Conflict of Laws .net

On the assumption that no more items will be posted to Conflict of Laws .net before 25th December, and possibly 1st January (although we did, in fact, churn out quite a few posts in the festive period last year), I would like to wish everyone a Happy Christmas / Holiday, and a very Happy New Year. I hope everyone returns in 2008 thoroughly refreshed and recharged, helped along by a diet of turkey, fruit cake, mince pies and plenty of wine.

I would like to quickly mention our team of 15 National Editors. If you find this website useful and/or interesting, it is because of their expertise, dedication and generosity. 325 items on new cases, legislation, publications, news, reviews or whatever else have been posted on Conflict of Laws .net during 2007, which represents a considerable amount of time and effort. We have several more scholars joining the team in 2008. If your country is not represented on Conflict of Laws .net, and you would be interested in becoming an Editor, I would be delighted to hear from you.

Best wishes, Martin George.

The most recent chapter in the long-running and highly public dispute between businessman Karlheinz Schreiber and former Prime Minister of Canada Brian Mulroney involves significant conflict of laws issues.  On December 20, 2007, Justice Cullity of the Ontario Superior Court of Justice released his decision holding that Schreiber’s claim was dismissed for lack of jurisdiction.  The decision is not yet posted but should be soon on the CanLII web site (available here).

In Schreiber v. Mulroney the plaintiff sued the former Prime Minister of Canada for $300,000, alleging that Mulroney had breached an agreement to help him with certain business ventures after leaving office.  The underlying facts have raised some concerns, in part because of the way Schreiber paid Mulroney, which was in large amounts of cash.  Mulroney was served outside Ontario, in Quebec.  He moved to challenge the court’s jurisdiction or in the alternative for a stay of proceedings in favour of Quebec.

Justice Cullity held that there was no real and substantial connection between the dispute and Ontario, and as a result Ontario did not have jurisdiction.  He accordingly dismissed the action.  On the facts, it is hard to argue with this decision.  So much connected the dispute with Quebec and very little connected it to Ontario.  Justice Cullity indicated that had the court had jurisdiction, he would have stayed proceedings in favour of Quebec.

There are several points in the decision worthy of at least brief comment.  One relates to the issue of attornment.  Mulroney’s Ontario lawyer initially indicated a willingness to accept service, but on seeing the statement of claim he refused to do so because of the lack of connection between the dispute and Ontario.  Justice Cullity correctly held that this did not raise any issue of Mulroney having attorned – his lawyer did not in the end accept the service.  More problematic, though, is his obiter dictum that “as it is accepted that valid service is not by itself sufficient to establish jurisdiction, an acceptance of service should not have this effect by treating it as an attornment and, in effect, a submission to the jurisdiction” (para. 25). 

In this statement, Justice Cullity may be confusing issues of service inside the jurisdiction with those of service outside Ontario.  Valid service outside Ontario is indeed not enough for jurisdiction: the real and substantial connection must also be shown.  But this is not the case for service inside Ontario.  If the defendant is served based on presence inside the jurisdiction, either personally or through an accepting Ontario lawyer, that has traditionally been sufficient for jurisdiction and, even in the wake of Morguard, there is no further search for a real and substantial connection.  This raises no issue of attornment.  Had Mulroney’s lawyer accepted service in Ontario that should have ended the jurisdictional inquiry.  The fact that an Ontario lawyer accepts service for a defendant outside the jurisdiction does not make this any less an instance of service inside the jurisdiction.

Second, Justice Cullity states that “Where a defendant moves to set aside service on the ground that there is no real and substantial connection with Ontario, the question will be whether there is a good arguable case that the connection exists” (para. 18.2).  There is room to dispute, or maybe just dislike, this formulation.  Put this way, the test may be too easy for a plaintiff to satisfy.  The plaintiff does not have to only show a good argument that there is a real and substantial connection – the plaintiff must show such a connection does exist.  If facts relevant to the analysis of jurisdiction are in dispute, then it is generally correct to say that only a good arguable case need be shown that those facts can be established before the court can then make use of them in its analysis of the connection.  But that analysis then looks for a real and substantial connection, not a good arguable case for such a connection.  Whether there is a real and substantial connection is primarily a legal conclusion, not a factual one.

Third, Justice Cullity seems to think that the eight-factor Muscutt formulation is focused on tort claims, and that further factors need to be considered in contract claims (para. 37).  He goes on to consider the place where the contract was made, performed and breached and where any damage was sustained.  These are appropriate things to consider, but it may not be helpful to label them as additional factors to add to the eight in Muscutt.  Rather, they are relevant considerations under some of those factors (which are reasonably general).  One of these factors is the connection between the forum and the plaintiff’s claim, and another is any unfairness to the defendant in taking jurisdiction.  Each of these considerations can and should be considered as part of those factors, just as the location of where a tort occurred would be.  Adding more factors to the Muscutt framework on a case-by-case basis runs the risk of making the analysis of a real and substantial connection even more complex.

