Conflict of Laws .net

On 20 September, Advocate General Kokott has delivered her opinion on the first reference for a preliminary ruling on the Brussels II bis Regulation (Regulation 2201/2003/EC) - Applicant C, C-435/06.

The background of the case is as follows: Applicant C. has lived with her two minor children and her husband in Sweden. In February 2005, the competent Swedish authority ordered - due to investigations which had been carried out in beforehand - the immediate taking into custody of both children as well as their placement in a foster family outside the home. These protective measures are regarded as public acts in Finland and Sweden. Before the decision of the acting Swedish authority was approved by the Länsrätt, C. had moved with her children to Finland. After the approval of the decision by the Länsrätt, the Swedish police requested administrative assistance from the Finnish police with regard to the enforcement of the Swedish decision. Subsequently, the Finnish police ordered the immediate taking into custody of the children as well as their committal to the Swedish social authorities. After her action against the acts taken by the Finnish authorities at the Hallinto-oikeus had failed, the mother, C., appealed to the highest administrative court in Finland, the Korkein Hallinto-oikeus, and claimed first to set aside the decision of the Hallinto-oikeus, second to revoke the order made by the police and third to bring back the children to Finland. The Korkein Hallinto-oikeus, however, had doubts whether the Brussels II bis Regulation was applicable. This was decisive since in case of the applicability of the Regulation, Finnish civil - and not administrative - courts would be competent in this case. Further, rules existing within the framework of an cooperation among the administrative authorities in the Nordic States would be superseded by the Regulation. Consequently, the Korkein Hallinto-oikeus referred with decision of 13 October 2006 the following questions to the ECJ for a preliminary ruling:

a) Does Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (the Brussels 11a Regulation) ²apply, in a case such as the present, to the enforcement of a public law decision in connection with child welfare, relating to the immediate taking into custody of a child and his or her placement in a foster family outside the home, taken as a single decision, in its entirety;

(b) or solely to that part of the decision relating to placement outside the home in a foster family, having regard to the provision in Article 1(2)(d) of the regulation;

(c) and, in the latter case, is the Brussels IIa Regulation applicable to a decision on placement contained in one on taking into custody, even if the decision on custody itself, on which the placement decision is dependent, is subject to legislation, based on the mutual recognition and enforcement of judgments and administrative decisions, that has been harmonised in cooperation between the Member States concerned? If the answer to

Question 1(a) is in the affirmative, is it possible, given that the Regulation takes no account of the legislation harmonised by the Nordic Council on the recognition and enforcement of public law decisions on custody, as described above, but solely of a corresponding private law convention, nevertheless to apply this harmonised legislation based on the direct recognition and enforcement of administrative decisions as a form of cooperation between administrative authorities to the taking into custody of a child?

If the answer to Question 1(a) is in the affirmative and that to Question 2 is in the negative, does the Brussels IIa Regulation apply temporally to a case, taking account of Articles 72 and 64(2) of the regulation and the abovementioned harmonised Nordic legislation on public law decisions on custody, if in Sweden the administrative authorities took their decision both on immediate taking into custody and on placement with a family on 23.2.2005 and submitted their decision on immediate custody to the administrative court for confirmation on 25.2.2005, and that court accordingly confirmed the decision on 3.3.2005?

Of particular interest is the first question referred to the ECJ: With this question, the Finnish referring court basically aims to know whether a decision ordering the immediate taking into custody of a child and his or her placement outside the home falls within the scope of application of Brussels II bis. To answer this question, the Advocate General examines two questions: First, can the immediate taking into custody of a child and his or her placement outside home be qualified as measures concerning parental responsibility in terms of the Regulation? And secondly, do they constitute civil matters?

The first of these questions can be answered easily with regard to the placement of a child in a foster family or in institutional care, since this measure is explicitly mentioned in Art. 1 (2) (d) Brussels II bis. In contrast to that, the immediate taking into custody of a child is not referred to in Art. 1 (2) of the Regulation. However, the Advocate General argues - in accordance with several Member States – that the immediate taking into custody of a child and his or her placement in a foster family or in institutional care were connected very strongly (para. 28). As Art. 1 (1) (b) Brussels II bis showed, matters of parental responsibility included not only measures regarding the termination or delegation of parental responsibility, but also measures concerning the excercise of parental responsiblity. Even though the parents did not lose their custody as such in case of an immediate taking into custody or in case of the placement of the child outside home, they could not exercise essential parts of it anymore (para. 30). Consequently, also the immediate taking into custody of a child constitutes, according to the Advocate General, a matter of parental responsibility.

