It has been our book of the month for a few weeks now, but as yet we have not formally announced the publication of Professor Adrian Briggs‘ latest work, Agreements on Jurisdiction and Choice of Law (Oxford, OUP, 2008). So, here’s the blurb:

In this book, the author analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book will be useful in particular to practising lawyers seeking to draft, interpret or enforce the types of contract discussed, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law.

Written by an academic who is also a practising barrister, this book gives in-depth coverage of how the instruments and principles of private international law can be used for the resolution of cross-border or multi-jurisdictional disputes. It examines the operation and application of the Brussels Regulation, the Rome Convention and the Hague Convention on Exclusive Choice of Court Agreements in such disputes, but also discusses the judgments and decisions of the courts in significant cases such as Turner v Grovit, Union Discount v Zoller, and De Wolf v Cox.

Much of the book is given over to practical evaluation of how agreements on jurisdiction and choice of law should be put together, with guidance on, amongst other things, drafting of the agreements (including some sample clauses), severability of agreements, consent, and the resolution of disputes by arbitration.

The table of contents:

1. Introduction and Scheme
2. Consent in private international law
3. Dispute resolution and severability
4. Clauses, principles, and interpretation
5. Drafting agreements
6. Jurisdiction agreements: primary obligations
7. Jurisdiction agreements: Brussels Regulation
8. Jurisdiction agreements: secondary obligations
9. Foreign Judgments
10. Agreements on choice of law
11. Giving effect to agreements on choice of law
12. Agreements to resolve disputes by arbitration
13. Conclusions

A more detailed table of contents can be found on the OUP website, where you can also download a sample chapter (PDF). The price is £145, and you can buy it from Amazon, or OUP. Needless to say, it is highly recommended.

Conflicts scholars have been busy since my last round-up of published articles in February, so the time seems ripe for another list of potential material to add to your reading pile. The usual caveats apply: the list is limited to articles published in English, and even then is almost certainly not comprehensive. If you know of any articles, reviews or casenotes published in 2008 not included in either this list or the previous one, then let me know.

• M. Danov, ‘Awarding exemplary (or punitive) antitrust damages in EC competition cases with an international element – the Rome II Regulation and the Commission’s White Paper on Damages‘ (2008) 29 European Competition Law Review 430 – 436.

Discusses the importance of choosing the most appropriate EU jurisdiction to bring private proceedings to enforce competition law and to claim punitive or exemplary damages in jurisdictions where those remedies are available. Considers the absence of proposals for procedural harmonisation in the Commission White Paper on Damages actions for breach of the EC antitrust rules. Examines whether Regulation 864/2007 (Rome II) will require national courts which ordinarily do not award exemplary damages for breach of competition law to change their practice when it comes into force.

• C. Joerges, ‘Integration through de-legalisation?‘ (2008) 33 European Law Review 291 – 312. Abstract:

Discusses theories of governance and law with reference to changes in the forms of European governance, including the European committee system, the principle of mutual recognition, and the open method of coordination. Asks whether the rule of law is challenged by the change of governance proclaimed by the Commission’s White Paper on European Governance in 2001. Suggests a shift towards a conflict of laws approach in the conceptualisation of European law and governance.

• A. Scott, ‘Reunion Revised?‘ (2008) Lloyd’s Maritime and Commercial Law Quarterly 113 – 118. Abstract:

Discusses the European Court of Justice ruling in Freeport Plc v Arnoldsson (C-98/06) on the national court’s jurisdiction to hear connected claims against foreign domiciliaries together with the main action against a domiciled defendant under Regulation 44/2001 (Judgments Regulation) art.6(1). Considers whether claims against a parent company and its subsidiary were connected even if the two claims had different legal bases. Examines whether the legal basis of each claim was relevant to jurisdiction under the ruling in Reunion Europeenne SA v Spliethoff’s Bevrachtingskantoor BV (C-51/97). Looks at the possibility of abusive claims brought solely to found jurisdiction for connected claims.

• A. Rushworth, ‘Assertion of ownership by a foreign state over cultural objects removed from its jurisdiction‘ (2008) Lloyd’s Maritime and Commercial Law Quarterly 123 – 129.

Discusses the Queen’s Bench Division judgment in Iran v Barakat Galleries Ltd on preliminary issues in an action to recover antiquities taken without permission from Iran, examining whether the court had jurisdiction to enforce foreign law by returning property to a foreign sovereign.

• A. Briggs, ‘Review: Brussels I Regulation (2007), edited by Ulrich Magnus and Peter Mankowski‘ (2008) Lloyd’s Maritime and Commercial Law Quarterly 244 – 246.
• J. Davies, ‘Breach of intellectual property warranties and jurisdiction‘ (2008) 19 Entertainment Law Review 111 – 113. Abstract:

Comments on the Chancery Division judgment in Crucial Music Corp (Formerly Onemusic Corp) v Klondyke Management AG (Formerly Point Classics AG) on whether to set aside service out of the jurisdiction in a dispute about warranties in a copyright licensing agreement for music. Considers the place of performance and the place where damage was sustained within the meaning of the Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 art.5.

• A. Staudinger, ‘From international conventions to the Treaty of Amsterdam and beyond: what has changed in judicial cooperation in civil matters?‘ (2007) European Legal Forum 257 – 265. Abstract:

Discusses the shift from treaties and directives towards secondary EC law in the fields of European civil procedure law and conflict of law rules. Considers the scope of the allocation of competence under the EC Treaty arts 61(c) and 65, the absence of unified conflict of law rules within the inner market and the decreasing national competence and external competence of the EU Member States. Examines advantages and disadvantages of the shift from treaties and directives towards regulations, including in relation to legal consistency in the inner market, reducing sources of law, review and modernisation of regulations, the extent of conformity to a coherent system, and proceedings for a preliminary ruling.

• P. Hay, ‘The development of the public policy barrier to judgment recognition within the European Community‘ (2007) European Legal Forum 289 – 294. Abstract:

Discusses the extent to which national public policy concerns present an obstacle to the harmonisation of areas of substantive law, focusing on the role of public policy in trans-border litigation, in particular in relation to judgment recognition in the EU. Reviews traditional defences to judgment recognition, the defences in Regulation 44/2001 art.34 relating to violation of procedural due process or national public policy, and English judgments awarding or recognising punitive damages or contingent fees. Comments on calls for the public policy exception to be abandoned.

