Conflict of Laws .net

A few short articles on various aspects of private international law in family law have been published this week. They are:

James Copson (Withers LLP), Alain Berger (Berger Recordon & de Saugy, Geneva) and Alexandre Boiche (Cabinet Veronique Chaveau, Paris), "Cross-border Matrimonial Law" Family Law Journal (2006) No.60 October Pages 3-5. The abstract reads:

This, the second in a series of international articles, uses a case study involving an international couple who own properties in England, Switzerland and France and who are divorcing after a long marriage to explain how the choice of jurisdiction can effect the financial award made. Summarises the approach adopted in each jurisdiction to: (1) the division of assets, including the effect of prenuptial agreements; (2) applications for compensation for loss of the ability to share the other parties future income; (3) child support; and (4) taxation of awards. Outlines the position under European law to determining habitual residence and to the effect of competing proceedings.

Suzanne Kingston and Faye Fitzsimmons (Dawsons), "Miller and McFarlane - the international aspects" Family Law Journal  (2006) No.60 October Pages 16-18. The abstract reads:

This, the second of two articles considering the House of Lords judgment in Miller v Miller, discusses the potential for the decision to lead to an increase in forum shopping within the EU in divorce cases involving international couples with substantial assets. Uses a case study involving German nationals to compare the financial consequences of divorce proceedings commenced in England with those resulting from proceedings being issued in Germany. Considers the impact the proposed EU Regulation, known as Rome III, will have on choice of jurisdiction.

Keith Gordon (Atlas Chambers), "Jurisdiction jigsaw" Solicitors Journal (2006) Vol.150 No.41 Pages 1378,1380. The abstract reads:

Explains the importance of the law on domicile for applications made under the Inheritance (Provision for Family and Dependants) Act 1975 and other areas of the law. Considers the distinction between domicile of origin and domicile of choice, providing examples of a revived domicile of origin and the acquisition of a new domicile of choice. Notes the need to prove a permanent and indefinite intention to reside in a domicile of choice.

All of the articles can be found on Lawtel.

 The 13th edition of the German collection of rules on private international law and international procedural law - "Internationales Privat- und Verfahrensrecht" - edited by Erik Jayme and Rainer Hausmann has been published. It contains the German conflict of law rules (EGBGB) as well as bi-and multilateral conventions and European rules on all areas of private international law and international procedural law.

More information can be found on the publisher´s website.

An interesting article discussing Opinion 1/03 where it has been held that "the conclusion of the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (…) falls entirely within the sphere of exclusive competence of the European Community" has been published in the German Law Journal Vol. 7 No. 8: Tristan Baumé: Competence of the Community to Conclude the New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters: Opinion 1/03 of 7 February 2006.

The full article can be viewed here.

On 24 October 2006, the European Commission adopted a Green Paper on "Improving the efficiency of the enforcement of judgements in the European Union: the attachment of bank accounts" (COM(2006) 618 final). The European Commission's newsroom website states:

The problems of cross-border debt recovery is an obstacle to the free circulation of payment orders within the European Union and an impediment for the proper functioning of the Internal Market.

By now, debtors are able to move their monies almost instantaneously, out of accounts known to their creditors into other accounts in the same or another Member State. At the contrary, creditors are not able to block these monies with the same swiftness and when seeking to enforce an order in another Member State they are confronted with legal, procedural and language obstacles which entail additional costs and delays. Above all, under existing Community instruments, it is not possible to obtain a bank attachment of one's debtor’s bank account(s) which can be enforced throughout the European Union. Aware of the difficulties of cross-border debt recovery, the EU Commission has decided to concentrate in a first step the public Consultation on protective measures improving the attachment of bank accounts.

The Commission go on to state the need for consistency in the attachment of bank accounts thus:

Enforcement law has often been termed the “Achilles’ heel” of the European Civil Judicial Area. While a number of Community instruments provide for the jurisdictional competence of the courts and the procedure to have judgments recognised and declared enforceable as well as mechanisms for co-operation of courts in civil procedures, no legislative proposal has yet been made for actual measures of enforcement. To date, execution on a court order after it has been declared enforceable in another Member State remains entirely a matter of national law.

Current fragmentation of national rules on enforcement severely hampers cross-border debt collection. While debtors are today able to move their monies, almost instantaneously, out of accounts known to their creditors into other accounts in the same or another Member State creditors are not able to block these monies with the same swiftness thereby risking that their claims remain unpaid. Under existing Community instruments, it is not possible to obtain a bank attachment which can be enforced throughout the European Union.

A consistency of approach amongst the Member States as regards the attachment of bank accounts would remedy to this situation and might also help to avoid potentially discriminatory effects where remedies in different Member States create disparity in outcomes quite apart from the potential, and probably actual, affects on the functioning of the Internal Market.

