Conflict of Laws .net

A recent decision by the United States Court of Appeals for the Third Circuit raises a very simple, but still very fragmented, issue regarding U.S. jurisdictional doctrine: When does a claim “arise out of” a foreign defendant’s contacts with the forum so as to justify the assertion of specific jurisdiction over him. In O’Connor v. Sandy Lane Hotel, Inc., a Pennsylvania resident sued a Barbados resort in federal district court in Philadelphia, Pennsylvania, for a slip-and-fall accident that occurred in its spa. Plaintiff sought to pin personal jurisdiction over the defendant based on the advertisements and promotional mailings that defendant sent, and plaintiff received, in that state. The District Court found no specific jurisdiction and dismissed the case.

The Third Circuit reversed. In a studious opinion by Judge Chagares, the panel began by recognizing the yet-unsettled nature of the specific jurisdiction doctrine. It noted that the Supreme Court granted certiorari over this very question in 1991, but decided that case – Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) — on other grounds. It then went on to discuss the three-way split among at least five circuits on the required degree of connectedness between purposeful forum contacts and the plaintiff’s claims to justify specific jurisdiction. On the one end of the continuum, the First Circuit uses a narrow “proximate causation” test, and asserts specific jurisdiction only when the forum contact is the proximate cause of the harm and the claim. On the other end, the Ninth Circuit uses an expansive “but-for” test, and asserts specific jurisdiction simply if the harm would not have occurred without the forum contact. The Second and D.C. Circuits apply a fluid “substantial connection” test that falls somewhere in the middle, and pins specific jurisdiciton on the “totality of the circumstances.” Judge Chagares purported to take the middle road – requiring more than a ‘but-for’ link and shy of proximate causation. The Third Circuit now seems comitted to specific jurisdiction so long as the defendant’s forum contacts were “meaningfully link[ed]” to the “substance of plaintiff’s claims.” Apparently, soliciting a “contract for spa services” via out-of-forum mailings is “meaningfully link[ed]” to a later action sounding in tort.

Beyond the uncertainty of the national rule, there is an immediate practical concern as well. For the time being, in at least the Third and Ninth Circuits, there seems to be emerging a categorical rule that any out-of-jurisdiction services solicited by mail or other communication into the forum will give rise to potential tort suits for negligence if the service would not have been provided without the forum contact. That seems to extend the specific juriusdiciton doctrine from its original moorings substantially.

Some other reports on this decision are located here. A link to the decision is provided here.

A new commentary on Brussels I Regulation has been recently published by Sellier - European Law Publishers, as the first volume of a new series “European Commentaries on Private International Law“. It is edited by Prof. Peter Mankowski and Prof. Ulrich Magnus (both Hamburg) and has been written by a team of scholars from all over Europe. As the editors write in the preface:

Legal writing on the Brussels system is thorough and virtually uncountable throughout Europe. Yet no-one has so far taken the effort of completing a truly pan-European commentary mirroring the pan-European nature of its fascinating object. The existing commentaries clearly each stem from certain national perspectives and more or less deliberately reflect certain national traditions. The co-operation across and bridging borders had not truly reached European jurisprudence in this regard. This is why the idea of this commentary was conceived. This commentary for the first time assembles a team of very prominent and renowned authors from total Europe.

Here’s an excerpt of the blurb from the publisher’s website:

This commentary is the first full scale article-by-article commentary in English ever to address the Brussels I Regulation. It is truly European in nature and style. It provides thorough and succinct indepth analysis of every single article and offers most valuable guidance for lawyers, judges and academics throughout Europe. It is an indispensable working tool for all practitioners involved in this field of law. […]

A true first:
- The first truly European commentary on the Brussels I Regulation, the fundamental Act for jurisdiction, recognition and enforcement throughout Europe
- The first commentary on the Brussels I Regulation written by a team from all over Europe
- The first article-by-article commentary on the Brussels I Regulation in English

This new series will comment on the Brussels I Regulation and the Brussels IIbis Regulation and as soon as they are enacted on the Rome I and the Rome II Regulation. For the first time this will be done by a team of leading experts from almost all EU member states. The close cooperation among them will initiate a new specific European style of commenting on European enactments merging the various and thus far nationwide differing methods of Interpretation of legislative acts. It goes without saying that the new commentaries will pay particular tribute to the practice of the European Court of Justice but to relevant judgments of national courts as well. Moreover, the needs of practitioners and the requirements of the practice will receive particular attention.

The series is intended to be continued by further volumes on existing and future European enactments in the field of private and procedural law.

And this is the authors’ list:

Introduction: Ulrich Magnus; Art. 1: Pippa Rogerson; Arts. 2-4: Paul Vlas; Art. 5: Peter Mankowski; Arts. 6-7: Horatia Muir Watt; Arts. 8-14: Helmut Heiss; Arts. 15-17: Peter Arnt Nielsen; Arts. 18-21: Carlos Esplugues Mota/Guillermo Palao Moreno; Art. 22: Luis de Lima Pinheiro; Art. 23: Ulrich Magnus; Art. 24: Alfonso Luis Calvo Caravaca/Javier Carrascosa González; Arts. 25-26: Ilaria Queirolo; Arts. 27-30: Richard Fentiman; Art. 31: Marta Pertegás Sender; Arts. 32-33: Patrick Wautelet; Art. 34: Stéphanie Francq; Arts. 35-36: Peter Mankowski; Art. 37: Patrick Wautelet; Arts. 38-45: Konstantinos Kerameus; Arts. 46-52: Lennart Pålsson; Arts. 53-58: Lajos Vékás; Arts. 59-60: Paul Vlas; Arts. 61-76: Peter Mankowski.

A TOC can be downloaded from the publisher’s website. It provides a useful list of the principal works on Brussels I Regulation and an additional bibliography. A short extract of the volume is also available for download.