Of particular interest are the Advocate General’s remarks with regard to the second problem - namely the question whether these kind of measures can be regarded as civil matters. Regarding this question, the Swedish government argued, protective measures, such as the immediate taking into custody and the placement of a child in a foster family, did not constitute “civil matters” since they were ordered by public authorities acting in the exercise of their public powers (para. 34). Thus, the Swedish government applied the principles of delimitation which have been elaborated by the ECJ with regard to the Brussels Convention - most recently in Lechouritou – also with regard to Brussels II bis. This point of view is not shared by the Advocate General. She argues that the aims and the history of the Brussels Convention – with regard to which the delimitation between public and civil matters has been developed – did not necessarily correspond with those of the Brussels II bis Regulation. Consequently, the term of “civil matters” had to be interpreted independently with regard to the Brussels II bis Regulation (para. 38). Here the Advocate General argues that the restriction or termination of parental responsibility (Art. 1 (1) (b) Brussels II bis) are usually ordered by public authorities. Further, the measures explictly mentioned in Art. 1 (2) Brussels II bis constituted in general public protective measures. This enumeration would not make any sense, if one regarded those measures not as civil matters because a private party (parents) and a public authority are concerned (paras. 40, 41). Further, also recital No. 5 („[…] this Regulation covers all decisions on parental responsibility, including measures for the protection of the child“ […]”) showed that the term of “civil matters” had to be interpreted in an extensive way (para. 42). This was also the case if the measure in question is regarded as a public matter in one Member State (para. 44). Consequently, the Advocate General regards decisions on the immediate taking into custody of a child and the placement of a child in a foster family as civil matters which concern parental responsibility and fall therefore within the scope of the Brussels II bis Regulation (para. 53).

With regard to the second question referred to the ECJ, the Advocate General holds that Finland and Sweden are – insofar as Brussels II bis is applicable – restrained from applying derogating national rules (para. 60).

The Opinion is not available in English yet, but can be found in several languages, inter alia in Spanish, German, Italian and French on the ECJ’s website.

See also our older post regarding the reference for a preliminary ruling which can be found here.

Further to the post in May this year regarding P St J Smart’s article which contended that an Australian court should not enforce a “judgment on a judgment”, Ian Molloy has written a follow-up article in the latest Australian Law Journal (2007 vol 81, p 760) highlighting two cases which adopt this view.  The cases are the Supreme Court of New South Wales decision in Taylor v McGiffen (unreported, Supreme Court of New South Wales, 15 July 1985) and the National Court of Justice of Papua New Guinea decision in WorkCover Authority (NSW) v Placer (PNG) Exploration Ltd [2006] PGNC 47.  Ian Molloy’s article is available on the internet to Lawbook Online subscribers.

A new yearbook devoted to private international law has been recently published in Romania: Revista de Drept International Privat şi Drept Privat Comparat (Journal of Private International Law and Private Comparative Law). Published by Sfera Juridica, the journal is edited by Dan Andrei Popescu (Babeş-Bolyai University, Cluj-Napoca) and has an editorial advisory board of both Romanian and foreign scholars.

The first issue (2006) contains a large number of articles and comments, dealing with private international law, comparative law and arbitration. While all the articles are published in Romanian, a translation is provided for most of them (in English, French or German). Here’s a short extract of the table of contents (only translated titles are listed: for the full TOC, and the original Romanian titles, please refer to this .pdf file - hosted by the Àrea de Dret Internacional Privat blog):

Viviana Onaca, Entraide judiciaire en matière civile et commerciale – le présent et les perspectives;

Christian von Bar, Ein Raum der Sicherheit, der Freiheit und des Rechts – auch des Privatrechts?;

Private International Law

Maurice N. Andem, Jurisdictional Problems in Private International Law: A Brief Survey of International Co-operation in Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters;

Bertrand Ancel, Horatia Muir Watt, L’intérêt supérieur de l’enfant dans le concert des juridictions : le Règlement Bruxelles II bis;

Andrea Bonomi, The Role of Internationally Mandatory Rules in an European Private International Law System;

Bernard Dutoit, Le droit des contrats face à la globalisation des relations humaines;

Marc Fallon, Lignes de force de l’interaction du droit international privé et du droit de l’Union européenne;

David Hayton, Trusts in EU Private International Law;

Alina Oprea, La Convention européenne des droits de l’homme et l’application des normes étrangères en droit international privé;

International Arbitration

Caixia Yang, Évolution de l’arbitrage commercial international en droit chinois et situation actuelle;

Comparative Private Law

Abbas Karimi, Les modifications du code français de la consommation par la transposition de la directive européenne 93-13 du 5 avril 1993;

Laura Tofana, Mircea Dan Bocsan, Aperçu sur le cadre juridique de l’adoption internationale en Roumanie – une analyse critique de la loi no.273/2004;

Paul Vasilescu, Entre la réforme et les reliques civiles – l’insolite d’un vendeur impayé;

Book Reviews

Stéphanie Francq, L’applicabilité du droit communautaire dérivé au regard des méthodes du droit international privé (Alina Oprea);

Bernard Dutoit, Le droit international privé ou le respect de l’altérité (Alina Oprea);

In Memoriam Gerhard Kegel (1912 – 2006), Heinz-Peter Mansel.

(Many thanks to Raluca Ionescu - Universidad Autónoma de Barcelona and Àrea de Dret Internacional Privat blog - for the tip-off)

The European Max-Planck-Group for Conflict of Laws in Intellectual Property, known also as CLIP, has just recently made its website accessible to the public. Under the http://www.cl-ip.eu one may now find the references to the documents they produced and the two pdf. files previously posted here, list of the members with links to their biographical data, events announcements, intranet page accessible only by the members, and links to two parallel projects of the Université Libre de Bruxelles and the American Law Institute.

