Views
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
Private International Law and Sustainable Development in Asia at Wuhan University – Report
By Zixuan Yang, a PhD student at Max Planck Institute for Comparative and International Private Law in Hamburg, Germany.
The Conference on Private International Law and Sustainable Development in Asia was successfully held at Wuhan University School of Law on 23rd November 2024. This international symposium was organized by Wuhan University Academy of International Law and Global Governance, Wuhan University School of Law and China Society of Private International Law. Following a Call for Papers of the Chinese Journal of Transnational Law (CJTL), the symposium provided an ideal platform for participants to critically and constructively engage with the functions, methodologies and techniques of private international law in relation to sustainable development from the Asian perspective. Distinguished legal experts and scholars from Japan, India, Vietnam, Singapore, Hong Kong SAR, Macao SAR, Taiwan, Mainland China, Germany and the Netherlands delivered presentations and participated in discussions on-site and online.
After Professor Zheng Tang opened the conference, vice President of the China Law Society, President of the China Society of International Law and President of the China Society of Private International Law, offered a welcome. This was followed by a joint keynote speech from Professor Ralf Michaels (Max Planck Institute for Comparative and International Private Law, Hamburg), Professor Verónica Ruiz Abou-Nigm (University of Edinburgh), and Hans van Loon (former Secretary-General of the Hague Conference on Private International Law) on Private International Law and SDGs 2030. Together with Zheng Tang, they will serve as special editors of an issue in CJTL that brings the papers together. Read more
Report on the 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL)
On 5–6 December 2024, 18 private international lawyers from Australia, Hong Kong, Japan, New Zealand and Singapore came together at the University of Melbourne for the 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL).
The colloquium was the first since 2018, when it had been held in Japan. The 2024 event was expertly hosted by Professor Richard Garnett and Professor Ying Khai Liew of the University of Melbourne Law School, and held at University House at UniMelb’s Parkville campus. Read more
Out Now: New open Access book on Children in Migration and International Family Law (Springer, 2024) by Stefan Arnold & Bettina Heiderhoff
Stefan Arnold (Institute of International Business Law, Chair for Private Law, Philosophy of Law, and Private International Law, University of Münster, Münster, Germany) and Bettina Heiderhoff (Institute for German and International Family Law, Chair for Private International Law, International Civil Procedure Law and German Private Law, University of Münster, Münster, Germany) have recently published an edited book on Children in Migration and International Family Law (Springer, 2024).
The book is an open access title, so it is freely available to all. In the editors’ words, the book aims “to shed light on the often overlooked legal difficulties at the interface between international family law and migration law” (p. 3) with focus placed “on the principle of the best interests of the child and how this principle can be more effectively applied.” (p.4)
The book’s blurb reads as follows:
This open access book offers readers a better understanding of the legal situation of children and families migrating to the EU. Shedding light on the legal, practical, and political difficulties at the intersection of international family law and migration law, it demonstrates that enhanced coordination between these policy areas is crucial to improving the legal situation of families on the move. It not only raises awareness of these “interface” issues and the need for stakeholders in migration law and international family law to collaborate closely, but also identifies deficits in the statutory framework and suggests possible remedies in the form of interpretation and regulatory measures.
The book is part of the EU co-financed FAMIMOVE project and includes contributions from international experts, who cover topics such as guardianship, early marriage, age assessment, and kafala from a truly European perspective. The authors’ approach involves a rigorous analysis of the relevant statutory framework, case law, and academic literature, with particular attention given to the best interest of the child in all its facets. The book examines how this principle can be more effectively applied and suggests ways to foster a more fruitful understanding of its regulatory potential.
Given its scope and focus, the book will be of interest to researchers, scholars, and practitioners of Private International Law, Family Law, and Migration Law. It makes a valuable contribution to these fields, particularly at their often-overlooked intersections.
The content of the chapters is succinctly summarized in the introductory chapter of the book, authored by the editors (“Children in Migration and International Family Law: An Introduction,” pp. 11–16). This summary is referenced here as a sort of abstract for each chapter. Read more