Title: Brussels I Regulation - European Commentaries on Private International Law - Edited by Peter Mankowski, Ulrich Magnus. July 2007 (XXVIII, 852 pages).

ISBN: 978-3-935808-32-3. Price: EUR 250. Available from Sellier - European Law Publishers.

The German Federal Supreme Court (Bundesgerichtshof) has referred with decision of 21 June 2007 (IX ZR 39/06) the following questions to the European Court of Justice for a preliminary ruling:

On interpreting Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings and Article 1(2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, do the courts of the Member State within the territory of which insolvency proceedings regarding the debtor’s assets have been opened have international jurisdiction under Regulation (EC) No 1346/2000 in respect of an action in the context of the insolvency to set a transaction aside that is brought against a person whose registered office is in another Member State?

If the first question is to be answered in the negative:

Does an action in the context of the insolvency to set a transaction aside fall within Article 1(2)(b) of Regulation (EC) No 44/2001?

Jurisdiction with regard to proceedings which are closely connected with the insolvency proceedings themselves is highly contentious.

Since the Insolvency Regulation does not contain an explicit provision on this matter - even though referring to “judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings” in Recital No. 6 - there are, briefly summarised, three different approaches: According to the first opinion jurisdiction has to be based on the Brussels I Regulation, according to a second approach it has to be referred to national law, while a third position suggests an analogous application of Art. 3 (1) Insolvency Regulation.

In the present case the Court of Appeal (Oberlandesgericht Frankfurt) favoured the first approach and held that Art. 1 (2) lit. b Brussels I Regulation had to be - in view of the Regulation’s goal to establish uniform rules in civil and commercial matters - interpreted narrowly and did therefore, as Art. 3 (1) Insolvency Regulation, only include collective insolvency proceedings, not however actions to set aside transactions in insolvency (Insolvenzanfechtungsklagen). Consequently the application of the Brussels I Regulation was not excluded, which led in the present case to the result that German courts lacked international jurisdiction.

This point of view is supported by some German legal writers who argue that Art. 1 (2) lit. b Brussels I Regulation had to be, at least since the entry into force of the Insolvency Regulation, construed more strictly. This, however, can be regarded as a departure from the previous case law of the ECJ (Gourdain v. Nadler) as well as the Bundesgerichtshof. In Gourdain v. Nadler, the ECJ held that Art. 1 (2) No. 2 Brussels Convention (which is identical with Art. 1 (2) lit. b Brussels Regulation) includes all proceedings which “derive directly from the bankruptcy or winding-up and [are] closely connected with the proceedings […].” The same view was taken by the Bundesgerichtshof in 1990 (judgment of 11 January 1990 - IX ZR 27/89, ZIP 1990, 246) by holding that avoidance proceedings by a trustee in bankruptcy are included by Art. 1 (2) No. 2 Brussels Convention and therefore excluded from the scope of the Convention.

Contrary to the Court of Appeal, the Bundesgerichtshof tends in the present case, in accordance with a widely held opinion in German literature, to apply Art. 3 (1) Insolvency Regulation and assumes therefore international jurisdiction of German courts in the present case. However, since the Bundesgerichtshof regards the question not to be unambiguous, it decided to refer the aforementioned questions to the ECJ.

The referring decision can be found at the website of the Bundesgerichtshof as well as in the following legal journals:
ZIP 2007, 1415 et seq.; DB 2007, 1693 et seq.; ZInsO 2007, 770 et seq.

An annotation by Lars Klöhn and Olaf Berner (both Göttingen) arguing in favour of an application of Regulation 44/2001 - and not 1346/2000 - can be found in ZIP 2007, 1418 et seq.

The case is pending at the ECJ as Rechtsanwalt Christopher Seagon als Insolvenzverwalter über das Vermögen der Frick Teppichboden Supermärkte GmbH v. Deko Marty Belgium N.V. (C-339/07).

A very interesting judgment was handed down in the High Court on 15th August 2007 in the case of Long Beach & Nguesso v Global Witness [2007] EWHC 180 (QB). Professor Jeremy Phillips at the IPKat blog has posted an excellent summary of the case. I have reproduced sections of his post here, and supplemented them with a little more detail on the private international law issues.

Nguesso, son of the President of the Congo, was also President and Director General of the marketing arm of Cotrade, the Congolese state-owned oil company. He owned Long Beach, a company registered in Anguilla. This application was brought by Nguesso and Long Beach against Global Witness, a non-profit-making English company which campaigns against corruption and which was nominated for a Nobel Prize for its work back in 2003.

Kensington, a vulture fund that buys debts cheaply in the hope of getting something back, brought proceedings in Hong Kong in order to trace and seize assets belonging to the Congo. That court ordered a company in Hong Kong to disclose information and documents to Kensington. Those documents, which disclosed information about the financial activities of Nguesso and Long Beach, were referred to at a hearing of the Hong Kong court that was open to the public. Kensington then passed copies of the documents to Global Witness, which posted them on its website.

On the application of Nguesso and Long Beach, the Hong Kong court - sitting in private and without Global Witness being a party to the proceedings - ordered Global Witness not to publish the documents or even to disclose the facts of the making of the application.

Nguesso and Long Beach then sued Global Witness in England and Wales, relying on

1. their rights to confidentiality and privacy under English law;
2. Nguesso’s right of privacy under Article 8 of the European Convention on Human Rights, alleging misuse of the documents by both Global Witness and Kensington.

According to the applicants,

1. an English court was required, as a matter of comity between courts in friendly jurisdictions, not to question the correctness of the judgment of the Hong Kong court;
2. the documents remained private and confidential, even though they were referred to in court open to the public in Hong Kong;
3. Nguesso’s rights under Article 8 were clearly engaged and the publication of the documents infringed those rights.

