired or the exceptional procedure has been concluded are not irreversible; is particularly concerned that a foreign judgment should not be enforced if it has not been properly served on the judgment debtor;

5. Argues not only that there must be a requirement for a certificate of authenticity as a procedural aid so as to guarantee recognition, but also that there should be a standard form for that certificate; considers, to this end, that the certificate provided for in Annex V should be refined, while obviating as far as possible any need for translation;

6. Believes that, in order to save costs, the translation of the decision to be enforced could be limited to the final order (operative part and summary grounds), but that a full translation should be required in the event that an application is made for the exceptional procedure;

Full text of the resolution after the break.

Many thanks to Jan von Hein for the tip-off.

European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI))

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

Here is the contents:

•  Peter Mankowski: “Ausgewählte Einzelfragen zur Rom II-VO: Internationales Umwelthaftungsrecht, internationales Kartellrecht, renvoi, Parteiautonomie” – the English abstract reads as follows:

The Rome II Regulation is up for regular review in the near future. Some of its rules deserve closer consideration. This relates in particular to Art. 7 on environmental liability which does not address the paramount question to which extent permissions granted by one Member State influence liability. Insofar a detailed solution by way of recognition is proposed. Another field open for reform is party autonomy under Art. 14. Insofar a number of proposals is submitted generally attempting to bring Art. 14 better in line with other rules of Community law. A systematic restructuring of Art. 6 (3) on competition law is advocated for, too. In contrast, it does not appear to alter anything with regard to the exclusion of renvoi.

• Beate Gsell/Felix Netzer: “Vom grenzüberschreitenden zum potenziell grenzüberschreitenden Sachverhalt – Art. 19 EuUnterhVO als Paradigmenwechsel im Europäischen Zivilverfahrensrecht” – the English abstract reads as follows:

This article sheds light on a new development in European Civil Procedure Law caused by Article 19 Regulation (EC) No 4/2009 of 18 December 2008 on maintenance obligations. It illustrates the differences between Article 19 Regulation (EC) No 4/2009 and related Articles in the Regulations on the European enforcement order for uncontested claims, the European order for payment procedure and the European small claims procedure. The authors demonstrate that Article 19 (EC) No 4/2009 provides the defendant with an autonomous right to apply for a review of a national court’s decision in order to compensate the abolition of the exequatur. Thereby European Civil Procedure Law does not confine its scope to cross-border cases, but, on the grounds of an only potential Europe-wide recognition and enforcement of judgements, intervenes in merely national procedures as well. After discussing the consequences of this principle change in European Civil Procedure Law, the authors doubt the EU’s competence under Article 65 EC or Article 81 TFEU to intervene in national procedure law as regulated in Article 19 (EC) No 4/2009.

• Anne Röthel/Evelyn Woitge: “Das ESÜ-Ausführungsgesetz – effiziente Kooperation im internationalen Erwachsenenschutz” – the English abstract reads as follows:

The coming into force of the Hague Convention on the International Protection of Adults on 1 January 2009 gives reason to examine the German Implementation Act. Its purpose is to include the regulations of the Convention into the internal German system for the protection of adults who are suffering from an impairment or an insufficiency in their personal facilities and therefore are not able to safeguard their own interests. In this article, the authors show the major content of the Implementation Act and discuss how the rules on jurisdiction, applicable law and international recognition and enforcement of protective measures laid down by the Convention fit into existing German law. Also, they highlight the concept of administrative co-operation between member states drawn up by the Convention and put into effect by national law.

• Jörn Griebel: “Einführung in den Deutschen Mustervertrag über die Förderung und den gegenseitigen Schutz von Kapitalanlagen von 2009” – the English abstract reads as follows:

The article comments on the new German Model BIT (bilateral investment treaty) of 2009. After a general description of its content, some changes of the new model in comparison to its predecessors are addressed. Against the background of various models by other states, the question will be raised as to whether some necessary changes were omitted. It is also discussed to what degree different approaches to reforming model BITs are due to political reasons and/or different approaches to treaty drafting.