In addition, a "Green Paper on how to improve the transparency of the debtor’s assets will follow by the end of 2007." It would appear that the drive towards a unified set of procedural rules, with the European Payment Procedure Order and the European Small Claims Procedure also at full steam ahead, shows no sign of slowing.

Documents (PDF):

• COM (2006) 618: Improving the efficiency of the enforcement of judgements in the European Union: the attachment of bank accounts
• SEC (2006) 1341: Commission staff working document annex to the green paper on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts
• IP/06/1460: Improving the efficiency of the enforceability of cross-boarder debt collection
• MEMO/06/398: Green Paper on improving the efficiency of the enforceability of cross-boarder debt collection

Responses to the Green Paper must be submitted no later than 31 March 2007.

Hat-tip to Andrew Dickinson for the link.

Yoav Oestreicher (Bar Ilan University) has posted an article on the Social Science Research Network (SSRN) entitled, "Recognition and Enforcement of Foreign Intellectual Property Judgments: Analysis and Guidelines for a New International Convention". The abstract reads:

This dissertation attempts to analyze the reasons for the continuing failure of the international community to agree on a single international comprehensive instrument that regulates recognition and enforcement of foreign judgments, especially following the negotiations that took place at the Hague Conference on Private International Law until June 2005, by concentrating on intellectual property as a model. It is concluded that the continuing attempt to base the proposed instruments on a “mixed” or “double” convention model, thus combining the question of recognition and enforcement of the foreign judgment with the substantially complicated question of jurisdiction of the rendering court is unjustified. The inability to agree on the jurisdiction question due to economic, cultural and financial reasons resulted in the continuing inability to regulate this field.

The dissertation proposes a somewhat revolutionary minimalist solution to the problem, which is based on a “simple” convention model that promotes a “presumption of enforceability” rule with very broad exceptions such as public policy, due process, and jurisdiction. The proposed guidelines for a new international convention do not directly address the issue of jurisdiction, but rather indirectly, as an exception to the general rule of enforcement. By creating the convention within the framework of the TRIPs Agreement, it will enjoy some of the elements that are already contained therein. In the future, this model could be broadened in scope to also apply to other fields of law. Success of this proposed convention will bring stability and create confidence and trust among potential member countries, thus serving as the basis for a broader international solution.

The full article can be downloaded from here.

The EU Council has released its decision on the accession of the Community to the Hague Conference on Private International Law (see our earlier note here for its announcement after the JHA meeting). The decision states:

1. The Community shall accede to the Hague Conference on Private International Law (HCCH) by means of the declaration of acceptance of the Statute of the HCCH (Statute), as set out in Annex I to this Decision, as soon as the HCCH has taken the formal decision to admit the Community as a Member.

2. The Community shall also deposit a declaration of competence specifying the matters in respect of which competence has been transferred to it by its Member States, as set out in Annex II to this Decision, and a declaration on certain matters concerning the HCCH, as set out in Annex III to this Decision.

The Declaration of competence of the European Community specifying the matters in respect of which competence has been transferred to it by its Member States is set out in Annex II of the decision; the European Community notably has competence under Title IV of the EC Treaty to adopt measures in the field of judicial cooperation in civil matters having cross-border implications insofar as necessary for the proper functioning of the internal market (Articles 61(c) and 65 EC Treaty). These measures include:

• improving and simplifying the system for cross-border service of judicial and extrajudicial documents; cooperation in the taking of evidence; the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
• promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
• eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

See here for the full decision of the Council, as well as the Annexes (including the Statute of the Hague Conference on Private International Law).

The United States Supreme Court is scheduled to hear argument on Monday, October 31, in a matter which again visits the basic question of when an American punitive damage award is unconstitutionally excessive.  In BMW of North America v. Gore, 517 U.S. 559 (1996), the Supreme Court first created constitutional limitations on punitive damages, requiring courts to weigh the reprehensibility of the defendant’s conduct, the relationship between the harm suffered by the victim and the amount of punitive damages, and the relationship between the size of the punitive damage award and civil or criminal penalties that could be imposed for the defendant’s conduct. Most recently, in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the Court prohibited consideration of wrongful conduct other than the harm to the individual victim in assessing punitive damages, and noted that few awards exceeding a single-digit ratio of punitive to compensatory damages would be constitutional, although there could be exceptions.  Now at issue in Philip Morris USA v. Williams is whether and how the Supreme Court's limitations in Gore and Campbell ought to apply to tortfeasors that engaged in what is deemed “extraordinarily reprehensible” conduct. 