On the issue of the recognition and enforcement of the Hong Kong judgment, Burnton J. stated (at para. 23),

As appears from the terms of their application, the Claimants issued this application seeking relief under section 25 of the Civil Jurisdiction and Judgments Act 1982. At the beginning of the hearing, I pointed out that, under our rules for the recognition and enforcement of foreign judgments, it did not seem that GW was subject to the jurisdiction of the Hong Kong court [since it did not carry on business in Hong Kong], and therefore it would not be bound by any final order made by that court. It seemed to me that that consideration is most material to the grant of relief under section 25. Having been given time to consider the point, the Claimants decided not to pursue their claim under section 25.

It follows that for the purposes of this application the Claimants must rely on their substantive rights, i.e. their rights to confidentiality and privacy, on the Second Claimant’s rights under Article 8, and on what they contend was a misuse of documents by Kensington and GW.

The Claimants then turned to the principle of comity, arguing tht it required the English court to not question the correctness of the Hong Kong decision, and should not undermine or question its subsequent injunction against publication of the documents. Burnton J. held (at para. 26),

Comity requires this court to treat the judgments and orders of the courts of Hong Kong with due respect and even deference. However, in effect, the Claimants seek to treat those judgments and orders as binding on GW. GW was not a party to the Hong Kong proceedings when the judgment of 30 June 2007 was given, and they cannot be bound by it. Furthermore, since it does not carry on business in Hong Kong, it is not subject to that jurisdiction under our rules for the recognition of foreign judgments, and these courts do not regard it as having an obligation to comply with the judgments of that jurisdiction. The fact that the order of 6 July was made against them ex parte, in circumstances in which they had been informed of the Claimants’ application on the previous day, and presumably, given the time difference, less than 24 hours before the hearing before Mr Justice A Cheung, reinforces this point. True it is that GW could apply in Hong Kong to set aside the order of 6 July, but that would require a non-profit-making organisation to expend considerable resources on legal representation there and may involve its submitting to that jurisdiction. In any event, the rights of free expression on which they rely are rights under our law, not under Hong Kong law.

Burnton J. went on to hold that,

• The significant public interest in the subject matter of the disclosed documents was such that Global Witness’s right of communication under Article 10 of the European Convention on Human Rights would be violated if an English court considered itself bound by the restrictions on reference to the procedures of the Hong Kong court;

• the specified documents were, when disclosed to Kensington, confidential by their very nature and content. That they were referred to in open court was clear, though the extent of that reference was not. This being so, court should proceed on the basis that there was sufficient reference to them as would have removed their confidential status if they had been disclosed on discovery and referred to in open court in England;

• neither Long Beach ot NGuesso had shown that they were likely to establish at trial that the documents were protected by confidentiality;

• while Nguesso’s right of privacy under Article 8 was undoubtedly engaged, there was a clear and overwhelming case for refusing relief on the ground that there was an important public interest in the publication of the specified documents and the information derived from them;

• once there was good reason to doubt the propriety of the financial affairs of a public official, there was a public interest in those affairs being open to public scrutiny.

(Visit the IPKat blog for news and views in IP law.)

Following swiftly on from our previous post on the amendments provided by the Draft Reform Treaty to the provisions dealing with judicial cooperation in civil matters, we would like to point out a very detailed analysis of the entire text of the Treaties, prepared by Prof. Steve Peers (University of Essex) and published on the statewatch.org website. The analysis is divided in several parts, each consisting of an article by article comparison, with comments, of the text resulting from the Draft Reform Treaty, the current version of the TEC/TEU and the 2004 Constitutional Treaty. The new Title IV of the future Treaty on the Functioning of the European Union, on the “Area of Freedom, Security and Justice”, is the subject of the Analysis no. 1 (Justice and Home Affairs issues).

Here’s a presentation by the author, including a list of the various parts of the analysis (the .pdf files can be downloaded from the home page of the project):

In order to further public understanding of and debate upon the draft Reform Treaty, the following Statewatch analyses make the text of the draft Treaty comprehensible, by setting out the entire texts of the existing TEU and TEC and showing precisely how those texts would be amended by the draft Treaty. There are explanatory notes on the impact of each substantive amendment to the Treaties, and each analysis includes general comments, giving an overview of the changes and pointing out exactly which provisions of the draft Reform Treaty were taken from the Constitutional Treaty, and which provisions are different from the Constitutional Treaty.

There are 3 analyses, divided into ten parts.

Analysis no. 1

• focusses on the issue of Justice and Home Affairs

Analysis no. 2 is the amended text of the TEU, and is divided into 2 parts:

• the non-foreign policy part of the Treaty (basic principles and key institutional rules of the EU) and
• the foreign policy part of that Treaty

Analysis no. 3 is the amended text of the TEC, and is divided into seven parts more or less following the structure of the Treaty:

• Part One of the Treaty on general provisions
• Part Two on non-discrimination and citizenship
• half of Part Three on the internal market and competition (except for the JHA clauses, which are the subject of analysis no. 1)
• the second half of Part Three, on other internal EU policies (such as social policy, monetary union and environment policy)
• Parts Four and Five, on the associated territories and external relations (including trade and development policy)
• Part Six, on the institutional rules (including the rules on the political institutions, the Court of Justice and the ‘flexibility’ rules)
• Part Seven, the final provisions

(Thanks to Allard Knook, of the ECJBlog, for the tip off)

The newly-published 14th book in the European Family Law Series from Intersentia is “Brussels II bis: Its Impact and Application in the Member States” by K. Boele-Woelki and C Gonzalez Beilfuss. Here’s the book blurb:

The Brussels II bis Regulation which contains uniform rules for jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility became effective as of 1st March 2005 for 24 Member States of the European Union. This book addresses the impact and application of the new rules in the form of national reports. The authors provide answers to questions such as: What is the impact of the Regulation on national private international law on the one side, and on substantive law, on the other? Does the Regulation mean that changes have to be made in the national systems? Are there any difficulties as regards the consistency of the private international law system? In how far does the Regulation match the substantive law both as regards divorce and parental responsibility? Are there any difficulties as regards the implementation of the Regulation in the national systems? Have any implementing measures been taken?