Fourth, Justice Cullity’s analysis of Rule 17.02, the heads for service out without leave, is not the most conventional.  He starts his overall analysis looking for whether there is a real and substantial connection, and only subsequently comes on to look at the heads.  While both must be satisfied in a service out case, the typically approach looks first at whether the claim fits within one or more heads, and then if it does looks for the connection.  In addition, Justice Cullity, in quite brief reasons, finds that Schreiber’s claim does not fit within the heads.  This is something of a surprise given the breadth of Rule 17.02(h), damage sustained in Ontario.  Justice Cullity finds that Schreiber was in effect seeking restitution of the $300,000, rather than damages for breach of contract (para. 70).  But this seems to adopt a very narrow meaning for the head.  Even in a claim in unjust enrichment, the plaintiff has suffered a loss and that loss can be located geographically, Schreiber being an Ontario resident.  It is hard to see how this loss is not “damage sustained”.

In the end, even if there is force to these criticisms, none of them impugn the conclusion that there was not a real and substantial connection to Ontario on the facts of this case.  But much is at stake in this litigation, and so an appeal seems a reasonable possibility.

There is a substantial book review in the new issue of the Standard Law Review (Oct 2007, Vol. 60, Issue 1): What Do We Really Know About the American Choice-of-Law Revolution? by Hillel Y. Levin (Stanford). It provides a detailed critique of Symeon Symeonides’ most recent book, The American Choice-of-Law Revolution: Past, Present and Future . Here’s some of the introduction:

Virtually everyone who has engaged in choice-of-law scholarship has had unflattering things said about him or her, and every scholar’s favorite methodology has come under attack. Given the reputation of the First Restatement of Conflicts of Laws, it should come as little surprise that Joseph Beale, its drafter, “has been the target of ridicule by practically every conflicts writer in the last four decades,” or that the First Restatement itself “has been the favorite punching bag of every conflicts teacher.” But the scholars who succeeded Beale and pioneered the modern approaches have fared no better, and neither have their theories. William Prosser memorably referred to conflicts scholars as “learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon.” Prosser’s assessment is charitable compared to that of Lea Brillmayer, who has described them as “a wild-eyed community of intellectual zealots.” Meanwhile, the modern doctrinal approaches have yielded “gibberish” and “confused and misguided thinking.” In short, modern conflicts theory and doctrine is a mess—a “debacle,” according to one scholar—and there is no real consensus
on how to clean it up.

It is time for a new treatment of conflicts, one that does not approach it either through high-minded theory or as a set of convoluted law school exam fact patterns. What the field really needs is empirical inquiry: what has the revolution in choice of law wrought, and what can we learn from that? Intrepid researchers have undertaken this task in fits and starts over the past fifteen years or so, and the conflicts giant Dean Symeon Symeonides has been at the forefront of the project. His highly anticipated and ambitious new book, The American Choice-of-Law Revolution: Past, Present and Future, is the pinnacle of his efforts and aims to be the authoritative word on the impact of the revolution. First delivered as a series of lectures at The Hague Academy of International Law in 2002 and now widely available for the first time, it should be required reading for anyone engaging in conflicts scholarship.

You can download the full review from here (PDF). Highly recommended.

The fourth issue of the French Journal du Droit International (Clunet) has been released. It contains three articles dealing with private international law issues (the table of contents in French can be found here).

First, the Journal offers the end of the article of Ms Legros (the first part of which was published in the third issue of the Journal) on Conflicts of Norms in the Field of International Contracts for Carriage of Goods (”Les conflits de normes en matière de contrats de transport internationaux de marchandises“). The second part of the study focuses on jurisdictional and enforcement issues.

The second article is authored by Professor Emmanuel Gaillard, who teaches at Paris XII university, and who is also a leading practionner of international commercial arbitration. It discusses the Representations of International Arbitration, Between Sovereignty and Autonomy (”Souverainté et autonomy: réflexions sur les représentations de l’arbitrage international“). The English abstract reads:

The autonomy of international arbitration vis-à-vis national legal orders raises important question of legal theory. There are several representations of international arbitration: that assimilating the arbitrator to the courts of a single legal system; that perceiving the autonomy of international arbitration as detached of national legal systems; and that considering such autonomy as anchored in the entirety of the legal systems that accept, under certain conditions, to recognize the arbitral award. Significant practical consequences follow from these distinctions.