• S. Calabresi-Scholz, ‘Brussels I Regulation Article 5(2): the concept of “matters relating to maintenance‘ – autonomous interpretation’ (2007) European Legal Forum 294 – 295. Abstract:

Comments on the German Federal Supreme Court ruling in Bundesgerichtshof (XII ZR 146/05) on whether the German courts had jurisdiction to hear a claim by a German domiciled divorced spouse for compensation from her former husband, who had transferred his domicile from Germany to France, for the disadvantages she suffered as a result of the limited real income splitting under German tax law. Considers whether the action was a matter relating to maintenance within the meaning of Regulation 44/2001 art.5(2).

• T. Simons, ‘Lugano Convention Article 21: lis alibi pendens – priority‘ (2007) European Legal Forum 296 – 297. Abstract:

Comments on the Swiss Federal Supreme Court judgment in Bundesgericht (4A 143/2007) on whether an application to stay Swiss proceedings, under the Lugano Convention art.21, on the basis that the defendants had lodged a negative declaratory action in the Italian courts prior to the commencement of the Swiss proceedings, should be refused on the basis that the defendants’ comportment had been fraudulent.

• L. Osona, ‘Brussels I Regulation Article 33(2), Article 1(2)(d): contract for the supply of services – arbitration clause’ (2007) European Legal Forum 297 – 298. Abstract:

Reviews the Dusseldorf Court of Appeal ruling in Oberlandesgericht (Dusseldorf) (I 3 W 13/07) on whether an order of a Spanish court denying jurisdiction over a dispute on the basis that the agreement between the parties contained an arbitration clause in favour of an arbitration court in Barcelona should be recognised by the German courts.

• S. Magniez, ‘Brussels II Regulation Article 2(1)(a), (2) and (6): jurisdiction over matrimonial matters – last habitual residence of the spouses’ European Legal Forum 301 – 302. Abstract:

Comments on a Luxembourg Court of Appeal ruling dated June 6, 2007 on whether the Luxembourg courts had jurisdiction under Regulation 1347/2000 to hear divorce proceedings brought by the ambassador of Luxembourg to Greece where the spouses had been resident in Greece and where the husband had returned to Luxembourg and the wife had moved to Germany. Considers whether the husband had established a habitual residence in Greece.

• C. Wadlow, ‘Bugs, spies and paparazzi: jurisdiction over actions for breach of confidence in private international law’ (2008) 30 European Intellectual Property Review 269 – 279. Abstract:

This, the first of two connected articles, discusses the allocation of jurisdiction for breach of confidence actions, focusing on trade secrets. Reviews cases under common law, the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 and Regulation 44/2001.

• G. Ward, ‘Protection of the right to a fair trial and civil jurisdiction: the institutional legitimacy in permitting delay’ (2008) Juridical Review 15 – 31. Abstract:

Examines the operation of the right for proceedings to be heard within reasonable time, provided by the European Convention on Human Rights 1950 art.6, in the context of civil jurisdiction, with reference to case law on the compatibility of the reasonable time requirement with: (1) the lis pendens system of the Brussels civil jurisdiction regime; and (2) the forum non conveniens doctrine.

• S. Kingston & C. Burrows, ‘Europe and beyond’ (2008) 76 Family Law Journal 5 – 7. Abstract:

This, the second of a two-part article on the approach in different countries towards jurisdiction in family proceedings, considers the application of Regulation 1347/2000 (Brussels II) through case law of the European Court of Justice and domestic courts of Member States. Discusses the jurisdictional rules followed by non-EU countries, giving information on the jurisdiction, domicile, residence and matrimonial property provisions in Australia, Switzerland, Denmark, California, and New York.

• Y. Amin & A. Rook, ‘Capacity to marry and marriages abroad’ (2008) 152 Solicitors Journal 8 – 10. Abstract:

Examines the Court of Appeal ruling in Westminster City Council v IC on whether: (1) the marriage of a British man with severe learning disabilities conducted over the telephone to a woman in Bangladesh, which was valid according to Sharia law was recognised as a valid marriage according to English law, where it was accepted by the parties that the man lacked the capacity to marry in accordance with English law; (2) the court’s inherent jurisdiction was usurped by the Mental Capacity Act 2005; and (3) the court could prevent the man leaving the jurisdiction to travel to Bangladesh.

• W. Shi, ‘Review: Private International Law and the Internet (2007) by Dan Jerker B. Svantesson’ (2008) 13 Communications Law 64 – 65.
• C. Knight, ‘Of coups and compensation claims: Mbasogo reassessed’ (2008) 19 King’s Law Journal 176 – 182. Abstract:

Comments on Adrian Briggs’s analysis of the Court of Appeal decision in Mbasogo v Logo Ltd (No.1), on the justiciability of Equatorial Guinea’s claim for compensation against the participants of an attempted coup, which appeared in the Law Quarterly Review (2007, 123(Apr), 182-186). Evaluates Briggs’s assessment of the Court’s application of the rule that the English courts lack jurisdiction to hear an action for the enforcement of a public law brought by a foreign state. Considers how this rule was applied in the Court of Appeal decision in Iran v Barakat Galleries Ltd where the state party attempted to enforce Iranian law.

• C. Bjerre & S. Rocks, ‘A transactional approach to the Hague Securities Convention’ (2008) 3 Capital Markets Law Journal 109 – 125. Abstract:

Examines the scope and effect of the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the Hague Securities Convention). Reviews the background to the Convention, its core agreement based mechanism, including the substantive issues for which the Convention prescribes applicable law, key definitions, the Convention’s scope, the main ways that parties can draft agreements to achieve the Convention’s effect and the “Qualifying Office” requirement, and the Convention’s impact on agreements which do not fully use the Convention’s core agreement based mechanism, including the fall back rules and pre-Convention agreements.

• B. Ubertazzi, ‘The law applicable in Italy to the capacity of natural persons in relation to trusts’ (2008) 14 Trusts & Trustees 111 – 119. Abstract:

Examines Italian law on the capacity of natural persons in relation to trusts. Reviews the substantive law categories of capacity under Italian private international law and the four rules on the law applicable to capacity related to international trade of natural persons. Discusses Italian law applicable to the capacity of the settlor, trustee, protector and beneficiary and to the capacity to choose the governing law of the trust.