A comparative synthesis of the impact and application of the Brussels II bis Regulation within the European Union and a general introduction into the Europeanisation of private international law in family matters complement the book. As a result it contains the latest update of international family law in Europe.

Purchase details for Intersentia customers can be found here. If you are a UK customer, you can order the book from Hart Publishing for £60. ISBN: 90-5095-644-0.

The second issue of 2007’s Revue Critique de Droit International Privé has been released. In addition to ten case notes, it contains two articles on conflict issues.

The first is authored by Professor Sylvain Bollée, of Reims University, and deals with the extension of the scope of the method of unilateral recognition (L’extension du domaine de la méthode de reconnaissance unilatérale). The English abstract reads:

While the method of unilateral recognition is traditionally considered to apply only to foreign judgements or decisions, one can observe that it is now taking on a more extensive form, in particular insofar as it covers the effect of non-decisional foreign public acts. In such cases, closer analysis reveals that recognition does not actually apply to the public act itself, but to the rules by virtue of which such an act produces legal effects within the foreign legal system. These rules are therefore given effect independantly of any designation by a bilateral conflict of laws rule of the legal system to which the acting authority belongs. This is a discrete and perfectly legitimate expression of unilateralism, of which the precise conditions need to be determined. In this respect, it is submitted that rules governing the recognition of foreign judgements could be applied here, except for discrete adjustments and the exclusion of any enforcement procedure such as exequatur.

The second article is authored by Professor Ana Quinones Escámez, of Pompeu Fabra University (Barcelona). The article offers a proposition for the creation, the recognition and the effect of marriages and like unions (Proposition pour la formation, la reconnaissance et l’efficacité internationale des unions conjugales ou de couple). The English abstract reads:

Linked to the proliferation of new forms of marriage or quasi-marriage, the latest methodological effort required of Private international law is to apply the development of a real lex matrimonii in which the law of the place of registration coincides with the lex fori, sometimes hidden under the mantle of public policy. Analysis of situations born of a public act reveals the lex matrimonii as the product of the maxim auctor regit actum and the unilateralist problematic of conflict of public authorities. It leads to proposing solutions which as far as the formation of marriage is concerned, subordinate the issue of choice of applicable law in order to concentrate on issues of jurisdiction and which, at the level of international movement of the new status, make recognition depend on a proximistic-type of assessment of the jurisdiction of the foreign authority and the substantive conformity of the foreign institution to the requirements of forum public policy. For situations resulting from common law or other non formalised marriages the bilateral application of the law of the common habitual residence is recommended.

The article of Professor Quinones Escámez builds on her recent book on Uniones conyugales o de pareja : formación, reconocimiento y eficacia internacional (actos públicos y hechos o actos jurídicos en el derecho internacional privado), Barcelona, 2007.

Articles of the Revue Critique cannot be downloaded.

Professor Jean-Christophe Galloux, one of the CLIP members, made sure that the Group’ message is effectively conveyed to the French-speaking addressees as well. Previously reported text (see here and here) has been translated and published in the Propriété intellectuelle, No. 24 of July 2007, pp. 291-299. The French introduction to the “Les relations conflictuelles de la propriété intellectuelle et la réforme du droit international privé en Europe” reads:

Les décisions rendues par la Cour de justice des communautés européennes le 13 juillet 2006, sonnent le glas d’un certain nombre d’espoirs qui avaient été placés dans la Convention de Bruxelles puis dans le règlement 44/2001 du 22 décembre 2000 pour fluidifier le contentieux de la propriété intellectuelle en général et du brevet en particulier au sein de l’espace communautaire. Ces espoirs s’appuyaient sur la volonté politique de créer un espace judiciaire unifié, réaffirmée par les textes fondateurs, des jurisprudences nationales audacieuses et une vraie nécessité de fournir des instruments procéduraux rendant efficace la lutte contre la contrefaçon transfrontalière. La révision du règlement de 2001, la mise en chantier d’un règlement sur les obligations contractuelles (Rome I) et les travaux menés ces dernières années à l’OMPI et à la Conférence de La Haye permettent de repenser le droit international privé communautaire applicable à la propriété intellectuelle dans des termes enfin moins conflictuels en vue de réaliser les buts que nous venons d’énoncer.

In the case Phelan v Phelan 2007 (1) SA 483 (C) (judgment date 27 July 2006), the High Court of South Africa (Cape Provincial Division) confirmed the conflict of law rule that the place of marriage celebration determines the validity of the marriage. That law applies not only to formal validity, but also to substantial validity, eg whether the parties had the capacity to conclude a valid marriage etc. In this case, the validity of a marriage concluded in New South Wales, Australia was questioned. The parties were ordinarily resident in Ireland at the time of the marriage. One of the spouses had prior to the marriage obtained a divorce order in the Dominican Republic, while neither he nor his ex-spouse had any connection with that country (no domicile, residence, nationality). (It was impossible to divorce in Ireland at the time.) There was no reciprocity regarding the recognition of decrees between the Dominican Republic and Australia. The High Court came to the conclusion that the divorce could therefore not be recognised in Australia and that no valid marriage had come into existence.

The use of the law of the place of marriage celebration to determine validity has the advantage of applying one set of legal rules to both formal and substantive validity. It also reduces the risk of limping marriage, ie the situation where people are married in one country, but divorced in another.

1) Age of majority now 18 in South African law

The entry into force of certain sections of the Children’s Act No 38 of 2005 on 1 July 2007 has changed the age of majority in South African law. It is now 18, while it was 21 before (Sec 17 of the Act). This is relevant for the many young South Africans living abroad, but still domiciled in South Africa or still South African citizens. If the conflict of law rule of the country in which they live points to domicile or nationality for the determination of personal status, these people above 18 will now have full contractual capacity in accordance with South African law.