•  Axel Metzger: “Zum Erfüllungsortgerichtsstand bei Kauf- und Dienstleistungsverträgen gemäß der EuGVVO” – the English abstract reads as follows:

The Car Trim decision of the ECJ puts a spotlight on two important and yet unsettled questions regarding the jurisdiction at the place of performance in sales and service contracts under Art. 5 Nr. 1 lit. b Brussels I Regulation. The author agrees with the Court’s ruling that contracts for the supply of goods to be manufactured or produced should be characterised as sales contracts as long as the purchaser has not supplied the materials. However, the ruling should not be generalised to all types of mixed contracts with service components. The Car Trim decision is also correct in localising the place of performance in case of a sale involving carriage of goods at the place where the purchaser obtained actual power of disposal over the goods at the final destination and not at the place at which the goods are handed over to the first carrier for transmission to the purchaser. Finally, the author examines some of the general questions on autonomous interpretation of Art. 5 Nr. 1 lit. b Brussels I Regulation raised by the Court.

• Ben Steinbrück: “Internationale Zuständigkeit deutscher Gerichte für selbstständige Beweisverfahren in Schiedssachen” – the English abstract reads as follows:

The author comments on a decision of the Higher Regional Court Düsseldorf (7 February 2008 – I-20 W 152/07), which deals with the competence of German courts to preserve evidence for use in foreign arbitration proceedings. The court ruled that parties who agree that their dispute shall be resolved by a foreign arbitral tribunal pursuant to a foreign law derogate the German courts’ international jurisdiction to make (interim) orders in independent proceedings for the taking of evidence (“selbständiges Beweisverfahren”). This decision is not in line with German arbitration law. According to §§ 1025 Abs. 2, 1033 of the German Code of Civil Procedure German courts arbitration agreements conferring jurisdiction on a foreign arbitral tribunal do not affect the German courts’ competence to grant interim relief. It follows that these competences, including the power to preserve evidence, can only be excluded by an explicit agreement to that effect.

• Rolf A. Schütze on the principle of reciprocity in relation to South Africa: “Zur Verbürgung der Gegenseitigkeit im Verhältnis zu Südafrika”
• Peter Kindler: “Zum Kollisionsrecht der Zahlungsverbote in der Gesellschaftsinsolvenz” – the English abstract reads as follows:

Under German law, the managing director of a company is obliged to reimburse the company any payment that has been made to a third party – e.g. a creditor or a shareholder – after the company’s insolvency or over-indebtedness (see, e.g. sec. 64 of the law pertaining to private companies ltd. by shares – GmbHG).1 The Berlin Kammergericht holds that this rule of law also applies to a managing director of a company registered abroad – in this case a British Ltd. – with its centre of main interests in Germany (sec. 3 of the EC Regulation 1346/2000 on cross border insolvency). The author welcomes this decision.

• Fabian Wall: “Enthält Art. 21 Abs. 1 AEUV eine „versteckte“ Kollisionsnorm?” – the English abstract reads as follows:

According to the judgment of the European Court of Justice in the case “Grunkin and Paul”, Article 21 TFEU (ex Article 18 TEC) awards the right to every citizen of the Union that each Member State has to recognise a surname which has been formerly determined and lawfully registrated in a civil register of another Member State. Until now, it is uncertain how the demand of the Court of Justice can be implemented in german practice. This is demonstrated by a case decided recently by the Higher Regional Court of Munich. The legal question is whether Article 21 TFEU should be interpreted as a target which leaves the national authorities the choice of form and methods of implementation or whether Article 21 TFEU should be interpreted as a “hidden” conflict of laws rule which is directly applicable in all Member States.