• I. Thoma, ‘Applicable law to indirectly held securities: a non-“trivial pursuit”‘ (2008) 23 Butterworths Journal of International Banking & Financial Law 190 – 192. Abstract:

Discusses conflict of laws issues arising in connection with indirectly held securities. Considers difficulties in the application of the lex cartae sitae rule. Examines the respective approaches to conflict of laws of the EC law of the place of the relevant intermediary (PRIMA), the free choice of applicable law under the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary and the draft UNIDROIT Convention on Intermediated Securities.

• D. Rosettenstein, ‘Choice of law in international child support obligations: Hague or vague, and does it matter? – an American perspective’ (2008) 22 International Journal of Law, Policy and the Family 122 – 134. Abstract:

Discusses, from a US perspective, the choice of law rules under the draft Convention on the International Recovery of Child Support and other Forms of Family Maintenance. Considers the significance and value of these rules, and compares them to the regime applicable in US child support proceedings.

• S. James, ‘Rome I: Shall we Dance?’ (2008) 2 Law & Financial Markets Review 113 – 122. Abstract:

Discusses whether the UK should opt into the Draft Regulation on the law applicable to contractual obligations (Rome I), comparing Rome I with the Convention on the Law Applicable to Contractual Obligations 1980 (Rome Convention), including the provisions on: (1) party autonomy; (2) applicable law in the absence of express choice; (3) overriding laws; (4) insurance contracts; (5) consumer contracts; (6) contracts of carriage; and (7) assignment. Illustrates the operation of the Rome I Regulation with flowcharts, and presents text from the Regulation in boxes. Notes how its applicable law clauses differ from those of Regulation 864/2007 (Rome II Regulation).

• L. Enneking, ‘The common denominator of the Trafigura case, foreign direct liability cases and the Rome II Regulation: an essay on the consequences of private international law for the feasibility of regulating multinational corporations through tort law.’ (2008) 16 European Review of Private Law 283 – 312. Abstract:

Identifies a trend towards claims that parent companies should be liable in their home country for damage caused by their subsidiaries abroad. Cites the claim issued in 2006 in the UK against Trafigura Beheer BV for environmental damage caused in the Ivory Coast as an example of this type of claim. Appraises the adequacy of regulation of international corporate activities and considers whether tort law could fill gaps in the regulatory framework. Examines the background to and provisions of Regulation 864/2007 (Rome II) and the impact it could have on tortious liability in this field.

• A. Mills, ‘Arbitral jurisdiction and the mischievous presumption of identity of foreign law’ (2008) 67 Cambridge Law Journal 25 – 27. Abstract:

Examines the Commercial Court judgment in Tamil Nadu Electricity Board v ST-CMS Electric Co Private Ltd on whether a dispute over the pricing arrangements under an electricity supply contract between two Indian parties, which involved elements to be determined by Indian regulatory authorities, fell outside the scope of an arbitration agreement governed by English law. Considers the extent and validity of the supposed presumption of English law that, if the content of foreign law is not proved satisfactorily, the equivalent English law rule will apply.

• R. Bailey-Harris, ‘Jurisdiction: Brussels II revised’ (2008) 38 Family Law 312 – 314. Abstract:

Reports on the European Court of Justice decision in Sundelind Lopez v Lopez Lizazo on whether the Swedish or French court had jurisdiction in a divorce petition where the respondent was a Swedish national but was habitually resident in France. Comments on Regulation 2201/2003 arts 3, 6 and 7 and whether a court of a member State has exclusive jurisdiction where the respondent is neither habitually resident in, nor a national of, a Member State.

• D. Eames, ‘The new Hague Maintenance Convention’ (2008) 38 Family Law 347 – 350. Abstract:

Discusses the Convention on the International Recovery of Child Support and other Forms of Family Maintenance 2007. Considers: (1) the scope of the Convention and provisions therein in relation to recognition and enforcement of judgments, including the grounds upon which recognition can be refused, and the definition of a maintenance arrangement; (2) the Protocol on applicable law; and (3) the EU draft Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

• M. Matousekova, ‘Private international law answers to the insolvency of cross border groups: comparative analysis of French and English case law’ (2008) International Business Law Journal 141 – 163. Abstract:

Compares the approaches of French and UK courts to the conflict of laws issues arising from the insolvency of cross border groups of companies, particularly whether to adopt different strategies towards each entity in a group. Reviews the relevant provisions of French domestic law, the UK statutory regime before and after 2006, and case law on the policy of each jurisdiction towards application of the conflict of laws rules in Regulation 1346/2000. Considers the extent to which French courts have applied the principle of automatic recognition to the UK’s centralisation of group interests.

• Y. Farah, ‘Allocation of jurisdiction and the internet in EU law’ (2008) 33 European Law Review 257 – 270. Abstract:

Assesses the scope and interpretation of Regulation 44/2001 Art.15(1)(c) in its application to electronic consumer contracts. Outlines policy considerations and whether they are achieved by Regulation 44/2001. Questions whether traditional rules determining jurisdiction are adequate or whether internet-specific rules are required. Discusses the concept of a consumer contract, the jurisdictional risks for website operators, the meaning of the words “directs such activities” in Art.15(1)(c), the principle of good faith, and fairness. Compares the EU and the US approach.

• S. Voigt, ‘Are international merchants stupid? Their choice of law sheds doubt on the legal origin theory’ (2008) 5 Journal of Empirical Legal Studies 1 – 20. Abstract:

Evaluates the legal origin hypothesis, the commonly held view in economic literature that common law systems are superior to civil law systems, by examining the choice of law of international trade transactions in cases referred to the International Court of Arbitration. Presents data in tables comparing the expected proportion of contracts choosing the law of a common law jurisdiction with the actual findings. Considers the effects and implications of the legal origin hypothesis.

• I. Fletcher, ‘Alfa Telecom Turkey Ltd v Cukurova Finance International Ltd’ (2008) 21 Insolvency Intelligence 61 – 64. Abstract:

Comments on the British Virgin Islands High Court decision in Alfa Telecom Turkey Ltd v Cukurova Finance International Ltd on the role of expert evidence in the proof of foreign law, and the meaning of the words “to appropriate the collateral” in the Financial Collateral Arrangements (No.2) Regulations 2003 reg.17, implementing Directive 2002/47. Notes the novelty of a Commonwealth court having to interpret an English statutory provision not previously considered by the English courts, and the reference made by the court to the Directive as an aid to interpretation.