2) Standard for “best interests of a child”

The Children’s Act also contains a (lengthy) provision on the standard for “best interests of the child”, a concept frequently used in international protection of children, specifically adoption. Such definition is of particular importance in a region which has a growing number of Aids orphans, and where international adoption might increase in future.

Section 7 of the Act states:

(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) the nature of the personal relationship between-
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those circumstances;
(b) the attitude of the parents, or any specific parent, towards-
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from-
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child-
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(g) the child’s-
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that may be caused by-
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
(2) In this section ‘parent’ includes any person who has parental responsibilities and rights in respect of a child.

As it is widely known, the European Council of 21/22 June decided to move on after two years of uncertainty due to the difficult ratification process of the Treaty establishing a Constitution for Europe, signed by the Member States in October 2004. It agreed to convene an Intergovernmental Conference (IGC), pursuant to Art. 48 of the TEU, to draw up a Treaty amending the existing Treaties, in order to introduce into them, which remain in force, the most part of the innovations resulting from the 2004 Constitutional Treaty. As a first, noteworthy change, the EC Treaty (TEC) should change its name to Treaty on the Functioning of the European Union, while the EU Treaty should keep its present name.

The IGC was convened on 23 July 2007 by the Portuguese Presidency, and a Draft Reform Treaty was circulated, drawn up in accordance with the mandate agreed upon by the Member States in the European Council of June. The IGC should complete its work as quickly as possible, and in any case before the end of 2007, so as to allow for sufficient time to ratify the resulting Treaty before the European Parliament elections in June 2009. The Portuguese Presidency aims to reach agreement on a text at the informal European Council in Lisbon on 18 October, and sign it off formally at the final European Council of its term, in next December (see an indicative timetable of the Working Party of Legal Experts, set up by the Presidency).

The new Treaty on the Functioning of the European Union (TFEU) will bring a number of modifications to the current Title IV (”Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons”), Part III (”Community Policies”), of the TEC, which provides the legal basis for measures in the field of judicial cooperation in civil matters (see Art. 61(c), Art. 65 and Art. 67(5) of the TEC, as amended by the Treaty of Nice).

As provided by Art. 2, point 60, of the Draft Reform Treaty, the new Title IV of the TFEU (included in the Part Three of the Treaty, “Community Policies and Internal Actions”), with the heading “Area of Freedom, Security and Justice”, should keep the structure of the corresponding part of the Constitutional Treaty (Articles III-257 to III-277), and be divided in five chapters:

• Chapter 1: General provisions
• Chapter 2: Policies on border checks, asylum and immigration
• Chapter 3: Judicial cooperation in civil matters
• Chapter 4: Judicial cooperation in criminal matters
• Chapter 5: Police cooperation

Chapter 3, which deals with judicial cooperation in civil matters, should consist of a single provision, Art. 69d, reading:

CHAPTER 3 - JUDICIAL COOPERATION IN CIVIL MATTERS

Article 69d

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

4. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.
This proposal shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

The provision is almost identical to Art. III-269 of the Constitutional Treaty, with some minor adjustments and a major change: as regards the former, Art. 69d of the TFEU refers to “measures” adopted by the European Parliament and the Council, “acting in accordance with the ordinary legislative procedure” (the codecision procedure set out in Art. 251, as amended by Art. 2, point 242, of the Draft Reform Treaty), while in Art. III-269 reference was made to “European laws” and “Framework laws”, the legislative acts replacing regulations and directives in the Constitutional Treaty (see Art. I-33 ff.).

A major innovation is the power of veto granted to national Parliaments, pursuant to the second part of Art. 69d(4), as to the activation of the “passerelle” clause in respect of aspects of family law which may be subject of acts adopted by the ordinary legislative procedure, following a decision by the Council on a proposal from the Commission: in this respect, each national Parliament can make known its opposition to the “passerelle”. The provision should be read in conjunction with new Protocol n. 1 to the TFEU and TEU, on the role of national Parliaments in the European Union, which aims at a greater involvement of these institutions of the Member States in the activities of the EU.

A significant difference between the current text of Art. 65 TEC and the draft Art. 69d of the TFEU can be found in the link of the measures to be taken in the field of judicial cooperation in civil matters with the “proper functioning of the internal market”: while these measures, according to Art. 65 TEC, can be taken only “in so far as necessary for the proper functioning of the internal market”, Art. 69d TFEU (along with Art. III-269 of the Constitutional Treaty) is far less stringent in respect of this requirement, stating that they can be adopted “particularly when necessary for the proper functioning of the internal market”. On the issue, see a short article (in Spanish) by Prof. J.D. González Campos (Universidad Autónoma de Madrid), commenting Art. III-269 of the Constitutional Treaty, published in the Spanish electronic journal REEI - Revista Electrónica De Estudios Internacionales (n. 9/2005): “La Constitución Europea y el Derecho internacional privado comunitario: ¿un espacio europeo de justicia en materia civil complementario del mercado interior?”.

As regards the territorial scope of application of Title IV of the TFEU, there’s no substantial change to the opting-in system currently in force for UK and Ireland, pursuant to Protocol n. 4 to the TEC on the position of these States in respect of the area of freedom, security and justice: see point n. 19 of the sole article of Protocol n. 11 to the Draft Reform Treaty, amending various protocols to the TEC and the TEU.

The special regime set out by Protocol n. 5 to the TEC on the position of Denmark is also maintained, but it can be changed at any time, upon notification by Denmark to the other Member States, with a more flexible one, similar to UK and Ireland (see the new Annex to Protocol n. 5, added by point n. 20 of the sole article of Protocol n. 11 to the Draft Reform Treaty, referred to above). As a result, Denmark could have as well the possibility of opting-in to each specific measure adopted pursuant to Title IV, on a case-by-case basis.

As a last remark, it must be pointed out that the special conditions provided by current Art. 68 TEC as regards the jurisdiction of the European Court of Justice on Title IV and acts of the institutions based on it should be set aside by the Draft Reform Treaty: accordingly, the ordinary regime of Art. 234 TEC will apply.