• Martin Illmer: “La vie après Gasser, Turner et West Tankers – Die Anerkennung drittstaatlicher anti-suit injunctions in Frankreich” – the English abstract reads as follows:

The strong winds from Luxembourg blowing in the face of anti-suit injunctions have extinguished the remedy within the territorial and substantive scope of the Brussels I Regulation. Yet, anti-suit injunctions are not dead even within the European Union. Rather, the focus shifts to the remaining areas of operation. One of these areas concerns anti-suit injunctions issued by non-member state courts against parties initiating proceedings before member state courts. Since the Brussels I Regulation does not cover extra-territorial scenarios, the rationale of the ECJ’s judgments in Gasser, Turner and West Tankers does not apply. Faced with such an anti-suit injunction, it is entirely up to the national law of the respective Member State whether or not to recognize it. While the Belgian and German courts had refrained to do so in the past, the French Cour de Cassation in a recent straight forward judgment has had no difficulty in recognizing and enforcing an anti-suit injunction of a US state court (Georgia).

• Ulrich Spellenberg on Art. 23 Brussels I Regulation: “Der Konsens in Art. 23 EuGVVO – Der kassierte Kater”
• Carl Friedrich Nordmeier: “Portugal: Änderungen im internationalen Zuständigkeitsrecht” – the English abstract reads as follows:

By art. 160 of law n. 52/2008 of 28 of August 2008, Portugal reformed its autonomous rules on jurisdiction, art. 65 and 65-A of the Civil Procedure Code. This contribution gives a short overview of the new rules, focussing especially on the applicability in time.

• Christoph Benicke: “Die Neuregelung des internationalen Adoptionsrechts in Spanien” – the English abstract reads as follows:

With the law 54/2007 of 28 December 2007 the Spanish legislator has enacted a special law on international adoption which encompasses rules on jurisdiction, applicable law and the recognition of foreign adoption decisions in Spain. The new law has the advantage that it summarizes the scattered arrangements into one piece of legislation. It also represents a step forward in that the transformation of a weak foreign adoption in a strong adoption is now possible. But the reform remains half hearted as it restricts the recognition of a weak foreign adoption to cases where none of the parties has the Spanish nationality. In addition, both the conflict of laws rule and the rules on the recognition of foreign adoption decisions are substantively implausible. Most schemes have been taken over from the existing legal situation which had in great part been formed by decisions of the General Directorate of public registries and of the notary system (Dirección General de los Registros y del Notariado) without of systematic guideline. Significantly, there are many technical shortcomings in the legislation. Overall, the new law fails to create a modern, autonomous international adoption law. This is all the more striking since the motives express the aim to reach the standard of the Hague Adoption Convention of 1993.

• Viviane Reding on the European Civil Code and PIL: “Zum Europäischen Zivilgesetzbuch und IPR”
• Rolf Wagner: “Die zivil(verfahrens-)rechtlichen Komponenten des Aktionsplans zum Stockholmer Programm” – the English abstract reads as follows:

The “Stockholm Programme – An open and secure Europe serving and protecting the citizens” covering the period 2010–2014 defines strategic guidelines for legislative and operational planning within the area of freedom, security and justice. Recently the European Commission finalized an action plan. The action plan entails lists of measures with time limits implementing the Stockholm Programme. The article provides an overview on this action plan.

The second issue of 2010’s French Revue de l’arbitrage was released in July.

It contains three articles, one of which addresses an issue of private international law. It is authored by Mathias Audit, who is professor of law at the University Paris Ouest (formerly Paris 10) and discusses the influence of the recent INSERM judgment of one of French supreme courts on the regime of arbitration of disputes arising out of international administrative contracts (Le nouveau régime de l’arbitrage des contrats administratifs internationaux (à la suite de l’arrêt rendu par le Tribunal des conflits dans l’affaire INSERM)). The English abstract reads:

Pursuant to a judgment of 17 May 2010, the “Conflicts Court” (“Tribunal des conflits“) laid down the first foundations for the international arbitral regime to be applied to administrative contracts concluded by French public bodies with foreign contracting parties. The Court has in particular decided to entrust to administrative courts the review of awards issued under certain types of such contracts. Using this judgment as a starting point, this article aims to review more generally this new regime which now applies to arbitration of disputes arising under international administrative contracts.