• P. Shine, ‘Establishing jurisdiction in commercial disputes: arbitral autonomy and the principle of kompetenz-kompetenz’ (2008) Journal of Business Law 202 – 225. Abstract:

Examines the balance of power between the courts and arbitral tribunals on questions of jurisdiction. Analyses the judgments in Fiona Trust & Holding Corp v Privalov and Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD on the extent to which a challenge to the validity of an agreement containing an arbitration clause affects the validity of the clause itself. Considers the application of the principles set out in those cases in other cases. Notes the approach of other countries which have also adopted the UNCITRAL Model Law for International Commercial Arbitration 1985 as the basis for their arbitration legislation.

The second issue of French Journal du Droit International (also known as Clunet) will be released shortly. It does not contain articles which directly deal with conflict issues. Yet, three of them might be of interest for readers of this blog.

This first is authored by Tunisian professor Lofti Chedly and discusses 14 years of application of the Tunisian law on international arbitration (L’arbitrage international en droit tunisien. 14 ans après le code). The English abstract reads as follows:

On April 26th, 1993 the Code of Arbitration was promulgated in Tunisia, a Code which devotes its third chapter to international arbitration. Fourteen years later, a reflection and an assessment of the contribution of the Code seem obvious and necessary. The adoption of this text, yet strongly inspired by the UNCITRAL type law of 1985 is a significant achievement, following its modernism and its liberalism, does not mean that there are no shortcomings, gaps and even inconsistencies in the current text… In order to allow Tunisia to find a place in international arbitration, certain prospects of the evolution of the code appear essential. An interpretation of these prospects is proposed and focuses in particular on the necessary “ re-conceptualization ” of the internationality of arbitration, which actually conditions all the system of international arbitration which also deserves a reform in order to clarify the access to this dispute resolution method and to support the autonomy of the arbitration procedure…

The second article discusses the responsability of multinationals operating in the energy sector as far as local development is concerned (La responsabilité sociale des multinationales spécialisées dans l’extraction des minerais et hydrocarbures). The author is Cécile Rénouard, a scholar at ESSEC Business school, who published a book on the topic last year. The English abstract reads as follows:

What about the voluntary agreements (Memorandum of Understanding or MoU) signed by extractive industries with local communities close to their production sites ? Are they just a mean to get their social licence to operate or do they express a responsible commitment toward local development ? Ethics is needed as a critical tool to assess the activity of multinationals and not only as an instrument in order to make profit (« Ethics pays »). The MoU signed by Total in Nigeria show a paradigm shift in the way the corporation understands its contribution to the areas where it operates and its implementation of ethical principles. This analysis raises the question of the necessary means to consolidate these voluntary commitments, and perhaps to transform them into a compulsory approach.

The author of the third article is Beat Hess, the General Counsel of Royal Dutch Shell PLC. The piece discusses the legal perspectives of the energy industry (Faire face aux défis juridiques dans l’industrie de l’énergie). The abstract reads:

Given the “ hard truths ” of the global energy outlook – accelerating demand, more challenging exploration and production environments, and increasing pressure to deal with carbon dioxide emissions – energy companies have a central role to play in diversifying their portfolios and enhancing energy efficiency. Beat Hess gives a legal perspective on global energy scenarios and offers a choice of requirements that, in his view, lawyers involved in the sector will need to meet.

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

It contains the following articles/case notes (including the reviewed decisions):

• M. Stürner: “Staatenimmunität und Brüssel I-Verordnung – Die zivilprozessuale Behandlung von Entschädigungsklagen wegen Kriegsverbrechen im Europäischen Justizraum” – The English abstract reads as follows:

The article examines the impact of the law of State immunity on the scope of international jurisdiction under the Brussels I Regulation. Recently the appellate court of Florence, Italy, has granted enforceability to a judgment in which the Greek Supreme Court, the Areios Pagos, had awarded damages to descendants of victims of a massacre committed in 1944 by German SS militia in the village of Dístomo, Greece. Both Greek and Italian courts have based their jurisdiction on an exception to State immunity which was held to exist in cases of grave human rights violations. This standpoint, however, does not reflect the present state of public international law, nor does it take into account the intertemporal dimension of public international law rules. Neither under the Brussels I regime, nor under domestic Italian law a judgment which was rendered in violation of customary State immunity rules can be recognized or enforced. The Brussels Regulation has a limited scope of application. It is designed to respect public international law rules of State immunity, not to trump them. The Regulation therefore does not apply in cases where the defendant enjoys immunity from civil jurisdiction.

• L. de Lima Pinheiro: “Competition between legal systems in the European Union and private international law”
  The author discusses the idea of competition between national legal systems and focuses on two aspects: Competition between legal systems and juridical pluralism and competition between legal systems and freedom of choice. Further, the author outlines the mission of private international law in the existing framework of legal pluralism within the EU by emphasising the importance of private international law in a world characterised by globalisation and legal pluralism which should, in the author’s view, be reflected in an essential place of private international law in the teaching of law.

• P. Scholz:“Die Internationalisierung des deutschen ordre public und ihre Grenzen am Beispiel islamisch geprägten Rechts”
  The author examines the internationalisation of the German public policy clause and argues that human rights guaranteed in European and international law have to be taken into account within the framework of German public policy. Further there is, according to the author, no room for a relativization of the German public policy clause in case of internationally guaranteed human rights. Concerns which are expressed towards a supremacy of German values disregarding foreign legal systems are rebutted by the author in reference to the, for several reasons, only limited application of internationally guaranteed human rights.

• M. Heckel: “Die fiktive Inlandszustellung auf dem Rückzug – Rückwirkungen des europäischen Zustellungsrechts auf das nationale Recht”
  The author examines the impact of the European provisions of service on national law and argues that internal fictional service is, as a consequence of European law, at the retreat in Europe. Nevertheless, internal fictional service is – according to the author – in principle compatible with European law. It was only the statement of claim which had to be served effectively. In case of a fictional service of a statement of claim, a subsequent judgment in default could neither be recognised nor declared enforceable. In view of the right to be heard, internal fictional service was only admissible if the defendant could take notice of the judicial document.