The text of the new TFEU can be read in its entirety, as resulting from the amendments provided by the Draft Reform Treaty, in a French version edited by Marianne Dony (Université Libre de Bruxelles).

All the documents relating to the Intergovernmental Conference are available in a special section of the Council’s website.

(Thanks to Jean Quatremer, Coulisses de Bruxelles blog, for providing the link to the French consolidated text of the TFEU)

NIGEL PETER ALBON (T/A N A CARRIAGE CO) v (1) NAZA MOTOR TRADING SDN BHD (A company incorporated with limited liability in Malaysia) (2) TAN SRI DATO NASIMUDDIN AMIN [2007] EWHC 1879 (Ch). The Lawtel summary:

The applicant (Y) applied for an injunction restraining the respondent Malaysian company (N) from pursuing arbitration proceedings in Malaysia. Y alleged that the underlying agreement between the parties was an oral agreement made in England subject to English law. N alleged that there was a joint venture agreement signed by the parties in Malaysia governed by Malaysian law and containing a provision for arbitration in Malaysia. N denied concluding the English agreement as alleged by Y. Y contended that his signature on the joint venture agreement had been forged. Y had obtained permission to serve the proceedings out of the jurisdiction and an order for alternative service. N had applied unsuccessfully for a stay of proceedings in favour of arbitration proceedings in Malaysia, the court holding that the issue of the authenticity of the joint venture agreement should be determined by the English court rather than in the arbitration proceedings. Y had obtained on an application without notice an order restraining N from pursuing the arbitration proceedings in Malaysia but that injunction had been discharged as the sanction for failure by Y to comply with a court order. Y then made a further application for an injunction. Y contended that the court had jurisdiction to grant an anti-suit injunction and should grant an injunction barring N from taking any further steps in the arbitration proceedings pending the outcome of the English proceedings. N contended that the relief should be limited to barring N from inviting the arbitrators to rule on the authenticity of the joint venture agreement but should leave it to the arbitrators to decide whether to proceed with the arbitration in the interim without prejudice and subject to any determination by the English court on the issue of authenticity and accordingly of the arbitrators’ jurisdiction.

Lightman J. held that the grant of an anti-suit injunction in connection with a contract governed by English law was a claim made in respect of the latter contract within CPR r.6.20(5)(c), Youell v Kara Mara Shipping Co Ltd (2000) 2 Lloyd’s Rep 102 applied. If that was wrong, the court had jurisdiction to grant an anti-suit injunction on the basis of N’s application for a stay, Glencore International AG v Metro Trading International Inc (No3) (2002) EWCA Civ 528, (2002) 2 All ER (Comm) 1 considered. N was a foreign party brought into the jurisdiction by answering a claim within CPR r.6.20: it had not willingly submitted to the jurisdiction without reservation and it had not brought a counterclaim. But it had applied for a stay, and that application was ongoing and required the court to adjudicate on the authenticity of the joint venture agreement.

In those circumstances, the court had power to protect its processes in the course of and for the purposes of determining the claim to the stay, and that included where necessary the power to grant an injunction restraining N from taking steps within or outside the jurisdiction which were unconscionable and which might imperil the just and effective determination of the claim to the stay, Grupo Torras SA v Al-Sabah (No1) (1995) 1 Lloyd’s Rep 374 considered. The pleaded claim to an injunction fell within the gateway relied on and the necessary permission was granted to serve the amended claim form and amended particulars of claim in Malaysia. (2) The injunction sought was necessary to protect the interests of Y in the instant proceedings. For N to prosecute the arbitration proceedings or to allow the arbitrators to proceed with them pending determination whether N had forged Y’s signature on the joint venture agreement was to duplicate the instant proceedings. That was oppressive and unconscionable, Tonicstar Ltd (t/a Lloyds Syndicate 1861) v American Home Assurance Co (2004) EWHC 1234 (Comm), (2005) Lloyd’s Rep IR 32 considered. Both sets of proceedings would be concerned with exactly the same subject-matter, Elektrim SA v Vivendi Universal SA (2007) EWHC 571 (Comm), (2007) 2 Lloyd’s Rep 8 considered. The court declined to frame the injunction so as to leave it open to N to proceed with the arbitration inviting the arbitrators to determine what, if any, steps to take in the interim and without prejudice to the determination of authenticity by the English court.

View the full judgment on BAILII. Source: Lawtel.

Matthias Rößler’s article “The Court of Jurisdiction for Joint Parties in International Patent Disputes” published in the International Review of Industrial Property and Copyright Law (IIC) Number 4, 2007, pp. 380-400, discusses a recently much debated issue related to the enforcement of international patent disputes against multiple defendants. The abstract of the article states:

The paper discusses the development – and decline? – of the so-called “Spider-in-the-Web” rulings relating to the simplified filing of lawsuits against several cooperating companies in proceedings for the infringement of respective national patents in Europe. It shows the efforts and arguments that have been used in order to be able to apply Art. 6(1) of Council Regulation No. 44/2001 in cross-border patent disputes, and explains how the much-awaited Roche decision of the European Court of Justice brought clarity to the issue, yet not a globally viable solution.

The article is accessible on-line via the Beck-Online site.

Here are some of the previous references to the related issues posted here previously: Court Limits Extraterritoriality of Federal Patent Law, U.S. Federal Courts and Foreign Patents: Recent Decisions Affecting the Global Harmonization of Patent Law, CLIP papers on Intellectual Property in Brussels I and Rome I Regulations, Last Issue of Revue Critique de Droit International Privé, Patent Litigation in the EU - German Case Note on “GAT” and “Roche”, Is Cross-Border Relief in European Patent Litigation at an End?, Jurisdiction over Defences and Connected Claims, Jurisdiction over European Patent Disputes, and the European Payment Procedure Order.