The novelty on this website concerns the announced conference “Intellectual Property and Private International Law” to be held on 4 and 5 April 2008 at University of Bayreuth (Germany). The program is not available yet but this blog will try to keep its readers informed of the news in this field.

Questions and comments on CLIP and their project are to be addressed to:

Professor Dr. Annette Kur
Max Planck Institute for Intellectual Property,
Competition and Tax Law
Marstallplatz 1
80539 Munich/Germany
Phone: + 49 (89) 24 24 6 404
Fax: + 49 (89) 24 24 6 501
Email: annette.kur@ip.mpg.de

A divided panel of the Second Circuit held last week that federal common law, and not Brazilian law, would be applied to a contract for the shipment of goods, notwithstanding the fact that the contract was negotiated, executed, and performed in Brazil, by a Brazilian company and a corporation that regularly conducts business in Brazil, concerning goods that were at all times located in Brazil. Dispositive of the choice of law inquiry was the fact that federal common law would enforce the contract provisions, while Brazilian law would not.

In Eli Lilly Do Brasil, Ltda. v. Federal Express Corp., No. 06-cv-0530 (2d Cir., Sept. 11, 2007), Eli Lilly sued Federal Express in New York for the the value of pharmaceuticals that were stolen in transit between plaintiff’s factory in Brazil to Japan. Defendant raised a limitation on liability contained in the waybill for shipment. On cross motions for summary judgment, Defendant sought to enforce the limitation on liability under federal common law, and Plaintiff sought to apply Brazilian law, asserting that it would invalidate the clause without proof of Defendant’s gross negligence. The District Court applied federal common law, and granted Defendant’s motion.

The Second Circuit reviewed the choice of law decision de novo and, like the court below, “consult[ed] the Restatement (Second) of Conflict Laws” for guidance. Under the Section 6 factors, made relevant through section 188, the balance clearly tilted in favor of Brazil. However:

“[the] recognition that Brazil’s interest . . . is greater than the United States’ cannot be the end of our inquiry or determinative of its conclusion. . . . Which state is most interested under § 188 is a different question from which state has the more significant relationship with the parties and the contract for purposes of [the final choice of law]. . . . In this case, even taking account of Brazil’s superior § 188 contacts, two of the § 6 factors emerge as determinative of United States venue: (1) the relevant policies of other interested states and the relative interest of those states in the determination of the particular issue in dispute, . . . and (2) protection of the parties’ justified expectations. Once Lilly-for whatever reason-asked a United States court to consider its contract, it invited application of the well-settled ‘presumption in favor of applying that law tending toward the validation of the alleged contract.’ . . . This presumption is consistent with the general rule of contract construction that ‘presumes the legality and enforceability of contracts.’ The paramount importance of enforcing freely undertaken contractual obligations, especially in commercial litigation involving sophisticated parties, was obvious to the District Court and is obvious to us. The Restatement expressly provides that the justified expectation of enforceability generally predominates over other factors tending to point to the application of a foreign law inconsistent with such expectation.”

Under Federal common law, unlike Brazilian law, the limitation on the waybill is valid. The Second Circuit upheld the application of the former, and affirmed the decision below.

Judge Meskill filed a dissent. He generally opined tha “[t]he presumption in favor of applying the law that tends to validate a contract is [only] important where the alternative is no contract at all.” Because there was no allegation that the entire waybill would be “completely invalidated” under Brazilian law, Judge Meskill would have vacated the summary judgment and remanded for a decision under Brazilian law. He also acknowledged that “while the federal common law’s presumption in favor of applying the law that tends to validate contracts might mean that the United States has a general interest in validating contracts, the United States still does not have a ’significant’ or ‘close’ relationship with this contract.” Indeed, the United States’ interest in enforcing contracts arises in any choice of law contract case filed in its courts. Therefore, under § 197 of the Restatement, “Brazil remains as the default jurisdiction whose laws govern this contract of transportation regardless of whether the liability limitation is valid under Brazilian law.”

A link to the decision can be found here.

A substantial proportion of the people receive our content via email or RSS, rather than visiting the site directly, and thus may not have noticed a new banner at the top of the screen (decorated in shades of yellow and orange) that entitles readers of this site to a 10% discount when subscribing to the Journal of Private International Law.

Prospective subscribers can view the contents (with abstracts for each article) of the last three volumes on the Hart website. Be sure, however, to use the order form available from this website in order to receive your 10% off.

The one-day workshop titled “Conflict of Laws and Laws of Conflict in Europe and Beyond - Patterns of Supranational and Transnational Juridification” is hosted by the Law Department of the European University Institute and organized by Dr. Rainer Nickel of the University of Frankfurt am Main. It receives support under the FP 6, and makes part of the RECON project which seeks to clarify whether democracy is possible under conditions of pluralism, diversity and complex multilevel governance.

Although, in a view of the topics, this worshop is not a typical conflict of laws event, it might be of interest for the users of this blog too. The workshop website is accessible here and the program containing the list of speakers and topics as well as members of the discussion panel and some other participants is available here.

The workshop is scheduled for 21 September 2007 and will take place in a beautiful venue in of the Florence European University Institute, Conference Room, Villa La Fonte, San Domenico di Fiesole. The registration is possible with Marlies Becker (marlies.becker@eui.eu).