• R. Geimer: “Los Desastres de la Guerra und das Brüssel I-System” (ECJ – 15.02.2007 – C-292/05 – Lechouritou)
  The author reviews the ECJ’s judgment in “Lechouritou” which concerned an action for compensation brought against Germany by Greek successors of victims of war massacres and agrees with the Court that actions brought for compensation in respect of acts perpetrated by armed forces in the course of warfare do not constitute “civil matters” in terms of Brussels I. Thus, the author concludes that consequences of war and occupation can only be dealt with at the level of international law.

• C. Althammer: “Die Auslegung der Europäischen Streitgenossenzuständigkeit durch den EuGH – Quelle nationaler Fehlinterpretation?” (ECJ – 11.10.2007 – C-98/06 – Freeport) – The English abstract reads as follows:

In the case Freeport/Arnoldsson the European Court of Justice has not rewarded the anticipatory obedience that national courts have paid to the judgement Réunion Européenne. Two claims in one action directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict can be regarded as connected (Art. 6 (1), Council Regulation (EC) No 44/2001). In this respect the decision Freeport/Arnoldsson seems correct, although it is criticisable that the ECJ changes his course in such an oblique way. There is no favour done to legal certainty that way. An interpretation of the connection orientated towards the specific case which takes into account the national characteristics is advisable in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. There is no risk of irreconcilable judgments if the proceeding against the anchor defendant is inadmissible. Moreover, the plaintiff must have a conclusive cause of action. Some chance of success seems to be necessary. The possibility of abuse requires an objective handling of the connection. In addition, subjective elements like malice are difficult to prove.

• A. Borrás: “Exclusive” and “Residual” Grounds of Jurisdiction on Divorce in the Brussels II bis Regulation (ECJ – 29.11.2007 – C-68/07 – Sundelind Lopez)
  In the reviewed case, the ECJ has held that Artt. 6 and 7 Brussels II bis have to be interpreted as meaning that where in divorce proceedings, a responsent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction on their national law if the courts of another Member State have jurisdiction under Art. 3 Brussels II bis. The author agrees with the ECJ regarding the final ruling, but is nevertheless critical with regard to the arguments brought forward by the Court and submits that the fact that there was no opinion by an Advocate General had a negative effect on the case. In this respect, the author regrets that this will happen more often in the future since the recent amendments of the Protocol on the Statute of the Court of Justice and of the rules of procedure of the Court provide “for an expedited or accelerated procedure and, for references for a preliminary ruling relating to the area of freedom, security and justice, an urgent procedure”.

• H. Roth: “Der Kostenfestsetzungsbeschluss für eine einstweilige Verfügung als Anwendungsfall des Europäischen Vollstreckungstitels für unbestrittene Forderungen” (OLG Stuttgart – 24.05.2007 – 8 W 184/07)
  The author approvingly reviews a decision of the Court of Appeal Stuttgart dealing with the question whether an order for costs for an interim injunction constitutes a “judgment” in terms of the Regulation creating a European Order for uncontested claims. The case concerned the question whether a certification of the order for costs as a European Enforcement Order had to be refused due to the fact that the underlying decision constituted an interim injunction which had not been given in adversarial proceedings. Thus, the case basically raised the question of the interdepence between the order for costs and the underlying decision. Here the court held that it was sufficient if the defendant was granted the right to be heard subsequently to the service of the decision.

• D. Henrich: “Wirksamkeit einer Auslandsadoption und Rechtsfolgen für die Staatsangehörigkeit” (OVG Hamburg – 19.10.2006 – 3 Bf 275/04)
  In the reviewed decision, the Higher Administrative Court Hamburg had to deal with the question of acquisition of German nationality by adoption and thus with the question which requirements an adoption has to comply with in order to lead to the acquisition of German nationality.

• M. Lamsa: “Allgemeinbegriffe in der Firma einer inländischen Zweigniederlassung einer EU-Auslandsgesellschaft” (LG Aachen – 10.04.2007 – 44 T 8/07)
  The author critically examines a decision of the Regional Court Aachen which has held – in view of the freedom of establishment – that the registration of a subsidiary of an English Limited could not be refused even if the trading name does not meet the requirements of German law.

• H. Sattler: “Staatsgeschenk und Urheberrechte” (BGH – 24.05.2007 – I ZR 42/04) – The English abstract reads as follows:

More than a decade after the fall of the Berlin Wall, the German Bundestag, in the course of a public ceremony in Berlin, donated to the United Nations three sections of the former Wall which had been painted by an Iranian artist without the landowner’s assent. The Bundesgerichtshof dismissed the artist’s claim for damages. The court found that the donation did not infringe the plaintiff’s rights of distribution (§ 17 German Copyright Act), because the parts of the wall were handed over only symbolically in Berlin whereas the actual transfer took place later in New York. The court further held that the painter had no right to be named (§ 13 German Copyright Act) during the Berlin ceremony, since his work was not exhibited at that presentation and had not been signed by the artist. It can be criticized that the court explicitly refused to deal with potential copyright infringements in New York solely due to the fact that the claimant, when stating the facts of his case, had not expressly referred to the applicable US law.

• C. F. Nordmeier discusses two Portuguese decisions dealing with the question of international jurisdiction of Portuguese courts with regard to actions against German sellers directed at the selling price. (“Internationale Zuständigkeit portugiesischer Gerichte für die Kaufpreisklage gegen deutsche Käufer: Die Bedeutung des INCOTERM für die Bestimmung des Lieferortes nach Art. 5 Nr. 1 lit. b EuGVVO”) (Tribunal da Relação de Porto, 26.4.2007, Agravo n° 1617/07-3^a Sec., und Supremo Tribunal de Justiça, 23.10.2007, Agravo 07A3119)

• W. Sieberichs addresses the qualification of the German civil partnership as a marriage which is provided in a note of the Belgium minister of justice (“Qualifikation der deutschen Lebenspartnerschaft als Ehe in Belgien”)

• C. Mindach reports on the development of arbitration in the Kyrgyz Republic (“Zur Entwicklung der Schiedsgerichtsbarkeit in der Kirgisischen Republik”)

• H. Krüger/F. Nomer-Ertan present the new Turkish rules on private international law (“Neues internationales Privatrecht in der Türkei”)

Further, this issue contains the following materials:

• The Turkish Statute No. 5718 of 27 November 2007 on private international law and the international law of civil procedure (“Das türkische Gesetz Nr. 5718 vom 27.11.2007 über das internationale Privat- und Zivilverfahrensrecht”)