The XI volume (2009) of the Yearbook of Private International Law (YPIL), published by Sellier – European Law Publishers in association with the Swiss Institute of Comparative Law (ISDC), is out. The Yearbook, edited by Andrea Bonomi and Paul Volken, contains a huge number of articles, national reports, commentaries on court decisions and other materials, up to nearly 650 pages.

Here’s the full list of contributions (available as .pdf on the publisher’s website, where the volume can be purchased, also in electronic format):

Doctrine

• Erik Jayme, Party Autonomy in International Family and Succession Law: New Tendencies;
• Ralf Michaels, After the Revolution – Decline and Return of U.S. Conflict of Laws;
• Diego P. Fernández Arroyo, Private International Law and Comparative Law: A Relationship Challenged by International and Supranational Law;
• Koji Takahashi, Damages for Breach of a Choice-of-Court Agreement: Remaining Issues;
• Eva Lein, A Further Step Towards a European Code of Private International Law: The Commission Proposal for a Regulation on Succession;
• Giulia Rossolillo, Personal Identity at a Crossroads between Private International Law, International Protection of Human Rights and EU Law;
• Urs Peter Gruber / Ivo Bach, The Application of Foreign Law: A Progress Report on a New European Project;
• Juan José Alvarez Rubio, Contracts for the International Carriage of Goods: Jurisdiction and Arbitration under the New UNCITRAL Convention 2008.

Private International Law in China – Selected Topics

• Yongping Xiao / Weidi Long, Contractual Party Autonomy in Chinese Private International Law;
• Qisheng He, Recent Developments with Regards to Choice of Law in Tort in China;
• Renshan Liu, Recent Judicial Cooperation in Civil and Commercial Matters between Mainland China and Taiwan, the Hong Kong S.A.R. and the Macao S.A.R.;
• Weidong Zhu, Law Applicable to Arbitration Agreements in China;
• Yongping Xiao, Foreign Precedents in Chinese Courts;
• Guoqiang Luo (Steel Rometius), Crime of Law-Bending Arbitration in Chinese Criminal Law and Its Effects on International Commercial Arbitration;
• Fang Xiao, Law Applicable to Arbitration Clauses in China: Comments on the Chinese People’s Supreme Court’s Decision in the Hengji Company Case.

National Reports

• Didier Opertti Badán / Cecilia Fresnedo de Aguirre, The Latest Trends in Latin American Private International Law: the Uruguayan 2009 General Law on Private International Law;
• Jeffrey Talpis / Gerald Goldstein, The Influence of Swiss Law on Quebec’s 1994 Codification of Private International Law;
• Yasuhiro Okuda, Initial Ownership of Copyright in a Cinematographic Work under Japanese Private International Law;
• Elisabeth Meurling, Less Surprises for Spouses Moving Within the Nordic Countries? Amendments to the 1931 Nordic Convention on Marriage;
• Andreas Fötschl, The Common Optional Matrimonial Property Regime of Germany and France – Epoch-Making in the Unification of Law.

News from UNCITRAL

• Jenny Clift, International Insolvency Law: the UNCITRAL Experience with Harmonisation and Modernisation Techniques.

Court Decisions

• Zeno Crespi Reghizzi, ‘Mutual Trust’ and ‘Arbitration Exception’ in the European Judicial Area: The West Tankers Judgment of the ECJ;
• Mary-Rose McGuire, Jurisdiction in Cases Related to a Licence Contract Under Art. 5(1) Brussels Regulation: Case-Note on Judgment ECJ Case C-533/07 – Falco Privatstiftung and Thomas Rabitsch v. Gisela Weller-Lindhorst;
• Antonio Leandro, Effet Utile of the Regulation No. 1346 and Vis Attractiva Concursus. Some Remarks on the Deko Marty Judgment;
• Ben Steinbrück, Jurisdiction to Set Aside Foreign Arbitral Awards in India: Some Remarks on an Erroneous Rule of Law;
• Gilberto Boutin, Forum non conveniens and Lis alibi pendens in International Litigation in Panama.