Antonio Nicita (Professor of Economic Policy at University of Siena) and Matteo Winkler (LLM, Yale Law School; Ph.D., Bocconi University) have written an interesting paper on the economic analysis of the conflict of laws rules concerning transnational accidents, in particular domestic and supranational rules on tort liability. A preliminary version of the paper (”The Cost of Transnational Accidents: Evolving Conflict Rules on Torts“) was presented on September 13th at the annual conference of the European Association of Law & Economics (EALE), held in Copenhagen.

An abstract has been kindly provided by the authors:

The paper is divided into two parts. In the first part, the authors show the main conflict rules concerning torts at the domestic level: loci commissi delicti (place of accident), lex loci laesionis (place of injury), forum shopping and forum non conveniens, parties’ freedom of choice (before and after the accident), victim’s freedom of choice. Then, the authors describe the problems pertaining to each of these rules. In the second part, they analyse two cases, Bhopal and Amoco Cadiz, and conclude that when State courts are called to settle disputes concerning transnational accidents, they tend to protect their own community from the accident’s consequences, if negative, or alternatively, to discharge the accident’s negative externalities to other States’ community. Both approaches raise problems from the standpoint of externalities regulation: they lead either to underregulation or overregulation.

In particular, Nicita and Winkler maintain that when, like in Bhopal, State courts strictly enforce the lex loci rule, they might both favor the flux of investment towards developing countries - although the damages in favor of these countries’ victims are likely to be undercompensated, or protect the delocalized activities of multinational enterprises, while when courts refer to the lex loci laesionis rule, they are likely to regulate the transnational activity and therefore to increase the costs of compliance borne by multinational enterprises.

As a third case study, finally, the authors examine the EC Regulation on the law applicable to torts, Rome II. According to this Regulation, they point out that there are some underlying policies, that attempt to supersede the policies enforcement by State courts.

The paper is available on the EALE Conference’s website, and will be revised by the authors according to the observations coming from the conference’s public.

On the economic analysis of conflict of laws, see also some of our previous posts at the following links: 1, 2, 3, 4, 5, 6, 7.

In the first meeting held by the European Parliament’s JURI Committee after the summer break (10/11 September), the Rapporteur for Rome I, Cristian Dumitrescu, presented a new set of 43 compromise amendments to the initial Commission’s Proposal, to be discussed within the Committee in order to adopt a final text of the Report for the Parliament’s plenary session. While taking into account the previous works of the JURI Committee on Rome I (see our post here), the Rapporteur drafted these new amendments in view of the final text of the Rome II Regulation and the current discussion on Rome I in the Council (see below). As he states in the justification to amendment n. 2,

[t]he proposed compromise amendments set out in this paper have several aims. First, they are intended to bring the Regulation more closely into line with Rome II as adopted. Secondly, they seek to introduce changes already accepted in the Council working group and hence aim at reaching an agreement with the Council. Thirdly, they propose solutions in areas where the Council has not yet been able to reach agreement. Fourthly, they are designed to facilitate ecommerce by positing solutions lying outside the area of private international law to difficulties which conflict-of-laws rules cannot resolve in themselves. Lastly, the amendments are intended to bring into the public domain, and hence make available for public debate in a democratic assembly, technical changes discussed so far only within the Council. The rapporteur has presented them in order to foster debate within the Committee and negotiations with the Council.

As regards the conflict rules, see compromise amendments n. 21 (Art. 3), n. 22 (Art. 4), n. 23 (new Art. 4a on contracts of carriage), n. 26 (a new, complex Art. 5a dealing with insurance contracts) and n. 27 (Art. 6 on individual employment contracts). Art. 7 on contracts concluded by an agent is deleted (see amendment n. 28).

Consumer contracts (Art. 5) are dealt with in the new package only as regards the scope of the exclusions (Art. 5(3): see amendments nn. 24 and 25), but the whole provision was redrafted by the Rapporteur in a separate compromise amendment presented in June (compromise amendment n. 1: see our post here). However, the Rapporteur remains quite sceptical as regards the effectiveness of the protection afforded by a conflict rule, and he states in new Recital 10a (compromise amendment n. 14) that

[w]ith […] reference to consumer contracts, recourse to the courts must be regarded as the last resort. Legal proceedings, especially where foreign law has to be applied, are expensive and slow. The introduction of a mechanism to deal with small claims in cross-border cases is a step forward. However, the protection afforded to consumers by conflict-of-laws provisions is largely illusory in view of the small value of most consumer claims and the cost and time consumed by bringing court proceedings. It is therefore considered that, particularly as regards electronic commerce, the conflicts rule should be backed up by easier and more widespread availability of appropriate online alternative dispute resolution (ADR) systems. The Member States are encouraged to promote such systems, in particular mediation complying with Directive …/…, and to cooperate with the Commission in promoting them.

As it was the case for Rome II, some controversial issues have been moved by the Rapporteur in the Recitals accompanying the Regulation: see for instance compromise amendments nn. 5 and 6 (new Recitals 7a and 7b) on the choice of non-State bodies of law as the applicable law, and compromise amendment n. 19 (Recital n. 15) on the relationship between the Regulation and Community law.