• Statute of the Kyrgyz Republic on the arbitral tribunals of the Kyrgyz Republic of 30 July 2002, Nr. 135 (“Gesetz der Kirgisischen Republik über die Schiedsgerichte in der Kirgisischen Republik – Bischkek, 30.7.2002, Nr. 135”)

• Première Commission – Résolution – La substitution et l’équivalence en droit international privé – Institut de Droit International, Session de Santiago 2007 – 27 octobre 2007

As well as the following information:

• E. Jayme on the 73rd Session of the Institute of International Law in Santiago, Chile (“Substitution und Äquivalenz im Internationalen Privatrecht – 73. Tagung des Institut de Droit International in Santiago de Chile”)

• S. Kratzer on the annual conference of the German-Italian Lawyers’ Association (“Das neue italienische Verbrauchergesetzbuch – Kodifikation oder Kompilation und Einführung des Familienvertrages (“patto di famiglia“) im italienischen Unternehmenserbrecht – Jahrestagung der Deutsch-italienischen Juristenvereinigung in Augsburg”)

The 73rd. Conference of the International Law Association, hosted by its Brazilian Branch, will take place in the city of Rio de Janeiro, at the InterContinental Hotel, August 17-21 2008. The central theme of the Conference will be “Law for the Future,” focusing on Natural Resources and Sustainable Development, Rights of the Human Person, Resolution of Private International Disputes, Business and Trade Law, and International Security. Regarding International Private Dispute Resolution, two issues will be addressed:

International Commercial Arbitration

• International Arbitration: Autonomy v. Territorialism
• Public Policy and Mandatory Rules: Influence on the Applicable Law
• The Influence of Cultural Factors on the Choice of the Arbitrator
• Distortions in Contemporary Arbitration: The Problems of Becoming Popular

International Civil Litigation

• Towards World Cooperation Standards: Prospects for the Hague Convention
• The Realities of Regional Judicial Cooperation: Existing Experiences

Registration for the 73rd ILA Biennial Conference is open here.

The University of Heidelberg Law School awards in cooperation with the Max-Planck-Institute for Comparative Public Law and International Law Doctoral Research Positions (starting June 2008, duration: up to 3 years) for studies leading to a Doctorate in Law (Dr. jur.) with the following research objective:

How can the success of international dispute resolution be explained? How must successful dispute resolution be organized? The topic includes private and public international law (arbitration, mediation) as well as international criminal law.

For more information on the research program, the coordinators, the stipends as well as requirements and the application procedure see the website of the Institute for Private International Law, University of Heidelberg which can be found (in English) here.

On March 6th 2008, the Paris Court of Appeal agreed to decline jurisdiction in order to enable the plaintiffs to go back to California and resume the proceedings that they had initiated there. The U.S. Court had (almost) declined jurisdiction on the ground of forum non conveniens, but had fortunately made its decision conditional upon French courts retaining jurisdiction. Under French law, however, French courts did not have jurisdiction over the dispute, but it was hard to see how they could rule so without being petitioned by the defendants, who had no interest to do so. It seemed logical that the plaintiffs would apply to French courts for a declaration of lack of jurisdiction, but declaratory relief is traditionnally unavailable under French civil procedure.

The dispute arose after a Boeing 737-300 crashed in the Red Sea a few minutes after leaving Egypt for Paris. All 135 passengers, most of whom were French (and who included leading arbitration scholar Philippe Fouchard and many members of his family), and the 13 crew members, died. This was on January 4th, 2004.

The airline (Flash airlines) was Egyptian, and so was its insurer. The aircraft was owned by Californian corporation International Lease Finance. The manufacturer of the aircraft was obviously American (Boeing), and so were a variety of its subcontractors: Honeywell International, Parker Hannifin.

Hundreds of plaintiffs decided to bring legal proceedings. A first group of 646 plaintiffs sued Flash Airlines and its insurer before French courts. A second group of 281 plaintiffs, some of whom also belong to the first group, sued the American parties before the U.S. District Court of the Central District of California.

In a judgment of 28 June 2005, the U.S. Court declared itself forum non conveniens. It held, however, that it would only decline jurisdiction if either the defendants were to agree to submit to the jurisdiction of French courts, or if French courts were to retain jurisdiction over the dispute.

The second group of plaintiffs decided to petition French courts to obtain a judgment declining jurisdiction. But this is a kind of declaratory relief that has traditionnally been unavailable under French civil procedure. If you want a court not to retain jurisdiction, the received wisdom goes, you do not petition it in the first place. So the French first instance court held in a judgment of 27 June 2006 that the action was inadmissible.

The plaintiffs appealed to the Paris Court of Appeal which agreed to rule on its jurisdiction.

It first ruled on the admissibility of the action and held that, because of the context of the action, an action seeking declaratory relief was admissible. The traditional rule is that parties may not ask courts to rule on issues if it is not immediately necessary for the resolution of the dispute. However, as the point of the action was to secure the jurisdiction of a foreign court which had made it conditional upon the decision of the French court, knowing whether French courts had jurisdiction was immediately necessary for the resolution of the dispute.

The Court went on to rule that it did not have jurisdiction over the dispute between the second group of plaintiffs and the American defendants. As the defendants were US based, the European law of jurisdiction did not apply and submitting to the jurisdiction of French courts was irrelevant, as it is only a head of jurisdiction under European law. The French common law of jurisdiction provides that French courts have jurisdiction in tort cases when either the domicile of the defendant or the accident took place in France, which was not the case here. Finally, article 14 of the Civil code provides that French courts have jurisdiction over disputes involving French plaintiffs, but this jurisdictional priviledge can be waived by suing abroad and failing to challenge the jurisdiction of the foreign court, which is what had happened (indeed, the French plaintiffs had initiated the American proceedings and argued that U.S. courts had jurisdiction).

Interestingly enough, in an obiter dictum, the French court insists that the American court was the most appropriate court, as some of the witnesses reside “mostly” in the U.S., the evidence related to the plane is to be found in the U.S., and pre-trial discovery is available under U.S. civil procedure. The substance of the dictum might be questionable. But the mere fact that the judgment discusses which court is the most appropriate is truly remarkable, because the jurisdiction of French courts is mandatory. French courts have no discretion in this respect, and whether the foreign court is the forum conveniens is meant to be irrelevant for the purpose of retaining or declining jurisdiction. Well, not completely irrelevant it seems.