Though not a traditional topic of private international law, this case is of obvious interest to international practitioners and private international law scholars, as American judgments abroad have long met significant opposition to recognition and enforcement abroad due to the incidence and size of punitive damage awards.

Interesting articles regarding the case and upcoming argument can be found here and here. The decision of the Oregon Supreme Court below can be found here. As always, we have provided links to both the Petitioner’s Brief on the Merits as well as Respondent’s Brief.  The published oral argument transcript is linked here.   

The courts of Ontario have taken another step forward in the recognition and enforcement of foreign non-monetary orders.  In Re Grace Canada Inc. (available here) the Superior Court of Justice recognized a Manitoba order which had allowed a law firm to act in a particular matter by finding it was not in a conflict of interest.  Grace Canada Inc. had opposed recognition on the basis that the Manitoba order was non-monetary.  The Superior Court of Justice relied on two earlier recent Court of Appeal for Ontario decisions supporting the recognition of non-monetary orders: Re Cavell Insurance Co. (available here) and Pro-Swing v. ELTA Golf Inc. (available here).  An appeal of the latter decision was heard by the Supreme Court of Canada in December 2005 and a decision is eagerly awaited.

The American Branch's 2006 International Law Weekend 2006 will be held on Thursday-Saturday, October 26-28, 2006, at the Association of the Bar of the City of New York (42 West 44th St, New York, NY). The theme this year is "The Evolving World of International Law."  The panels on private international law focus on the following topics:

Enforcing Foreign Judgments and Awards: Worlds Apart? Friday October 27, 2006, 9:00 am – 10:30 am 

This panel will compare the recognition and enforcement of foreign judgments and international arbitration awards. It will also discuss the proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. In particular, this panel will explore whether the new Hague Convention, if adopted, would bridge the present gap between the enforcement of foreign judgments and international arbitration awards.

• Chair: Julie Bedard, Esq., Skadden, Arps, Slate, Meagher & Flom LLP
• Panelists: Prof. George A. Bermann, Jean Monnet Professor of EU law & Walter Gellhorn Professor of Law, Columbia University School of Law
• John Fellas, Esq., Partner Hughes Hubbard & Reed LLP
• John L. Gardiner, Esq., Partner, Arps, Slate, Meagher & Flom LLP

From Owusu to Parlatino: European Union and Latin American Challenges to Forum Non Conveniens Friday October 27, 2006, 10:45 am – 12:15 pm 

In 2005, the European Court of Justice, in Jackson v. Owusu, ruled forum non conveniens to be incompatible with the United Kingdom’s obligations under the Brussels regulation. A continent apart, the Ecuadorian legislature in 1998 pronounced that, when an Ecuadorian filed an action abroad, the act of filing terminated the jurisdiction of the Ecuadorian courts. This legislation caused the Parlatino movement to urge the adoption of similar legislation throughout the Latin America. What is the future of the FNC in the light of these actions?

• Chair: Professor Michael Gordon Wallace, University of Florida Levin College of Law
• Panelists:Henri Saint Dahl, Esq., Adjunct Secretary General, Inter-American Bar Association
• Prof. Alejandro M. Garro, Columbia University School of Law
• Prof. Loukas Mistelis, Queen Mary, University of London
• Prof. Louise E. Teitz, Roger Williams University   

Recent Developments and Future Trends in Private International Law Friday October 27, 2006, 4:00 pm – 5h30 pm 

Harmonization and codification in the field of private international law has an increasing impact on the work of practitioners and the interests of their clients. This panel will address some of the most important developments and the interest of their clients. This panel will address some of the most important developments and ongoing projects taking place in UNCITRAL, UNIDROIT, the Organization of American States and the Hague Conference of Private International Law, including in such diverse areas as recognition and enforcement of judgments and choice of court agreements, secure finance, electronic commerce, consumer protection, service of process and taking abroad.

• Chair: David P. Stewart, Esq., Office of the Legal Adviser, U.S. Department of State & Co-chair, ABILA Extraterritorial Jurisdiction Committee
• Panelists:David A. Baron, Esq., McDermott Will & Emery LLP
• Prof. Amelia H. Boss, Temple University Beasley School of Law
• Prof. Ronald A.  Brand, University of Pittsburgh School of Law
• John M. Wilson, Esq., Legal Adviser, Department of International Legal Affairs, Organization of American States

All panels are open to students and all members of the ILA and cosponsoring organizations without charge. For others there is a fee payable at the door. 

For more information, please visit the web site of the American Branch of the International Law Association.