On the Council’s side, a complete text of the Rome I Regulation has been recently made publicly available in the Register (doc. n. 11150/07 of 25 June 2007). It was drafted in June by the outcoming German Presidency and the Portuguese Presidency on the basis of the meetings of the Committee on Civil Law Matters during the first semester 2007 and the comments made by delegations.

It contains the text of the compromise package agreed by the Council in April 2007 (doc. n. 8022/07 ADD 1 REV 1: see our post here) and a proposed wording for the provisions that were left over. The latter include Art. 4a on contracts of carriage - three options are proposed as regards carriage of passengers -, Art. 5 on consumer contracts, Art. 5a dealing with insurance contracts, Art. 8 on overriding mandatory provisions, Art. 13 on voluntary assignment and contractual subrogation.

For better readability, the compromise package is presented in italics; a number of footnotes completes the text, highlighting doubts raised by the delegations and provisions which need further discussion or clarification.

The adoption of the Report on the Rome I Proposal is expected in the EP’s JURI Committee in one of the forthcoming meetings. According to current forecasts (subject to frequent changes: please refer to the Rome I OEIL page), the vote at first reading in the Parliament’s plenary session is scheduled on 28 November 2007; a political agreement on common position is expected in the Council in the last JHA session under the Portuguese Presidency, on 6 December 2007.

From the conference website: The seminar will focus on significant developments since 2005, when the last ERA seminar was held at the Office for Harmonisation in the Internal Market (OHIM).

In the field of designs, the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs enabling the international registration of community designs and to which the European Union has just acceded will be presented and its consequences discussed. Concerning spare parts, progress on discussions relating to the proposal for a Directive amending Directive 98/71/EC on the legal protection of designs (COM(2004)582) will be analysed.

Concerning trademarks, the seminar will focus on conflicts of laws, in particular within the framework of the Internet. The implications of the Rome II proposal on the law applicable to non-contractual obligations will form an integral part of the discussions.

At a jurisprudential level, the most significant community case law on invalidity decisions concerning trademarks and designs will be presented.

The last part of the seminar will be dedicated to the mechanisms aiming to reinforce intellectual property rights. The conference will provide an overview of the transposition of the Enforcement Directive 2004/48/EC. The implications of the proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (COM(2005)276 final) will also be discussed. Experts from OHIM, academics and practitioners will be invited to give their point of view.

Target audience: Lawyers in private practice and in-house counsel, civil servants of national and European authorities responsible for trademarks and designs, judges, academics

This conference to be held in Alicante, 22-23 November 2007, is organised by ERA. The conference programme can be downloaded from the conference website.

From the conference website: In 2004 the Hague Programme set the direction for the EU in the second phase of its development of a common policy on asylum, migration and borders. Two years later, in June 2006, with a comprehensive package of Communications, the European Commission took stock of the progress made and assessed the level of implementation of the Hague Programme at EU and national level. In presenting this package of measures, the Commission wished to stimulate and structure the discussion with the Member States and the other Institutions on new policy initiatives and on possible ways to improve the functioning of Freedom, Security and Justice policies.

This forum will look at the challenges presented by these measures in the field of Asylum and Immigration. It will discuss the perceived need for the EU to manage migration flows more effectively with special emphasis on the global approach to migration. The continuing attempts to set up a common asylum policy acceptable to all EU member states will also be discussed. Furthermore, the role and powers of the Frontex agency in combating illegal migration will be scrutinised with reference to specific problems concerning the management of operational cooperation at national level. Whilst looking mainly to the future, the seminar will also review from a legal perspective the achievements of EU immigration and asylum policy since Tampere in 1999. The present forum follows the pattern of the “First Forum on Asylum and Immigration: Challenges of the Hague Programme” in Rome on 25-26 November 2005, which was co-ordinated by ERA and the Italian Ministry of the Interior.

Target audience: Asylum and immigration lawyers and judges, ministry officials, academics, NGO’s.

This conference to be held in Milan, 9-10 November 2007, is organised by ERA in cooperation with Prof. Bruno Nascimbene, University of Milan. The conference programme can be downloaded from the conference website.

From the conference website: The European Traffic Law Days have established themselves as a forum for professional training and the exchange of experience between traffic law experts. The congress will provide experts in liability and insurance law with an opportunity to obtain a comprehensive overview of current developments in European traffic law relevant to daily practice.

The main emphasis of this year’s event will be on the development of case law in the European Union on punitive damages. A working group will be set up, initially to determin the status quo, on the basis of which the fundamental problems involved in punitive damages will be discussed. Further topics are: Experience of the implementation of the fifth Directive; Elements of a sixth Directive (discussion on the progress achieved with the suggestions made during Trier VII); Minor accidents (improved enforcement of low-value claims involving traffic accidents abroad); The statute of limitations (European Parliament initiative); Rome II, the Regulation that governs the law applicable to traffic accidents abroad; The introduction of the recording of accident data Europe-wide; Simpler registration of motor vehicles abroad. Finally, current developments in European law and initiatives and developments in the harmonisation of European civil law will be discussed.

Target audience: All persons professionally involved in traffic law.