It has been a little while since my last trawl through the law journals, and a few articles and casenotes have been published in the intervening period that private international law enthusiasts may wish to add to their reading list:

J.M. Carruthers, “De Facto Cohabitation: the International Private Law Dimension” (2008) 12 Edinburgh Law Review 51 – 76.

P. Beaumont & Z. Tang, “Classification of Delictual Damages – Harding v Wealands and the Rome II Regulation” (2008) 12 Edinburgh Law Review 131 – 136.

G. Ruhl, “Extending Ingmar to Jurisdiction and Arbitration Clauses: The End of Party Autonomy in Contracts with Commercial Agents?” (2007) 6 European Review of Private Law 891 – 903. An abstract:

In the judgment discussed below, the Appeals Court of Munich (OLG München) deals with the question whether jurisdiction and arbitration clauses have to be set aside in the light of the Ingmar decision of the European Court of Justice where they cause a derogation from Articles 17 and 18 of the Commercial Agents Directive. The Court concludes that this question should be answered in the affirmative if it is ‘likely’ that the designated court or arbitral tribunal will neither apply Articles 17 and 18 nor compensate the commercial agent on different grounds. Thus, the Court advocates that Articles 17 and 18 be given extensive protection. This is, however, problematic because such extensive protection imposes serious restrictions on party autonomy, whereas these restrictions are not required by Community law in general or by the principle of effectiveness in particular. Therefore, it is very much open to doubt whether this decision is in the best interests of the Internal Market.

F. Bolton & R. Radia, “Restrictive covenants: foreign jurisdiction clauses” (2008) 87 Employment Law Journal 12 – 14. The abstract:

Reviews the Queen’s Bench Division judgment in Duarte v Black and Decker Corp and the Court of Appeal decision in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd on whether restrictive covenants were enforceable under foreign jurisdiction clauses contained in the long-term incentive plan agreements of UK domiciled employees of multinational companies. Examines the conflict of laws and whether English law applied under the Convention on the Law Applicable to Contractual Obligations 1980 Art.16 and under Regulation 44/2001 Arts.18 and 20.

W. Tetley, “Canadian Maritime Law” L.M.C.L.Q. 2007, 3(Aug) Supp (International Maritime and Commercial Law Yearbook 2007), 13-42. The blurb:

Reviews Canadian case law and legislative developments in shipping law in 2005 and 2006, including cases on: (1) carriage of goods by sea; (2) fishing regulations; (3) lease of port facilities; (4) sale of ships; (5) personal injury; (6) recognition and enforcement of foreign judgments; (7) shipping companies’ insolvency; (8) collision; and (9) marine insurance.

S. James, “Decision Time Approaches – Political agreement on Rome I: will the UK opt back in?” (2008) 23 Butterworths Journal of International Banking & Financial Law 8. The abstract:

Assesses the extent to which European Commission proposed amendments to the Draft Regulation on the law applicable to contractual obligations (Rome I) meet the concerns of the UK financial services industry relating to the original proposal. Notes changes relating to discretion and governing law, assignment and consumer contracts.

A. Onetto, “Enforcement of foreign judgments: a comparative analysis of common law and civil law” (2008) 23 Butterworths Journal of International Banking & Financial Law 36 – 38. The abstract:

Provides an overview of the enforcement of foreign judgments in common law and civil law jurisdictions by reference to a scenario involving the enforcement of an English judgment in the US and Argentina. Reviews the principles and procedures applicable to the recognition and enforcement of foreign judgments in the US and Argentina respectively, including enforcement expenses and legal fees. Includes a table comparing the procedures for the recognition and enforcement of foreign judgments in California, Washington DC and New York.

J. Carp, “I’m an Englishman working in New York” (2008) 152 Solicitors Journal 16 – 17. The abstract:

Reviews case law on issues arising where a national of one country works in another country. Sets out a step by step approach to ascertaining: the law governing the employment contract; the applicability of mandatory labour laws, including cases on unfair dismissal, discrimination, working time, and the transfer of undertakings; which country has jurisdiction; and public policy. Offers practical suggestions for drafting multinational contracts.

J. Murphy – O’Connor, “Anarchic and unfair? Common law enforcement of foreign judgments in Ireland” 2007 2 Bankers’ Law 41 – 44. Abstract:

Discusses the Irish High Court judgment in Re Flightlease (Ireland) Ltd (In Voluntary Liquidation) on whether, in the event that the Swiss courts ordered the return of certain monies paid by a Swiss airline, in liquidation, to an Irish company, also in liquidation, such order would be enforceable in Ireland. Considers whether: (1) the order would be excluded from enforcement under the common law on the basis that it arose from a proceeding in bankruptcy or insolvency; and (2) the order would be recognised on the basis of a “real and substantial connection” test, rather than traditional conflict of laws rules.

V. Van Den Eeckhout, “Promoting human rights within the Union: the role of European private international law” 2008 14 European Law Journal 105 – 127. The abstract:

This article aims to contribute both to the ‘Refgov’ project, which is focused on the ambition to find ways of promoting human rights within the EU, but also, more in general and apart from the project, to an improved understanding of the crucial place conflict of law rules occupy in the building of a common Europe—a highly political question behind apparently technical issues. In the study the author deals with the parameters, points of interest, etc in relation to private international law which should be heeded if European Member States ‘look at’ each other’s laws, and—in the context of the ‘Refgov’ project—if the idea is to exchange ‘best practices’ or harmonise substantive law, or to harmonise private international law, etc further through a type of open method of coordination. The contribution also shows that private international law issues are decisive in respect of every evaluation of the impact of European integration on human rights, both if this integration process takes place through ‘negative’ harmonisation (for example by falling back on the principle of mutual recognition) and through ‘positive’ harmonisation.

R. Swallow & R. Hornshaw, “Jurisdiction clauses in loan agreements: practical considerations for lenders” (2007) 1 Bankers’ Law 18 – 22. Abstract:

Assesses the implications for borrowers and lenders of the Commercial Court judgment in JP Morgan Europe Ltd v Primacom AG on whether proceedings brought in Germany challenging the validity a debt facility agreement were to be treated as the first seised under Regulation 44/2001 Art.27 (Brussels I Regulation), despite the fact that the agreement contained an exclusive jurisdiction clause in favour of the English courts. Advises lenders on the drafting of loan agreements to help mitigate the risk of a jurisdiction clause being frustrated. Considers the steps that might be taken by the lender once a dispute has arisen.