For the first time since Piper Aircraft Co. v. Reyno in 1982, the United States Supreme Court will hear a case concerning the scope and applicability of the forum non conveniens doctrine when parallel proceedings are contemplated in a foreign court.  In granting the petition for a writ of certiorari in Sinochem Int'l Co., Ltd. v. Malaysia International Shipping Corp., No. 06-102, the Supreme Court agreed to decide "[w]hether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens?" This question has divided the Unites States Courts of Appeals for nearly a decade, with the D.C. and Second Circuits holding that jurisdiction is not a prerequisite for a forum non conveniens dismissal, and the Ninth, Fifth, Seventh and Third Circuits holding the opposite.  The decision, which should be forthcoming in the Spring of 2007, has potential importance to all non-U.S. companies who are sued in the courts of the United States for matters having little or no connection to the U.S. The Justices selected the Sinochem matter as one of the nine cases that it granted review to on September 26 (out of 1,900 petitions that had been stacked up on the Court's docket over its Summer recess).  The case will be argued before the Justices in January 2007.

The Order granting the Writ of Certiorari is available here; the Petition for Writ of Certiorari is available here; the Brief in Opposition to Certiorari is available here; and the Reply Brief in Support of Certiorari is available here.

Disclaimer: Charles Kotuby is an Associate in the Washington D.C. Office of Jones Day, who represents Petitioner in this matter.

The 4th edition of the renowned German textbook "Internationales Zivilverfahrensrecht" by Haimo Schack has been published. The textbook attends to the foundations of international civil procedure law and the limits of jurisdiction under international law. In particular it deals with the rules concerning the procedure on the merits as well as the rules on the recognition and enforcement of foreign judgments.

The 4th edition includes alterations which arose as a result of the new Brussels II bis Regulation (Regulation 2201/03/EC) and the Regulation on a European Enforcement Order for uncontested claims (Regulation 805/04/EC). Further it encompasses the Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes and the proposal for the estblishment of a European payment order procedure and measures to simplify and speed up small claims litigation.

The 2nd edition of the German commentary on European civil procedure law edited by Thomas Rauscher, Europäisches Zivilprozeßrecht, has been published. The new edition comprises two volumes and includes commentaries on the following regulations and proposals:

• Regulation 44/2001/EC ("Brussels I")
• Regulation 2201/2003/EC ("Brussels II bis")
• Regulation 1348/2000/EC ("Service Regulation")
• Regulation 1206/2001/EC ("Evidence Regulation")
• Regulation 805/2004/EC ("Regulation on a European Enforcement Order")
• Regulation 1346/2000/EC ("Insolvency Regulation")
• the future regulation on the creation of a European Payment Order
• Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure
• Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations

Further information can be found on the publisher´s website.

The new issue of the Journal of Private International Law Volume 2, Number 2 (October 2006), will be published shortly. The contents are (click on the links below to view the abstract):

• EU Law as Private International Law? Reconceptualising the Country-of-Origin Principle as Vested-Rights Theory by Ralf Michaels (Associate Professor, Duke University School of Law)
• The Hague Convention of 30 June 2005 on Choice of Courts Agreements including Appendix Hague Conference on PIL 20th Session by Andrea Schulz (First Secretary, Permanent Bureau of the Hague Conference on Private International Law)
• Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States by Stephen B. Burbank (David Berger Professor for the Administration of Justice, University of Pennsylvania Law School)
• A Major Reform of Japanese Private International Law by Koji Takahashi (Associate Professor, Doshisha University Law School, Kyoto)
• The Evolution of the Extra-territorial Mareva Injunction in Canada: Three Issues by Stephen G.A. Pitel (Associate Professor, Faculty of Law, University of Western Ontario) & Andrew Valentine (LLB student, Faculty of Law, University of Western Ontario)
• The European Court of Justic, English Courts and the Continued Use of the Anti-Suit Injunction in Support of Agreements to Arbitrate: Through Transport v New India by Nicholas Pengelley (Osgoode Hall Law School, York University)
• The Scope of the Conflict of Laws: Provisions in the European Insurance Directives by Louise Merrett (Fellow and Barrister, Trinity College, Cambridge and Fountain Court Chambers, London)
• "Mind the Gap Part II" The South African Supreme Court of Appeal and Characterisation by Christopher Forsyth (Director, Centre for Public Law, University of Cambridge)

Information on subscribing to the Journal can be found here.  

Readers may also be interested in the forthcoming Journal of Private International Law Conference 2007, to be held at the University of Birmingham on 26 - 27 June 2007. Please see the Call for Papers for more information - you are encouraged to submit your abstract as soon as possible.