This conference to be held in Trier, 17-19 October 2007, is organised by ERA in cooperation with the Institute for European Traffic Law. This event will take place for the eighth time and will continue to be organised on an annual basis. The conference programme can be downloaded from the conference website.

From the conference website: Lawyers are required to deal ever more with legal questions arising from cross-border family and parental responsibility cases. The following topics will be discussed:
Parental responsibilities: The application of the Brussels II Regulation in judicial practice in the Member States; Hague Convention on protection of children and Brussels II bis; Family mediation; Opportunities and limitations of cross-border mediation in family matters.
Cross-border supervision: Hague Convention on international protection of adults. Current developments in the member states: Divorce and its consequences; Descent and custody; Recognition of formalised same-sex relationships in Europe; Current issues in Europe; New legal framework for marriage issues in the EU; Regulation of matrimonial property regime on the Community level; Developments in European law of succession.

Target audience: Lawyers, especially those specialising in family law and law of succession, notaries, judges, academics.

This conference to be held in Trier, 1-2 October 2007, is organised by ERA. The conference programme can be downloaded from the conference website.

From the conference website: The conference will be devoted to the practical analysis of certain Community legislative instruments and initiatives of great importance for notary practice, such as: The “Brussels I” Regulation on the jurisdiction, recognition and enforcement of judgements in civil and commercial matters; The Regulation creating a European Enforcement Order for Uncontested Claims; The European Judicial Network in Civil and Commercial Matters; The Network of the Notariats of the European Union; The Regulation on the service of documents and the Regulation on the cross-border taking of evidence in Europe; The proposed “Rome I Regulation” on the law applicable to contractual obligations; Mediation in civil and commercial matters and the role of civil law notaries. Target audience: Civil law notaries of all EU Member States.

This conference to be held in Trier, 12-13 November 2007, is organised by ERA in cooperation with in cooperation with the Council of the Notariats of the European Union (CNUE). The conference programme can be downloaded from the conference website.

From the conference website: This workshop will provide an in-depth examination of financing based on receivables - both assignments and transfers for security, a subject of increasing importance in Europe and around the world. The case-study method will be used to highlight differences and similarities among more than half a dozen European countries. Leading writers in the field, prominent academics and experienced practitioners will present specific national solutions to domestic and cross-border assignment of receivables encountered in current commercial practice. Important current developments in relevant private international law issues, including the issue of assignment in the context of the future Rome I Regulation, will be discussed. Participants at this interactive workshop from all over Europe will be invited to raise questions, share their experience and provide information about the law of additional jurisdictions. This programme will assist market participants and their counsel to understand better cross-border security over receivables and relevant private international law rules of their own and other countries and assist those involved in national, EU and global law reform efforts. The cases will be devised especially for this workshop by Eva-Maria Kieninger and Harry C. Sigman.

This conference to be held in Trier, 25-26 October 2007, is organised by ERA in cooperation with Eva-Maria Kieninger, Würzburg and Harry C. Sigman, Los Angeles. The conference programme can be downloaded from the conference website.

The Court of Appeal for Ontario has released Red Seal Tours Inc. v. Occidental Hotels Management B.V. (available here).  The decision is of note for three reasons.

• The court reverses the motions judge’s decision not to grant a stay of proceedings.  When these sort of conflicting decisions happen on the same facts, it can raise concerns about the way these motions prolong preliminary disputes in litigation.
• The court treats a contract that did not contain a jurisdiction clause as “part and parcel” of a series of related contracts that did contain such a clause (in favour of Aruba).  The motions judge gave no effect to the clause, but the appeal court gives it central and crucial weight.
• The court’s order is to “permanently stay” the proceedings.  For more on this language see C. Dusten and S.G.A. Pitel, “The Right Answer to Ontario’s Jurisdictional Questions: Dismiss, Stay or Set Service Aside” (2005) 30 Advocates’ Quarterly 297 at 308.  I have troubles with the concept of a permanent stay, since by its nature a stay has a temporary quality (unlike a dismissal).  I wonder if a “permanent stay” here could be seen to signal a move towards the notion of dismissing cases on the basis of forum non conveniens recently seen in the United States Supreme Court in Sinochem.

Edward Elgar Publishing has published an edited collection of works on “Economics of Conflict of Laws“, edited by Erin A. O’Hara (Vanderbilt). Here’s the blurb:

For this important collection, Professor O’Hara has selected some cutting-edge previously-published work on the application of economic analysis to the conflict of laws. This authoritative two-volume set offers theoretical and empirical insights into existing approaches to choice of law and the effects of conflicting choice-of-law approaches on judicial decision-making. It investigates several competing proposals for more efficient choice-of-law systems, including a special section on torts. Further topics include evaluations of contract clauses (including choice-of-law and choice-of-forum provisions), and the effects of party choice on jurisdictional competition by states to provide more desirable laws, with examples relating to securities regulation, bankruptcy rules, law firm rules of ethics, same-sex marriage laws and asset protection trust law. A game theoretic analysis of interstate judgment recognition is also included.

The work includes 25 articles, dating from 1963 to 2003. Contributors include: W. Baxter, A. Guzman, B. Hay, L. Kramer, R. Rasmussen, L.E. Ribstein, R. Romano, P. Stephan, S.E. Sterk and M. Whinco.