A. Dutton, “Islamic finance and English law” (2007) 1 Bankers’ Law 22 – 25. Abstract:

Reviews cases relating to Islamic finance, including: (1) the Commercial Court decision in Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Gems NV on whether the defendant was liable to make payments under a Sharia compliant contract governed by English law that would contravene Sharia law; (2) the Court of Appeal ruling in Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd (No.1) interpreting a choice of law clause expressed as English law “subject to the principles” of Sharia law; and (3) the Commercial Court judgment in Riyad Bank v Ahli United Bank (UK) Plc on whether the defendant owed a duty of care to a Sharia compliant fund where it had contracted directly with its parent bank.

J. Burke & A. Ostrovskiy, “The intermediated securities system: Brussels I breakdown” (2007) 5 European Legal Forum 197 – 205. Abstract:

Presents a hypothetical case study of a dispute arising from a cross-border securities transaction involving parties from the UK, Sweden and Finland to examine the application of the private international law regime under Regulation 44/2001 Art.5(1) (Brussels I Regulation), the Convention on the Law Applicable to Contractual Obligations 1980 Art.4 (Rome Convention) and the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary. Considers the extent to which commercial developments in the securities industry have outstripped the current conflicts of law rules.

M. Requejo, “Transnational human rights claims against a state in the European Area of Freedom, Justice and Security: a view on ECJ judgment, 15 February 2007 – C292/05 – Lechouritou, and some recent Regulations” (2007) 5 European Legal Forum 206 – 210. Abstract:

Comments on the European Court of Justice ruling in Lechouritou v Germany (C-292/05) on whether a private action for compensation brought against Germany with respect to human rights abuses committed by its armed forces during its occupation of Greece in the Second World War fell within the scope of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 Art.1, thus preventing the defendant from claiming immunity for acts committed during armed conflict. Examines the EC and US jurisprudential context for such private damages claims.

L. Osana, “Brussels I Regulation Article 5(3): German Law Against Restrictions on Competition” (2007) 5 European Legal Forum 211 – 212. Abstract:

Summarises the Hamburg Court of Appeal decision in Oberlandesgericht (Hamburg) (1 Kart-U 5/06) on whether the German courts had jurisdiction under Regulation 44/2001 Art.5(3) (Brussels I Regulation) to order a German tour operator not to incite Spanish hotels to refuse to supply contingents to a competitor German tour operator, behaviour that had been found to be anti-competitive.

C. Tate, “American Forum Non Conveniens in Light of the Hague Convention on Choice of Court Agreements” (2007) 69 University of Pittsburgh Law Review 165 – 187.

E. Costa, “European Union: litigation – applicable law” (2008) 19 International Company and Commercial Law Review 7 – 10. Abstract:

Traces the history of how both the Convention on the Law Applicable to Contractual Obligations 1980 (Rome I) and Regulation 864/2007 (Rome II) became law. Explains how Rome II regulates disputes involving non-contractual obligations and determines the applicable law. Notes areas where Rome II does not apply, and looks at the specific example of how Rome II would regulate a dispute involving product liability, including the habitual residence test.

E.T. Lear, “National Interests, Foreign Injuries, and Federal Forum Non Conveniens” (2007) 41 University of California Davis Law Review 559 – 604 [Full Text Here]. Abstract:

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in the case of an American resident plaintiff injured abroad, an adequate alternative forum seldom exists; each time a federal court dismisses such a claim, the American interest in compensation is irrevocably impaired. With respect to deterrence, an analysis focusing properly on adjudicatory factors demonstrates that excluding foreign injury claims, even those brought by foreign plaintiffs, seriously undermines our national interest in deterring corporate malfeasance.

I am sure that I have missed various articles or case comments published in the last couple of months. If you spot any that are not on this list (or, even better, if you have written one and it is not on this list), please let me know.

Stefan Voigt (Marburg) has written an interesting article titled “Are International Merchants Stupid? Their Choice of Law Sheds Doubt on the Legal Origin Theory” which has been published originally in the Journal of Empirical Legal Studies, March 2008, Vol. 5, Issue 1 and has been posted on SSRN.

The abstract reads as follows:

In economics, there is currently an important discussion on the role of legal origins or legal families. Some economists claim that legal origins play a crucial role even today. Usually, they distinguish between Common Law, French, Scandinavian and German legal origin. When these legal origins are compared, countries belonging to the Common Law tradition regularly come out best (with regard to many different dimensions) and countries belonging to the French legal origin worst.

In international transactions, contracting parties can choose the substantive law according to which they want to structure their transactions. In this paper, this choice is interpreted as revealed preference for a specific legal regime. It is argued that the superiority-of-common-law view can be translated into the hypothesis that sophisticated and utility-maximizing actors would rationally choose a substantive law based on the Common Law tradition such as English or US American law. Although exact statistics are not readily available, the evidence from cases that end up with international arbitration courts (such as the International Court of Arbitration run by the International Chamber of Commerce in Paris) demonstrates that this is not the case. This evidence sheds, hence, some doubt on the superiority-of-the-common-law view.

The article can be downloaded from SSRN as well as from Blackwell Synergy (with subscription).

(Many thanks to Prof. Dr. Jan von Hein (Trier) for the tip-off!)

Conflict of Laws .net will periodically play host to guest editors: distinguished scholars and practitioners in private international law, who have been invited to write a short article on a subject of their choosing. It is hoped that these guest editorials will provide a forum for discussion and debate on some of the key issues currently in the conflicts world. This page will list the editorials as they appear.

Trust and Confidence in the European Community Supreme Court by Professor Andrew Dickinson

Reflections on the Proposed EU Regulation on Succession and Wills by Professor Jonathan Harris

Reshaping Private International Law in a Changing World by Professor Horatia Muir-Watt

Recognition of a Recognition Judgment under Brussels I? by Professor Peter Hay

Should Arbitration and European Procedural Law be Separated or Coordinated? Some remarks on a recurrent debate of European lawmaking by Professor Burkhard Hess

Private International Law and the Downturn by Richard Fentiman