The third is authored by Didier Lamethe, who is the Secrétaire Général of EDF International, a subsidiary of the French national electricity company. His article discusses the Languages of International Arbitration (”Les langues de l’arbitrage international : liberté or contraintes raisonnées de choix ou contraintes réglementées ?“). The English abstract reads:

As far as international contracts are concerned, language plays a key part beyond the negotiation and the signature, in the event of deviations of interpretation ending up in an arbitration. Thus arises the question of the choice an the backgrounds of the choice of the language(s) regarding not only the proceedings, but also some sides of the proceedings. This essays puts up the principles of a sharing-out between the feasible and the forbidden, the content of arbitration rules making up a reference for a comparative analysis of great interest. Such an approach outlines the areas of freedom for the choice to be made and gives a demonstration of the imprecise figure of the constraints.

Available to suscribers.

C.J.S. Knight has written a casenote in the Conveyancer and Property Lawyer on the High Court decision in Iran v Berend (Conv. (2007) November/December Pages 564-571). Here’s the abstract:

Discusses the Queens Bench Division decision in Iran v Berend on whether renvoi has a place in choice of law cases concerning title to moveable property, in particular whether in a case concerning title to a fragment of limestone relief originating in ancient Persia, bought in New York by a resident of France and sent to England to be auctioned the English court was bound to apply French private international law rules or whether the dispute fell to be determined by reference to French domestic law. Considers the purpose of the lex situs rule in conflict of law cases.

Available to Conv. subscribers.

Adrian Briggs (Oxford) has written a note in the November issue of the L.M.C.L.Q. (2007, 4(Nov), 433-438) on the recent decision of the Court of Appeal in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723. The Westlaw abstract reads:

Discusses the Court of Appeal judgment in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd on whether to grant an anti-suit injunction to stop New York proceedings. Examines whether the insurance broker should be allowed to sue an associate’s former employees in New York to recover incentive payments, under a contract which stipulated the New York court. Considers whether the rules on contracts of employment under Regulation 44/2001 (Brussels Regulation) applied to an action by the employer’s associate.

There is also an article in the same issue on “Ship Mortgagees and Charterers” by David Osborne which touches on conflict of laws issues:

Explores the circumstances in which the mortgagee of a ship could be liable to a charterer or cargo interest when it enforces its mortgage, thereby preventing performance of a charterparty or contract of affreightment by the owner, in light of the Commercial Court’s consideration of the issue on an obiter basis in Anton Durbeck GmbH v Den Norske Bank ASA. Assesses the often conflicting case law on the question and the re-shaping of the law regarding economic torts.

Several book reviews are also in the LMCLQ this month:

• R. Cox, L. Merrett & M. Smoth, Private International Law of Insurance and Reinsurance (LLP, 2007), reviewed by Johanna Hjalmarsson
• J. Fawcett, J. Harris & M. Bridge, International Sale of Goods in the Conflict of Laws (OUP, 2005), reviewed by Christopher Hare
• L. Collins et al, Dicey Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 14th edn, 2006), reviewed by Andrew Scott

The LMCLQ is available to subscribers.

Dan Jerker B Svantesson (Bond University) has written a short article on “Conflict of Laws Issues Associated with an Action for Interference with Privacy” in the current issue of Computer Law and Security Report (C.L.S.R. 2007, 23(6), 523-528). The abstract reads:

Examines Australian conflict of laws issues associated with actions for interference with privacy. Considers developments indicating a movement towards the recognition of such actions in Australia. Discusses the potential impact of actions for interference on internet conduct and the application to such actions of Australian rules of jurisdiction and choice of law, including the three key concepts relating to: (1) where the cause of action is committed; (2) where the damage is suffered; and (3) what is the “place of wrong”. Notes the issue of forum non conveniens.

Available to CLSR subscribers (via Westlaw.)

Ranjit and Anil Malhotra have written a piece on “Inter-Country Adoptions from India” in the new issue of the Commonwealth Law Bulletin (C.L.B. 2007, 33(2), 191-207 ). Here’s the abstract:

This article discusses the inter-country adoption procedure, coupled with the relevant legislation to be complied with by foreigners seeking to adopt children from India. At the outset, it is important to emphasise that at present there exists no general law on adoption of children governing non-Hindus and foreigners. Adoption is permitted by statute among Hindus, and by custom among some other communities. Quoting extensively from case law and legal provisions, this article examines the procedure to be followed in inter-country adoption from India and the role of the Central Adoption Resource Agency (CARA), the principal monitoring agency of the Indian Government handling all affairs connected with national and inter-country adoptions. In the section dealing with problems faced in Inter-Country adoption, the authors point out that: “At present non-Hindus and foreign nationals can only be guardians of children under the Guardian and Wards Act 1890. They cannot adopt children.” In conclusion, the authors call for an overhaul of the existing adoption law in India, not least, in the light of the growing demand for a general law of adoption enabling any person, irrespective of his religion, race or caste, to adopt a child.