With the official launch reception only a couple of weeks away, the latest edition of the one of the world's foremost authorities on private international law is now available for purchase. First published in 1896, Dicey, Morris & Collins, The Conflict of Laws is in its 14th edition. The editors of this seminal work are:

• General Editor: The Hon Mr Justice Lawrence Collins
• Editor: Professor C G J Morse
• Editor: Professor David McClean
• Editor: Professor Adrian Briggs
• Editor: Professor Jonathan Harris
• Editor: Professor Campbell McLachlan

Most will, of course, notice the change in authorship; Sir Lawrence Collins has been elevated to co-author status, to reflect the work and scholarship he has invested in the book since he took over as General Editor in 1987. The publishers, Sweet & Maxwell, describe the latest edition thus:

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice which determine how the law of England and Wales relates to other legal systems. Explanation of each rule is followed by comment, and illustration by detailed reference to case law, ensuring it remains an in-depth but accessible research tool.
It provides definitive reference for all practitioners concerned with issues such as contracts made or performed in other jurisdictions or with foreign parties, property situated overseas, disputes relating to torts committed abroad or committed by foreign parties, and personal and family matters involving people in other jurisdictions.

• Completely revised and updated to include analysis of all the key legislation and cases since the last edition
• Deals with the impact of the Civil Procedure Rules on private international law
• Includes analysis of judicial decisions from common law jurisdictions as well as detailed consideration of international conventions and EU materials
• Supplemented annually to stay up to date with developments in legislation and case law

ISBN: 042188360X / 9780421883604 (Hardback). Price: £349. Available from Amazon, Hammicks Legal, and Sweet & Maxwell.

A comparative article on international prenuptial agreements - focused on the failure of English courts to enforce prenuptial agreements -  will be published in the forthcoming issue of International Family Law. In the article entitled "Enforceable Pre-nuptial Agreements: the World View" international family lawyer Jeremy D. Morley calls the English approach:

an anachronistic peculiarity of English law and an unfortunate example of a stubborn refusal to adapt the law to new conditions.

Morley argues that the recent judgments of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 point to the urgent need for the courts to set aside the preposterous contention that it is 'substantially uncontestable' that substantial harm to the public would arise if prenuptial agreements were enforceable.

He states that the current law results from the ruling in 1929 in Hyman v Hyman [1929] AC 601 that binding prenuptial agreements contravened public policy. However, society has changed dramatically since 1929. When Hyman was decided, people had little expectation of getting divorced and divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce. The status of marriage itself provided all of the necessary terms of the relationship between spouses. Morley goes on to argue that as,

 international affairs proliferate, England's "anomalous view of prenuptial agreements will increasingly and inappropriately create problems for international litigants.

See Issue 4 of 2006 International Family Law for the full article.

Richard Taylor (DLA Piper) has written a short summary in the latest issue of the Law Society Gazette, discussing the response by the European Court of Justice, in Roche Nederland BV v Primus (C-539/03) and in Gesellschaft fur Antriebstechnik mbH & Co KG (GAT) v Lamellen und Kupplungsbau Beteiligungs KG (LuK) (C-4/03), to attempts by European courts to extend their jurisdiction over European patent disputes, referring to the provisions of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968.

Ref: Law Society's Gazette L.S.G. (2006) Vol.103 No.39 Page 31

In other news, the European Parliament's second reading of the proposal for the adoption of a Regulation of the European Parliament and of the Council creating a European order for payment procedure is scheduled for the 23rd October 2006.

The discussions in the various European organs have gone smoothly for this particular proposed Regulation. The only point of difference between the amended Commission proposal and the common position of the Council concerns the definition of the term “cross-border case”. The Commission "regrets" the limitation to cases where both parties are domiciled in a Member State and has made a declaration accordingly.

No surprises are expected on the 23rd October either; the common position of the Council has been negotiated together with the European Parliament in view of reaching a first-reading agreement. Therefore the European Parliament should not request any amendments of the common position - at least in theory.

The European Data Protection Supervisor (EDPS) has given his opinion on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (COM(2005) 649 final).

The matters discussed in the opinion are limited to those concerning personal data protection. The EDPS summarizes the main thrust of the Proposal thus:

the proposal lays down a mechanism of exchange of information about the debtor and the creditor of maintenance obligations, with a view to facilitating the establishment and the recovery of maintenance claims. For this purpose, central national authorities will be designated in order to handle requests of information lodged by national judicial authorities (of other Member States) and collect personal data from different national administrations and authorities in order to fulfil these requests. The usual procedure will be as follows: a creditor will lodge an application through a court; the national central authority, upon request of the Court, will send an application to the central authorities of the requested Member State (through a specific form contained in Annex V); the latter central authorities will gather the requested information and will reply to the requesting central authority, which will then provide the information to the requesting court (para.4.)