Richard D. Freer has posted “American and European Approaches to Personal Jurisdiction Based Upon Internet Activity” on SSRN. The abstract reads:

 The law of personal jurisdiction determines what states or countries may enter a binding judgment against a civil defendant. Without personal jurisdiction over the defendant, a court is powerless to act.

While principles of personal jurisdiction are well established in the United States and the European Union (EU), these principles were developed before the widespread use of the Internet, and neither the Supreme Court nor the European Court of Justice has spoken on how the established principles apply in the context of the Internet.

American law requires that a defendant engage in purposeful availment of the forum where she is sued, so a defendant is subject to suit only in a forum with which she has established purposeful ties. In contrast, the EU grants personal jurisdiction where the injury occurred, regardless of whether the defendant purposefully availed itself of that place.

The difference in approach will prove to be most important in cases involving relatively passive Web site use. So if a defendant posts something on a Web site in State A, which is accessible around the world, and a plaintiff is hurt in some way by that posting in State B, may the plaintiff sue the defendant in State B? EU law should provide a positive answer, because their focus is on accessibility and where the harm occurs. In the United States, lower courts have reached inconsistent results, mainly because of the Supreme Court’s failure to resolve an important jurisdiction question in a 1987 case involving the “stream of commerce.” The Web site case is the modern technological iteration of the stream of commerce which the Court failed to resolve in 1987.

The article is available to download, for free, from here.

William J. Woodward Jr has posted “Constraining Opt-Outs: Shielding Local Law and Those it Protects from Adhesive Choice of Law Clauses” on SSRN (originally published in the Loyola of Los Angeles Law Review, Vol. 40, No. 1, 2006). Here’s the abstract:

Fifty years ago, the idea that parties could “choose” the law governing their contract was alien to the way most courts viewed their roles. Applicable law depended on complicated conflict of laws rules, administered by judges who would apply the law, not on party choice. Contemporary contracts, by contrast, nearly always specify the law that will govern them. Choice of law clauses reduce uncertainty, contribute to economic welfare and, in most instances, are no longer controversial. But when we move from negotiated contracts to adhesion and mass market contracts, choice of law clauses can become less than benign. A drafter will, of course, choose law that best suits its needs. But the law that best suits the drafter may well be less than ideal for the customer. Not surprisingly, recent cases reveal that mass market drafters often choose the law of a state that offers very limited protection for customers in their dealings with the drafter. Cases show, for example, that drafters choose the law of a state that recognizes adhesive class action waivers over the law of a state that does not. If such a choice of law provision is effective against customers whose law ordinarily protects them from such waivers, the drafter has effectively replaced the law their state crafted to protect its residents with the less-beneficial law the drafter chose. This, of course, raises policy questions and both courts and state legislatures have begun to address them. How can a state “protect” the law it has developed to benefit its residents without jeopardizing the commercial certainty that choice of law provisions provide? After providing an analytic framework for considering the complex issues raised by this amalgam of conflicts and contract law, we proceed to consider solutions both at the state and federal level.

Download the full article from here.

South African academics welcome the outcome of the decision of the Supreme Court of Appeal in Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2006 5 SA 393 (SCA) (which may be downloaded from www.supremecourtofappeal.gov.za). See Forsyth “’Mind the gap’ part 2: The South African Supreme Court of Appeal and characterisation” 2006 Journal of Private International Law 425-431 and Neels “Tweevoudige leemte: Bevrydende verjaring en die internasionale privaatreg” 2007 Tydskrif vir die Suid-Afrikaanse Reg [TSAR] / Journal of South African Law 178-188.

The case dealt with the scenario that the limitation rules of the lex causae (English law) were of a procedural nature according to both the lex causae and the lex fori, the prescription rules of the lex fori being of a substantive nature (according to the lex fori). The court applied the rules of the lex causae. The court a quo, the Transvaal High Court, applied the rules of the lex fori: see Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2005 3 SA 549 (T). In a similar case, the Cape High Court applied the lex causae: Society of Lloyd’s v Romahn 2006 4 SA 23 (C).

Forsyth welcomes the court’s adoption of Falconbridge’s via media characterisation technique but Neels is in favour of a simple rule that liberative prescription is a substantive issue governed by the lex causae, irrespective of how the lex causae classifies its own liberative prescription or limitation rules (including such characterisation in terms of the domestic lex causae and such classification in terms of the private international law of the lex causae).

The second issue for 2007 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM, Padova), one of Italy’s leading journals in private international law, has been recently published. All the articles in this issue are in Italian, and unfortunately just an English translation of the titles is available, but no abstract. Here’s the list:

ARTICLES

• A. Malatesta (University of Castellanza “Carlo Cattaneo” - LIUC), The State of Origin Principle and Conflict of Law Provisions after Directive 2006/123/EC on Services in the Internal Market: Is the Game Over? (Principio dello Stato di origine e norme di conflitto dopo la direttiva 2006/123/CE sui servizi nel mercato interno: una partita finita?);
• A. Bonomi (University of Lausanne), Some Issues on the Desirability of Erga Omnes Community Rules on Jurisdiction and Possible Solutions (Sull’opportunità e le possibili modalità di una regolamentazione comunitaria della competenza giurisdizionale applicabile erga omnes).

COMMENTS

• V. Colandrea (University of Naples “Federico II”), A Recent Arbitral Order of the International Chamber of Commerce on Cautio Iudicatum Solvi (La cautio iudicatum solvi alla luce di una recente ordinanza arbitrale della Camera di commercio internazionale);
• S. Crespi (University of Milan), Cross-Border Mergers before the EC Court of Justice: the Sevic Case (Le fusioni transfrontaliere davanti alla Corte di giustizia: il caso Sevic).

The RDIPP is not available online (for subscription information, refer to the publisher’s website, CEDAM).

An archive of the TOCs since 1998 is available on the ESSPER website (an online project for indexing articles of Italian journals and working papers in law and other social sciences, headed by the library of LIUC University of Castellanza).