ISBN: 978 1 84720 076. Price: £275.00, but you can purchase it from the Edward Elgar website for the discounted price of £247.50.

Recently, the latest issue of the German legal journal Praxis des Internationalen Privat- und Verfahrensrecht (”IPRax“) has been published.

I.) Annotation on Color Drack

The issue contains inter alia an annotation by Peter Mankowski (Hamburg) on the ECJ’s judgment in Color Drack GmbH./.Lexx International Vertriebs GmbH of 3 May 2007 where the Court had to deal with the question of jurisdiction in cases where there are several places of delivery within a single Member State.

Mankowski outlines in his annotation six potential solutions, pointing out, however, that none of them is - due to the complexity of the issue - completely convincing. This is, according to Mankowski, also true with regard to the approach adopted by the ECJ, which has developed a two-stage solution for identifying the competent court in cases where there are several places of delivery within a single Member State: According to the ECJ, “the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice.”

Mankowski examines this solution critically and points out that determining the main focus of the deliveries, as advocated by the Court, implied uncertainty which contravened the aims of the Regulation. Also the subsidiary solution of the Court which shall be applied in cases where no main focus can be ascertained, the claimant’s choice, is regarded sceptically since the Court’s premise, in these cases all places of (part) deliveries were equivalent, could not be agreed with.

Due to the uncertainties which are attended with determining the main focus, Mankowski asks for further concretizing criteria and suggests to proceed - following choice of law rules which try to designate the law with the closest link to the case - from the assumption that it is decisive where the deliverer’s place of business which is in charge of the contract is situated. In cases where nothing is delivered at this place, Art. 5 (1) lit. c Brussels I Regulation referred to Art. 5 (1) lit. a Brussels I Regulation and consequently to national law.

See regarding this case also our previous posts on the Advocate General´s opinion, the judgment and further annotations.

II.) Contents

In addition to this annotation the new issue of the “IPRax” contains inter alia the following contributions:

• Article by Axel Halfmeier (Bremen) on the action raising an objection to the judgment claim (”Die Vollstreckungsgegenklage im Recht der internationalen Zuständigkeit”)
• Wolf-Georg Ringe (Oxford) examines the impact of the ECJ’s jurisprudence regarding companies’ freedom of establishment on international civil procedure law (”Überseering im Verfahrensrecht - Zu den Auswirkungen der EuGH-Rechtsprechung zur Niederlassungsfreiheit von Gesellschaften auf das Internationale Zivilprozessrecht”)
• Annotation by Herbert Roth (Regensburg) on a decision of the Court of Appeal Düsseldorf concerning the question of whether the debtor’s identity has to be clarified - in case of uncertainties - already during the proceedings for a declaration of enforceability (”Der Streit um die Schuldneridentität im Verfahren der Vollstreckbarerklärung nach Art. 41, 43 EuGVVO”)
• Annotation by Urs Peter Gruber (Halle) on a decision of the Court of Appeal Bamberg dealing with the question of whether proccedings for a declaration of enforceablilty according to Artt. 51, 31 et seq. Brussels Convention are suspended in case insolvency proceedings are opened with regard to the respondent’s assets abroad (”Inländisches Vollstreckbarerklärungsverfahren und Auslandskonkurs”)
• Annotion by Stefan Kröll (Cologne) on two decisions of the Court of Appeal Karlsruhe regarding the question of whether procedural irregularities which have allegedly occured at the place of arbitration can be raised in the proceedings for a declaration of enforceability (”Die Präklusion von Versagungsgründen bei der Vollstreckbarerklärung ausländischer Schiedssprüche”)
• Annotion by Marcus Mack (Heidelberg) on the U.S. Supreme Court decision in Sinochem (”Forum Non Conveniens - Abweisung ohne Zuständigkeitsprüfung”)
• Article by Stephan Balthasar (Munich) on the recognition and enforcement of German judgments on the Channel Islands (”Anerkennung und Vollstreckung deutscher Urteile nach common law auf den Kanalinseln und Verbürgung der Gegenseitigkeit”)

The full contents as well as news in private international law can be found at the journal’s website.

Members of the American Law Institute (ALI) approved on their annual meeting on May 15, 2007 principles on jurisdiction, recognition of judgments, and applicable law in transnational intellectual property civil disputes (a legal area believed to need reform). The project is the result of several years of intense cooperation, examination and analysis between a broad council, reporters, advisers, liaisons and consultants under the support of ALI. This highly competent group scholarship is made available here. Highly recommendable!

Readers of this site might be interesting in the following two articles:

Antonin I. Pribetic, “Thinking Globally, Acting Locally: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada” in Annual Review of Civil Litigation 2006, T. Archibald and R. Echlin, eds (Toronto: Thomson-Carswell, 2007) at 141-199 (available on SSRN here).   
 
Antonin I. Pribetic, “Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? The United States of America v. Shield Development Co.” (2007) 7(1) Canadian International Lawyer 8-23, 2007 (available on SSRN here). 
 

