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Just released: EFFORTS Report on EU Policy Guidelines
A new Report on EU Policy Guidelines was just posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.
The Report was authored by Marco Buzzoni, Cristina M. Mariottini, Michele Casi, and Carlos Santaló Goris.
Building upon the outcomes of the national and international exchange seminars and the Project’s analytical reports, this Report formulates policy guidelines addressed to EU policymakers and puts forth suggestions to improve the current legal framework provided under the EFFORTS Regulations (namely: the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order) with regard to the enforcement of claims.
This Report was among the outputs and findings discussed at the Project’s Final Conference, hosted by the University of Milan on 30 September 2022, which provided an international forum where academics, policymakers, and practitioners discussed the Project’s key findings and exchanged their views on the national implementation of – and the path forward for – the EFFORTS Regulations. The content of the Final Conference will enrich the Final Study, which is forthcoming on the Project’s website.
Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
Now or Then? The Temporal Aspects of Choice-of-Law Clauses
Several years ago, I published a paper that examined how U.S. courts interpret choice-of-law clauses. That paper contains a detailed discussion of the most common interpretive issues—whether the clause selects the tort laws of the chosen jurisdiction in addition to its contract laws, for example—that arise in litigation. There was, however, one important omission. The paper did not consider the question of whether the word “laws” in a choice-of-law clause should be interpreted to select the laws of the chosen jurisdiction (1) at the time the contract was signed, or (2) at the time of litigation.
In declining to address this issue, the paper was in good company. Neither the Restatement (Second) of Conflict of Laws (§ 2) nor the draft Restatement (Third) of Conflict of Laws (§ 1.02) discuss the relationship between choice-of-law and time. Nevertheless, the omission bothered me.
In the spring of 2021, I saw that Jeff Rensberger at the South Texas College of Law had posted a paper to SSRN entitled Choice of Law and Time. After downloading and reading the paper, I discovered that it contained no discussion of choice-of-law clauses. It was devoted solely to the question of how courts should address the issue of temporality in cases where the parties had declined to select a law in advance. After reading the paper, I wrote to Jeff to propose that we collaborate on a second paper that specifically addressed the temporal question in the context of choice-of-law clauses. When we spoke on the phone to discuss the project, however, we did not agree on the answer. Jeff argued for the laws at the time of signing. I argued for the laws at the time of litigation.
In early 2022, Jeff sent me a draft of his new paper, Choice of Law and Time Part II: Choice of Law Clauses and Changing Law, which makes the case for interpreting choice-of-law clauses to select the law at the time of signing. In response, I drafted an essay arguing that they should be interpreted to select the law at the time of litigation. A draft of my essay, The Canon of Evolving Law, is now available for download on SSRN.
If you happen to be one of the small number of people in the world interested in this fascinating (though obscure) interpretive issue, I would encourage you to download both papers and decide for yourself who has the better of the argument.
[This post is cross-posted at Transnational Litigation Blog.]
US District Court dismisses the case filed by Mexico against the US weapons industry regarding non-contractual obligations
Written by Mayela Celis
On 30 September 2022, a US District Court in Boston (Massachusetts, USA) dismissed the case filed by Mexico against the US weapons manufacturers regarding non-contractual obligations (among them, negligence and unjust enrichment). According to Reuters, the reason given by the judge to dismiss the case is that “federal law [Protection of Lawful Commerce in Arms Act] ‘unequivocally’ bars lawsuits seeking to hold gun manufacturers responsible when people use guns for their intended purpose” and that none of the exceptions contained therein applied.
One statement worthy of note as stated in multiple news media is: “While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law.”
The full case citation is Estados Unidos Mexicanos (plaintiff) vs. SMITH & WESSON BRANDS, INC.; BARRETT FIREARMS MANUFACTURING, INC.; BERETTA U.S.A. CORP.; BERETTA HOLDING S.P.A.; CENTURY INTERNATIONAL ARMS, INC.; COLT’S MANUFACTURING COMPANY LLC; GLOCK, INC.; GLOCK GES.M.B.H.; STURM, RUGER & CO., INC.; WITMER PUBLIC SAFETY GROUP, INC. D/B/A INTERSTATE ARMS (defendants), Case 1:21-cv-11269, filed in 2021.
In a nutshell, the allegations made by Mexico are the following (as stated in the complaint):
- Defendants have legal duties to distribute their guns safely and avoid arming criminals in Mexico;
- Defendants are fully on notice that their conduct causes unlawful trafficking to Mexico;
- Defendants actively assist and facilitate trafficking of their guns to drug cartels in Mexico:
- Defendants actively assist and facilitate the unlawful tracking because it maximizes their sales and profits;
- The Government has taken reasonable measures to try to protect itself from defendants’ unlawful conduct;
- Defendants cause massive injury to the government.