The EDPS notes that the current proposal does not provide for exchanges of personal data with third countries, but international cooperation is explicitly envisaged in the explanatory memorandum. In this context, the EDPS states, it is noteworthy to mention the ongoing negotiations for a new comprehensive Convention of the Hague Conference on Private International Law concerning international recovery of maintenance. He continues:

It goes without saying that this international cooperation is likely to lay down mechanisms for exchanges of personal data with third countries. In this regard, the EDPS would like to stress again that these exchanges should be allowed only if the third country ensures an adequate level of protection of personal data or if the transfer falls within the scope of one of the derogations laid down by Directive 95/46/EC.

Overall, the EDPS welcomes the proposal, subject to alterations and reservations of a technical, rather than substantive, nature. The opinion of the EDPS can be found here.

Many thanks to the EU Law Blog for the tip-off.

The most significant reform of Japanese private international law for more than a century has been completed with the enactment of a new Act. The new Act, Ho no Tekiyo ni Kansuru Tsusoku Ho, will come into effect on 1st January 2007. The reform is far-reaching and covers, inter alia, contract, tort, unjust enrichment, and assignment of rights.

For further details, see Koji Takahashi, “A Major Reform of Japanese Private International Law” (2006) 2 Journal of Private International Law 311, due out this month.

At its recent Justice and Home Affairs meeting (2752nd), the Council adopted a decision on the accession of the European Community to the Hague Conference on private international law (HCCH) (7591/06). Page 30 of the press release states:

At present, the Community enjoys only observer status in the HCCH. Full membership is necessary for two reasons. It would grant the Community a status consistent with its new role as a major international player in the field of civil judicial cooperation. It would also enable the Community to fully participate in the negotiation of conventions in areas of its competence by expressing its views and positions and ensuring consistency and coherence between its own rules and envisaged international instruments. Moreover, the Community as such rather than its Member States would be the subject of the rights and obligations stemming from Hague Conventions in areas of its competence.

The Hague Conference on private international law is a long-established international organisation with the objective of ensuring the progressive unification of the rules of private international law, mainly by negotiating and drafting international conventions (www.hcch.net).

In other news, the Council confirmed its common position on the European Small Claims Procedure.

Following its agreement on 1 and 2 June 2006 and after completion of the work on recitals and standard forms, the Council confirmed its general agreement on the whole of a draft regulation establishing a European small claims procedure. The European Parliament has not yet delivered its opinion in first reading.

The purpose of this proposal is to simplify and speed up litigation concerning small claims in crossborder cases and to reduce costs by establishing a European Procedure for Small Claims. The proposal also eliminates the intermediate measures necessary to enable recognition and enforcement of judgments given in one Member State in a European Small Claims Procedure in other Member States.

This draft Regulation will apply, in cross-border cases, in civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 2000 at the time the procedure is commenced, excluding all interest, expenses and outlays. Litigation on revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of state authority is excluded from the scope of application.

…A claimant will commence the European Small Claims Procedure by completing a claim form set out in the Annex to the text and lodging it at the competent court or tribunal directly, by post or by any other means of communication such as fax or e-mail acceptable to the Member State in which the procedure is commenced. The claim form will include a description of evidence supporting the claim and be accompanied, where appropriate, by any relevant supporting documents. Once the Regulation will be adopted, it will be applied in all Member States with the exception of Denmark. (p.28-29)

The full press release for both items can be found here.

In the wake of the Council's common position on the proposed adoption of a Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations ("Rome II") (see our news item on the common position here), the European Commission have published their Communication to the European Parliament, pursuant to Art 251(2) of the EC Treaty.

The Communication discusses the common position's points of departure from both the Commission's modified proposal on 21 February 2006, and the amendments made by the European Parliament on 6 July 2005 (which were reflected in the Commission's modified proposal.) One point in particular may be of interest:

Article 16 departs from Article 13 of the Commission’s amended proposal which contained an additional paragraph dealing with the possibility for the court to give effect to overriding mandatory rules of another country than the country whose law is applicable under the rules of the instrument. This provision in the Commission’s proposal did not reflect any particular Community interest; it was aiming at consistency as it was inspired by a similar provision in the 1980 Rome Convention on the Law Applicable to Contractual Obligations. The Commission has accepted this deletion.

Whilst the Commission states overall that it, "accepts the common position in the light of the fact that it includes the key elements included in its initial proposal and Parliament’s amendments as incorporated into its amended proposal", there are nevertheless some strong indicators of its displeasure over the common position in the text. For example:

The Commission continues to regret the approach in the common position which provides for a rather complex system of cascade application of connecting factors. It remains persuaded that its original solution offered an equally balanced solution for the interests at stake, while expressed in much simpler drafting.