Jonathan Harris has written an article in the new issue of the Jersey and Guernsey law Review entitled “Comity overcomes statutory resistance: In the Matter of the B Trust” (J.G.L.R. 2007, 11(2), 184-201). The article:

Comments on the Jersey Royal Court judgment in Re B Trust on the application of the Trusts (Amendment No.4) (Jersey) Law 2006 Art.9 to determine the enforceability of an English court order varying a Jersey trust. Considers whether Art.9(4), limiting the enforcement of foreign judgments against Jersey trusts, had sufficient legal basis. Assesses whether the English order should be given effect on the basis of comity.

Available only to those with a subscription to the Journal.

Nikiforos Sifakis has written an article in the latest issue (Vol. 13, Issue 2, 2007) of the Journal of International Maritime Law (current issue’s contents not yet on the website) entitled, “Anti-Suit Injunctions in the European Union: A Necessary Mechanism in Resolving Jurisdictional Conflicts?” (J.I.M.L. 2007, 13(2), 100-111). A small abstract is available:

Discusses the use of anti-suit injunctions in the EU. Considers the categories of cases in which anti-suit injunctions are granted in the UK, including exclusive court jurisdiction clauses, arbitration agreements and no choice of forum cases. Reviews the attitude of the European Court of Justice to anti-suit injunctions. Examines the reasons for antipathy towards anti-suit injunctions in Europe. Comments on the US system of anti-suit injunctions. Proposes a reform of Council Regulation 44/2001.

There is also a short casenote on the US Supreme Court decision in Sinochem Int’l Co., Ltd. v. Malaysia International Shipping Corp by Dennis L. Bryant (J.I.M.L. 2007, 13(2), 89-90) in the same issue.

The full article and casenote are only available to those with a subscription to the J.I.M.L.

Russell J. Weintraub has written a fairly critical note on the House of Lords judgment in Harding v Wealands in the current issue (Spring 2007) of the Texas International Law Journal, entitled, “Choice of Law for Quantification of Damages: A Judgment of the House of Lords Makes a Bad Rule Worse” (42 Tex. Int’l L.J. 311). The (fairly long) introduction reads thus:

In discussing choice of law for determining damages for torts, it is necessary to distinguish between “heads” of damages and “quantification” of damages under those heads. Heads of damages list the items for which a court or jury may award damages–medical expenses, lost wages, pain and suffering, punitive damages, and perhaps others. Quantification of damages measures the proper amount under each allowable head–how much for pain and suffering?

It is also necessary to focus on the meaning of “substantive” and “procedural” as those terms are used for choice of law. For “substantive” issues a court applies the forum’s choice-of-law rule to select the applicable law. “Procedural” in conflicts jargon is simply shorthand for saying that the forum’s rule applies.

“Procedural” is a term used in many contexts. It may refer to the rules that govern the workings of the forum’s courts–pleading, preserving objections for appeal, discovery. In the United States it may refer to a federal court’s freedom to apply a federal rule when the court has subject-matter jurisdiction because of the parties’ diversity of citizenship and is applying state, not federal, law to “substantive” issues. Or, as indicated above, a “procedural” issue might be one for which the forum court will not engage in its usual choice-of-law analysis, but will simply apply its own rule.

Justice Frankfurter said it as well as anyone: Matters of “substance” and matters of “procedure” are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, “substance” and “procedure” are the same key-words to very different problems. Neither “substance” nor “procedure” represents the same invariants. Each implies different variables depending upon the particular problem for which it is used.

Therefore, in deciding when to apply the “procedural” label in the context of choice of law, the question is: what justifies a forum in insisting on applying its local rule when under the forum’s choice-of-law rule the law of another jurisdiction applies to all “substantive” issues? The proper standard is one that balances the difficulty of finding and applying the foreign rule against the likelihood that applying the forum’s rule will affect the result in a manner that will induce forum shopping. Pleading, serving process, preserving objections for appeal, and similar issues relating to the day-to-day operation of courts are properly labeled “procedural” for choice-of-law purposes. Flouting those rules will affect the outcome, but an attorney is not likely to choose one forum over another to take advantage of such housekeeping provisions. Discovery rules require more balancing. A forum that permits massive pre-trial discovery is likely to attract plaintiffs. U.S.-style discovery is one of the reasons that American forums are magnets for the aggrieved and injured of the world. Nevertheless, it would be unthinkable to require U.S. judges and lawyers to learn and apply foreign discovery rules. Discovery is properly labeled “procedural” for choice-of-law purposes.

What about damages? Heads of damages, the items that a court or jury may include in computing the amount awarded to the plaintiff, are universally regarded as substantive. If the forum’s choice-of-law rule for torts points to a Mexican state, that Mexican state’s law determines the heads of damages. Quantification of damages under these heads, however, is regarded as “procedural” and forum standards apply.

The standard rule treating quantification of damages as procedural makes no sense. Quantification is the bottom line–what all the huffing and puffing at trial is about. The American devotion to jury trials in civil cases and the tendency of American juries to award “fabulous damages” are the primary reasons that foreign plaintiffs attempt to litigate their cases in U.S. courts. I have opposed this silliness, but the windmills show little sign of weakening. The United States Supreme Court has indicated the direction to take. Gasperini v. Center for Humanities, Inc. held that federal courts exercising diversity jurisdiction must apply “the law that gives rise to the claim for relief” to determine whether a jury verdict awards excessive damages. Other U.S. courts have not taken this hint that quantification of damages is too important for a “procedural” label.

One bit of sanity that survives in this choice-of-law madness is that courts regard statutory limits on recovery as “substantive.” They apply these limits when their choice-of-law rules select the tort law of the jurisdiction where the statute is in force. In Harding v. Wealands, however, the House of Lords, construing the Private International Law (Miscellaneous Provisions) Act 1995, has rejected even this limit on the “procedural” label when quantifying damages.

Available on Westlaw.