Claims for relief are (as stated in the complaint):
Negligence, public nuisance, defective condition – unreasonably dangerous, negligence per se, gross negligence, unjust enrichment and restitution, violation of CUTPA [Connecticut Unfair Trade Practices Act], Violation of Mass. G.L. c. 93A [Massachusetts Consumer Protection Act], punitive damages.
In addition to the argument given by the judge, I believe that it would be very hard to establish personal jurisdiction over the defendants. Think for example of the minimum contacts and the reasonableness test, in particular what are the contacts of the defendants with the state of Massachusetts (but see for example: Smith & Wesson is indeed based in Massachusetts until 2023), the existence of justified expectations that may be protected or hurt, and the forum State’s [the United States of America} interest in adjudicating the dispute.
Moreover, and aside from jurisdictional issues, given that the actual damage occurred overseas, an important issue would be to prove the causation link between the conduct of the defendants and the damage. This will prove particularly difficult considering all the intermediaries that exist in the weapons’ trade (legal and illegal, second-hand sales, pawn shops, etc.).
Nevertheless, this is a very interesting initiative and perhaps it is a battle worth fighting for (if only to raise public awareness). One thing is for sure: the Mexican Government has shown its increasing concern about the illicit traffic of firearms in its territory and its commitment to end it.
The Mexican Federal Government will appeal the judgment. The official statement is available here.
We will post any new updates on this blog. Stay tuned!
News
ICC Institute of World Business Law Prize 2025: Open for Submissions until 7 April 2025
Every two years, the ICC Institute of World Business Law awards a prize worth € 10,000 to the best doctoral dissertation or long essay on on international commercial law (including arbitration) written by an author under the age of 40 in English or French.
Submissions can be made until 7 April 2025.
More information can be found in the flyer and in the prize rules.
Call for papers: Australasian Association of Private International Law inaugural conference, Brisbane, Australia, 16-17 April 2025
The inaugural conference of the Australasian Association of Private International Law will be held from Wednesday 16 to Thursday 17 April at the Ship Inn conference centre, Southbank, Brisbane, Queensland, Australia, sponsored by Griffith Law School.
We are pleased to invite the submission of paper proposals for the conference, on any aspect of private international law, broadly understood. This includes issues of jurisdiction, choice of law, the recognition and enforcement of foreign judgments (including how they relate to cross-border issues within a federation), and all areas of private law that raise cross-border and transnational issues.
Paper proposals should be made on this form by Wednesday 29 January 2025. We also welcome panel proposals; please email aapril2025conference@gmail.com if you have a proposal for a panel. Proposed presenters on any panel will be required to submit paper proposals.
We welcome anyone interested in private international law, including from the judiciary, legal practice, government, and the academy, from any jurisdiction. Attendees, including presenters, will be required to pay a registration fee. A conference dinner will be held on the evening of Wednesday 16 April, at an additional cost.
Report on the launch event of the Australasian Association of Private International Law
On Thursday 5 December 2024, a group of private international lawyers gathered in Melbourne and online for the launch of the Australasian Association of Private International Law (AAPrIL).
AAPrIL was founded in 2024 by lawyers and academics in Australia and New Zealand who are engaged in private international law. AAPrIL’s aim is to bring together people committed to furthering understanding of private international law in Australia, New Zealand and the Pacific region.
The launch was held at the offices of Corrs Chambers Westgarth in Melbourne. After networking and drinks, the formalities were opened by Cara North, Corrs Special Counsel and AAPrIL Treasurer, who would be known to many following the blog for her work on the HCCH Judgments Project. Cara introduced Jack Wass, New Zealand barrister and AAPRIL’s New Zealand Vice-President, who is co-author of The Conflict of Laws in New Zealand and who was Master of Ceremonies.
The event featured addresses from two of the most influential lawyers in private international law issues from either side of the Tasman Sea.
The Honourable Dr Andrew Bell, Chief Justice of New South Wales, gave a comprehensive pre-recorded address, speaking to the importance of the discipline and the growing number of judgments dealing with cross-border issues in Australia. His Honour has been deeply engaged in private international law for decades; he his author of Forum Shopping and Venue in Transnational Litigation and a co-author of Nygh’s Conflict of Laws in Australia, and acted as counsel in many of Australia’s most significant private international law cases until his appointment to the New South Wales Supreme Court. Chief Justice Bell is the inaugural Patron of AAPrIL.
The Honourable David Goddard, Judge of the Court of Appeal of New Zealand, then delivered a live online address that also spoke to the importance of the discipline. His Honour advocated for the continued modernisation of domestic laws to harmonise approaches to private international law problems between legal systems, encouraging governments to adopt instruments of the Hague Conference on Private International Law (HCCH). Justice Goddard is perfectly placed to speak to the subject: he was the Chair of the Diplomatic Session of the HCCH that adopted the 2019 HCCH Judgments Convention, Vice-President of the Diplomatic Session that adopted the 2005 Choice of Court Convention, and a member of the drafting committee for that Convention. Read more