The word "regret", in fact, appears no less than four times in the six-page document. It will be interesting to see what the European Parliament makes of it all; the second reading has been scheduled by the DG of the Presidency for 12 December 2006.

The Commission's Communication to the European Parliament can be downloaded from here (PDF). All comments welcome.

A German case which has been reported on before has now been continued (see for the facts and the history of the case the following older entry: Recognition of a Surname and Validity). After the ECJ has refused to hear the case in its judgment of 27th April 2006 (C-96/04), the parents filed an application at the Local Court (Amtsgericht) Flensburg to instruct the registrar to recognize the double-barrelled name of their son which had been determined according to Danish law and to register their son under this name in the family register. However, according to the Local Court (Amtsgericht) Flensburg, the court is not competent to instruct the registrar to register the applicants` son under this name since German law (§ 1617 I 1 German Civil Code (BGB)) does not provide for double-barrelled names if the parents do not use a common married name. Since the court regards it as a violation of Artt. 12, 18 EC-Treaty to ask a citizen of the European Union to use different names in different Member States, the court sees itself obliged to bring the matter before the Court of Justice according to Art. 234 III EC-Treaty.

Therefore the Local Court (Amtsgericht) Flensburg asked with decision of 16th August 2006 (69 III 11/06) the ECJ to give a preliminary ruling on the following question: "In light of the prohibition on discrimination set out in Article 12 of the EC Treaty and having regard to the right to the freedom of movement for every citizen of the Union laid down by Article 18 of the EC Treaty, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?" (see C-353/06)

We await the decision with interest.

Diana Wallis MEP, on behalf of the ALDE group, is holding a seminar on 17 October 2006 in the European Parliament. The seminar is entitled: 'A coherent legal regime for EU media - Balancing liberties. The right to be let alone v. freedom of speech'. As Ms Wallis' website states,

This event will gather experts, academics and Members of the European Parliament to discuss the current legal regime for EU media and explore possible options for the future, in particular with regard to the issue of applicable law. This seminar is set against the background of the Commission's rejection of Parliament's first reading formulation on defamation and the withdrawal of these provisions from the draft Regulation. The second reading of Rome II scheduled for the end of 2006 also coincides with the discussions on Television without Frontiers and the review of Brussels I and the E-commerce Directive.

DRAFT PROGRAMME

12.45 - 13.00: Introductory Welcome

Session 1. Chair: Diana Wallis MEP, Rapporteur on Rome II

13.00 -13.30: European Private International Law and the media: relationship between existing instruments

• Speakers: Gregory Paulger, DG 'Information, Society and Media', European Commission
• Claudia Hahn, DG 'Justice and Home Affairs', European Commission

13.30 - 14.00: Jurisdiction, applicable law and the country of origin principle

• Speakers: Horatia Muir Watts, Université Paris I Panthéon Sorbonne
• Professor Paul Beaumont, University of Aberdeen

14.00 - 14.30: Q&A

14.30 - 14.50: Tea and coffee break

Session 2. Chair: Jean-Marie Cavada MEP, Chairman of LIBE

14.50 - 15.20: Applicable law to the violation of personality rights - a quest for reasonableness?

• Speakers: Marie-Christine de Perçin, vice chairperson of Presse-Liberté
• Speaker invited

15.20 - 15.50: Regulating the media: what role for the EU?

• Speakers: Tim Sutter, OFCOM
• Cecilia Renfors, Swedish audiovisual board

15.50 - 16.20: Q&A

16.20 - 16.30: Conclusions

The event will take place on Tuesday 17 October 2006 from 12.45 to 16.30 at European Parliament, Brussels, room ASP 3G3. More information on attending the event can be found here.

The German Federal Supreme Court assumed international jurisdiction of German courts according to Art. 5 Nr.3 Brussels I Regulation in a case of an application for an injunction due to nuisance according to § 1004 German Civil Code (judgment of 24.10.2005 - II ZR 329/03).

See for an annotation: Erik Jayme, IPRax 2006, 502.

A new dissertation on private international law of family law has been published: Inke Dietz, Das Erbrecht des Adoptivkindes im Internationalen Privatrecht.

The publisher´s information reads as follows:

"Social developments have lead to an increasing significance of international adoptions in recent years. Starting from this finding, the thesis gives an overview of the developments of the German law on adoption including the adoption´s effects on the right to succeed (…) before examining German choice of law rules on adoption and the choice of law rules concerning the adoptive child´s right to succeed as well as the intertwining of the lex successionis on the one side and the applicable law on adoption on the other side. Further, the recognition of adoptions according to the Hague Convention on protection of children and co-operation in respect of intercountry adoption of 1993 is considered as well as the option to transform weak adoptions according to the Adoptionswirkungsgesetz (law on the effects of adoptions according to foreign law)."