Forum

• Fabrizio Marongiu Buonaiuti, Lis Alibi Pendens and Related Actions in Civil and Commercial Matters Within the European Judicial Area;
• Caroline Kleiner, Money in Private International Law: What Are the Problems? What Are the Solutions?;
• Benedetta Ubertazzi, Intellectual Property and State Immunity from Jurisdiction in the New York Convention of 2004.

See also our previous posts on the 2006, 2007 and 2008 volumes of the YPIL.

(Many thanks to Gian Paolo Romano, Production Editor of the YPIL)

Applications are currently invited for the L. Yves Fortier Chair in International Arbitration and International Commercial Law tenable in the Faculty of Law, McGill University

The L. Yves Fortier Chair in International Arbitration and International Commercial Law, endowed in 2009, has been created through the generous support of Rio Tinto Alcan Inc., in order to bring a leading scholar and teacher in the field of international arbitration and commercial law to the Faculty of Law at McGill University. The Chair is named in honour of L. Yves Fortier, BCL’58, formerly Canada’s Ambassador, Permanent Representative, Chief Delegate to the General Assembly of the United Nations and former Chairman of the Board of Alcan Inc.

The Faculty seeks applications from scholars of international reputation in the field of international commercial law and arbitration. The purpose of the Chair is to reinforce a Canadian locus for the study and research in these fields. Through his or her engagement in teaching and research, the chair holder will advance the understanding of theoretical and practical dimensions of international commercial law including trade and investment, formal and informal regulatory models, corporate governance and responsibility as well as dispute resolution. The chair holder will teach and supervise undergraduate students and graduate students at the master and doctoral levels in the Faculty of Law. The chair holder will endeavour to establish, where appropriate, relationships with other scholars, civil servants, international organizations and experts in non-governmental organizations.

Given the bilingual environment of McGill’s Faculty of Law, the chair holder will be expected to evaluate written and oral work presented by students in both English and French.

The position is tenured and the Chair is fully endowed. In addition to a proven record as a teacher and a scholar, the successful candidate would ideally have experience interacting with international organizations and national governments. The salary and the academic rank will reflect the successful candidate’s qualifications and experience. The term for the chair is seven years and is renewable. The appointment would commence January or July 1, 2011.

The Faculty of Law at McGill University was established in 1848. Its undergraduate program represents an international benchmark for contemporary legal education, and leads to the joint award of the Bachelor of Civil Law (B.C.L.) and Bachelor of Laws (LL.B.) degrees. The graduate program comprises both a non-thesis master’s degree and substantial research degrees at the master and doctoral levels. Through its research programs and pedagogical initiatives it reflects a central commitment to the study of legal traditions, comparative law and the internationalization of law. In conjunction with this overarching mission for the study of law at McGill University, four areas of academic priority have been identified by the Faculty: Transsystemic Legal Education; Trade, Mobility and Enterprise; Public Policy and Private Resources; and Human Rights and Legal Pluralism.

The L. Yves Fortier Chair in International Arbitration and International Commercial Law will be invited to stimulate research and teaching at the intersection of these four areas, and, in so doing, to contribute to the University’s national and international profile as well as to the Faculty of Law’s expertise in comparative law.

How to apply

Applications and nominations, accompanied by a complete curriculum vitae, are now invited and will be considered as of October 15, 2010. Applications should be addressed to Professor Geneviève Saumier, Chair, Staff Appointments Committee, Faculty of Law, McGill University. Applications should be sent by electronic mail to Linda.coughlin@mcgill.ca