There are a few private international law pieces forthcoming in English journals over the next month or so (encompassing articles, case-notes and book reviews.) In no particular order, they are:

1. Review:  “Dicey, Morris and Collins on The Conflict of Laws”, reviewed by Lorna Gillies, Civil Justice Quarterly 2007, 26(Oct), 524-526.

2. “Sale of goods and the relentless march of the Brussels I regulation“, Jonathan Harris, Law Quarterly Review 2007, 123(Oct), 522-528.

Comments on the European Court of Justice ruling in Color Drack GmbH v Lexx International Vertriebs GmbH (C-386/05) on whether a court had jurisdiction to hear a dispute under Council Regulation 44/2001 Art.5(1)(b) where there were several places of delivery within one Member State under a contract for the sale of goods.

3. “German Supreme Court refers another question to the ECJ“, Bob Wessels, Insolvency International 2007, 20(8), 127

Notes the decision of the German Federal Supreme Court in Bundesgerichtshof (IX ZR 39/06) to refer to the European Court of Justice the question of whether the courts of the country in which the main insolvency proceedings against a debtor are underway, have international jurisdiction under Council Regulation 44/2001 (the Brussels Regulation) in an avoidance action against a third party with its statutory seat in another country.

4. “The enforceability in Spain of a choice of foreign law clause“, Carlos Valls, International Company and Commercial Law Review 2007, 18(9), 328-330.

Comments on the Spanish Supreme Court ruling in Deutsche Seereenderei GmbH v Martico S.L, which concerned a dispute arising from a Maritime Agency Contract which the parties had agreed would be governed by German law. Considers whether the Supreme Court could hear an appeal based on the correct application of German law and, if so, whether the Supreme Court’s ruling would create a precedent for the interpretation of German law.

5. “The Hague Convention, the civil law and the Italian experience“, Maurizio Lupoi, Trust Law International 2007, 21(2), 80-89.

Discusses how domestic trusts operate in Italy under civil law, and criticises the provisions on the legal nature of a trust in the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985. Explains Italian practice for drafting trust deeds and the courts’ approach to trusts. Examines how an amendment to the Italian Civil Code imposing limitations on dealings with assets will affect trust law.

6. “The Fifth Element” Marcel Lipelt, Law Society’s Gazette L.S.G. (2007) Vol.104 No.34 Page 34.

Highlights changes to EC law, by reason of the transposition of European Parliament and Council Directive 2005/14 into the national law of all member states, which make it easier for residents of a member state who are involved in road traffic accidents in other member state to pursue a claim for damages against the foreign third party insurer, including allowing proceedings to be issued in the courts of the member state in which the claimant is domiciled. Considers which laws the English courts will apply when dealing with such claims, in particular when assessing damages.

(This isn’t, by any means, meant to be a definitive list - if anyone knows of any other PIL-related articles about to be published, please do send me an email.)

The July 2007 ICLQ contains an article by Prof Jan Neels on the revocation of wills in South African private international law with reference to other Commonwealth jurisdictions and the provisions of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961). Specific reference is made to section 3bis (1) (d) of the South African Wills Act 7 of 1953, which is partially based on article 2 of the Convention, and to revocation of wills by marriage and divorce.

Those with online access to the ICLQ can download the article.

A cooperation agreement between the Hague Conference on Private International Law and the Institute for Private International Law in Africa, Faculty of Law, University of Johannesburg, came into effect on 28 August 2007. In terms of the agreement the Johannesburg Institute will act as information centre for the Hague Conference and promote the work of the Conference on the African continent. The Conference will provide all their forthcoming publications, as well as all past publications since 1955, to UJ’s law library in order to assist the Institute with the task.

The conference website informs: This conference to be held in Lisbon, 12-13 November 2007, is organised by the Portuguese Presidency of the EU, in conjunction with the preceding German and the subsequent Slovenian Presidencies, and ERA. The conference will provide participants with an in-depth analysis of the future Rome I Regulation and the Rome II Regulation. The objective of the seminar is to promote a far-reaching and thorough debate concerning the most important or complex issues inherent to the regulations regarding law applicable to contractual and non-contractual obligations.

Concerning Rome I, the seminar will highlight in particular: (a) scope of application, (b) choice of law and applicable law in the absence of choice, (c) consumer contracts, (d) employment contracts, and (e) assignment. In case the legislation process in view of the Rome I Regulation will not be completed by 2007, the following Slovenian Presidency will be able to use the conclusions of this conference in the further adoption procedure.

Furthermore, the Rome II Regulation (OJ L 199/40 of 31 July 2007) will be presented. It shall apply from 11 January 2009. The discussion will concentrate on the following topics: (a) general rules, (b) product liability, (c) the violation of the environment, (d) unfair competition, and (e) infringement of intellectual property rights.

The seminar will provide a forum for debate between legal practitioners, namely judges and lawyers, experts in member states’ ministries and EU legislators on the practical implementation of these two instruments of European private international law.

The conference programme can be downloaded from the conference website.

Cambridge University Press have published a new book on Conflict of Laws in a Globalized World, edited by Eckart Gottschalk (Harvard), Ralf Michaels (Duke), Giesela Ruhl (Max Planck, Hamburg) and Jan von Hein (Max Planck, Hamburg). The book is a tribute to the