Speeches which have been held to celebrate the 70th birthday of Karl Kreuzer have been published in the following volume: Eva-Maria Kieninger (ed.), Denationalisierung des Privatrechts? Symposium anlässlich des 70. Geburtstages von Karl Kreuzer.

Here is the content:

• Klaus Laubenthal (Würzburg), Begrüßung (Greeting)
• Eva-Maria Kieninger (Würzburg), Einführung in das Thema (Introduction)
• Paul Lagarde (Paris), Internationales Privatrecht und Europarecht (Private International Law and European Law)
• Roy Goode (Oxford), The harmonization of dispositive contract and commercial law - should the European Community be involved?
• Hans van Loon (The Hague), Unification of private international law in a multi-forum context
• Herbert Kronke (Rome/Heidelberg), Herausforderungen internationaler Privatrechtsmodernisierung (Challenges of the international harmonisation of private law)
• Karl Kreuzer (Würzburg), Schlussworte (Closing words)

Samuel Issacharoff (New York University School of Law) has made his forthcoming article in the Columbia Law Review, "Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act", available for download on SSRN. The abstract reads as follows:

This Essay examines the pressure placed upon choice of law doctrine by the newly enacted Class Action Fairness Act ("CAFA"). The core argument is that current choice of law doctrine, which assumes fidelity to the forum state choice of law rules as its basic premise, corresponds poorly to the national scope of economic activity in cases brought into federal court under CAFA. The Essay argues that there needs to be some conformity between the national scale of contemporary economic activity and the state-by-state presumption of inherited conflict of laws doctrine in order to provide some sensible legal oversight of national market conduct. Because of the multiplicity of potential forums for litigation of national market activity, the inherited doctrines of Klaxon Co. v. Stentor Electric Manufacturing Co. and Erie Railroad Co. v. Tompkins do little to provide settled expectations about the substantive laws governing broad-scale economic conduct.

The Essay offers an approach that should guide choice of law rules in the context of national market cases based on the need to facilitate common legal oversight of undifferentiated national market activity. The claim here is that conduct that arises from mass-produced goods entering the stream of commerce with no preset purchaser or destination should be treated as just that: goods in the national market. In the absence of national choice of law rules, this Essay suggests that courts should, as a default rule, apply the laws of the home state of the defendant to all standardized claims, regardless of the situs of the final injury. The upshot of this approach is to suggest a path for future development of national market cases that have been brought into the federal courts as a result of CAFA.

The full article can be downloaded from here.

The Court of Appeal (OLG) Zweibrücken held in a recent decision (10.5.2005 - 3 W 165/04) that a foreign judgment cannot be recognized if the defendant was not served with the document which instituted the proceedings (here: "dagvaarding" of a Belgium court) according to Art. 34 Nr. 2 Brussels I.

The decision has been published in IPRax 2006, 487. See for an annotation: Herbert Roth, IPRax 2006, 466, who stresses the significance of Artt. 32 et seq. Brussels I and criticises therefore the plans to abolish the enforcement proceedings and the public policy clause de lege ferenda.

The Future of Private International Law in England and Wales - Seminar at the British Institute of International & Comparative Law

Tuesday 24 October 2006 17:00 to 19:00
Location: Charles Clore House, 17 Russell Square, London WC1B 5JP

Participants

• Lord Mance
• Professor Jonathan Harris, Birmingham University and Brick Court Chambers
• Adeline Chong, Nottingham University
• Adam Johnson, Herbert Smith

This seminar is part of the British Institute's Evening Seminar Series on Private International Law which will run throughout the Autumn of 2006 and well into 2007 titled 'Private International Law in the UK: Current Topics and Changing Landscapes'.

The series explores issues which are of topical importance for current legal practice and study in the field of Private International Law. Led by leading experts in the field, they will evaluate, in particular, the growing impact of the establishment of a European Civil Justice Area on the future of Private International Law in the UK.

Other Featured Events:

2006

1. 21 November: Substance and Procedure in the Law Applicable to Torts: Harding v Wealands
2. 18 December: Civil Remedies for Torture in the UK Courts: Jones v Saudi Arabia

2007

1. January: Non-justiciability: Reappraisal of Buttes Gas in the light of recent Decisions
2. 22 January: Intellectual Property Problems: Jurisdiction in IP Disputes
3. 22 January: The Future of International Patent Litigation in Europe
4. February: Resolving Family Conflicts in the EU: The Changing Landscape
5. March: The Road to Rome: An Update on the Law Applicable to Contractual Obligations

The British Institute's Series on Private International Law is kindly sponsored by Herbert Smith.

For more information, please log on to the BIICL website.