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
Second edition of The Hague Academy of International Law’s Advanced Course in Hong Kong on “Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Judgments Convention”
From 2 to 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law (AAIL) with the support of the Department of Justice of the Government of the Hong Kong SAR. Once again, the Hague Academy of International Law brought distinguished speakers to the “fragrant harbour” to deliver lectures on the “Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”. Just a stone’s throw from the Old Supreme Court Building (now the seat of Hong Kong’s Court of Final Appeal) at the premises of the Hong Kong Club, legal scholars, national judges, government officials and legal practitioners from over 20 jurisdictions as diverse as Laos, the People’s Republic of China, (francophone) Cameroon, The Netherlands, South Africa or the Kingdom of Saudi Arabia came together to discuss their respective experiences and the prospects of the latest instrument in this field, the HCCH 2019 Judgments Convention.
[Now Available] Yearbook of Private International Law Vol. XXV – 2023/2024
The latest volume of the Yearbook of Private International Law has been recently published, marking the 25th anniversary of its significant contribution to outstanding legal scholarship in the field of comparative private international law.
Readers will undoubtedly appreciate the Editors’ Foreword as well as the insightful tributes dedicated to this milestone edition written by Professors Nadjma Yassari (A Quarter-Century of Excellence), Symeon C. Symeonides (A Tribute), and Ivana Kunda (Petar Šarcevic – The Intellectual Behind the Name). These contributions, which reflect on the Yearbook’s impact and achievements over the years, are freely available online, offering a fitting celebration of this remarkable anniversary.
The Yearbook’s latest volume features the following table of contents: Read more
5th German Conference for Young Researchers in Private International Law, 14 and 15 Feb 2025, University of Heildeberg
On 14 and 15 February 2025, the 5th iteration of the German Conference for Young Researchers in Private International Law will take place at the University of Heidelberg. The conference – which is being organized by Felix Berner, Andreas Engel, Aron Johanson, Markus Lieberknecht, Sophia Schwemmer, Ann-Kathrin Voß, Charlotte Wendland, and Anton Zimmermann – is dedicated to the topic of ‘Digital transformation and Private International Law. Local connections in boundless spaces’:
After statute theory, Savignyan PIL and Europeanisation, digitalisation has the potential to initiate a fourth evolutionary stage in the history of conflict of laws, which is characterised by decentralisation and delocalisation. We may therefore be on the threshold of a PIL 4.0. At our conference, we would like to discuss how the conflict-of-laws problems arising from the boundless spaces of digitalisation can be solved in European and autonomous German, Austrian and Swiss private international law. At the same time, we would like to look at the possibilities for legal changes at national, European and international level.
A keynote will be given by Christiane Wendehorst (University of Vienna).
The programme can be found here; registration is possible here.
More information can also be found on the conference website.