Electronic access is available to subscribers.

Today, the ECJ delivered its judgment in case C-463/06 (FBTO Schadeverzekeringen N.V. v. Jack Odenbreit).

The German Federal Supreme Court (Bundesgerichtshof) had referred the following question to the ECJ for a preliminary ruling:

Is the reference in Article 11(2) 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 to Article 9(1)(b) of that regulation to be understood as meaning that the injured party may bring an action directly against the insurer in the courts for the place in a Member State where the injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State?

The Court held as follows:

The reference in Article 11(2) 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 to Article 9(1)(b) of that regulation is to be interpreted as meaning that the injured party may bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State.

See for the full judgment the website of the ECJ and for the background of the case our previous posts which can be found here and here.

In a recent case, the Federal Court of Australia held that a US-incorporated corporation which had been served in the US, and which had filed a conditional appearance only to challenge the Court’s jurisdiction, was not required to produce documents pursuant to a notice to produce (similar to a subpoena). Jacobson J said (at [10]): ‘I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court.’ See Armacel Pty Limited v Smurfit Stone Container Corporation [2007] FCA 1928.

From the European Judicial Network website:

On 5 December 2007, the Commission adopted its report on the application of the Council Regulation (EC) 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

The report has been prepared in accordance with Article 23 of the Regulation. It concludes that the application of the Regulation has generally improved, simplified and accelerated the cooperation between the courts on the taking of evidence in civil or commercial matters. The Regulation has achieved its two main objectives, namely firstly to simplify the cooperation between Member States and secondly to accelerate the performance of the taking of evidence, to a relatively satisfactory extent. Simplification has been brought about mainly by the introduction of direct court-to-court transmission (although requests are still sometimes or even often sent to central bodies), and by the introduction of standard forms. As far as acceleration is concerned, it can be concluded that most requests for the taking of evidence are executed faster than before the entry into force of the Regulation and within 90 days as foreseen by the Regulation. Consequently, modifications of the Regulation are not required, but its functioning should be improved. In particular in the current period of adaptation which is still ongoing, there are certain aspects concerning the application of the Regulation which should be improved.

The Commission

• encourages all further efforts – in particular beyond the dissemination of the practice guide - to enhance the level of familiarity with the Regulation among legal practitioners in the European Union.
• is of the view that measures should be taken by Member States to ensure that the 90 day time frame for the execution of requests is complied with.
• is of the view that the modern communications technology, in particular videoconferencing which is an important means to simplify and accelerate the taking of evidence, is by far not used yet to its possible extent, and encourages Member States to take measures to introduce the necessary means in their courts and tribunals to perform videoconferences in the context of the taking of evidence.

The Commission’s report is based on a study prepared by an external contractor, available on the DG Freedom, Security and Justice website: the contractor carried out a survey, using the feedback provided by administrations of Member States, judges, attorneys and other persons involved in the application of the Regulation (see the annexes to the study).

The new service regulation repealing reg. 1348/2000, adopted by the European Parliament at second reading in its plenary session of 24 October 2007 (see our dedicated post here), has been published in the Official Journal of the European Union n. L 324 of 10 December 2007. The official reference is the following:

Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ n. L 324, p. 79 ff.): pursuant to its Article 26, the new regulation will apply from 13 November 2008.

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

Thomas Thiede and Markus Kellner (both Vienna) have written an article on Forum Shopping between Rome II and the Hague Convention on the Law applicable to Traffic Accidents in the legal journal Versicherungsrecht (VersR 2007, 1624 et seq.): “‘Forum shopping’ zwischen dem Haager Übereinkommen über das auf Verkehrsunfälle anzuwendende Recht und der Rom-II-Verordnung”.

The authors argue that Article 28 (1) Rome II, which provides as a general rule that the Regulation shall not prejudice the application of international conventions to which one or more Member States are parties and which lay down conflict-of-law rules relating to non-contractual obligations, leads to the precedence of the Hague Convention on the law applicable to traffic accidents since the exception clause of Article 28 (2) Rome II is – due to the fact that also Non-Member States are parties to the Hague Convention – not applicable.

It is submitted that the subsidiarity of the Rome II Regulation on the one side and the fact that the Hague Convention has not been ratified by some Member States on the other side entails the possibility of forum shopping. Thus, the authors argue, it would have been preferable to give priority to the Rome II Regulation over all Hague Conventions in order to ascertain – at least for intra-EU cases – the applicability of only one law.

The British Institute of International and Comparative Law (BIICL) organizes on Monday 21 January 2007, 09.00 -18.00 (at the Honourable Society of Lincoln’s Inn, Lincoln’s Inn, London, WC2A 3TL) the 11th annual review of the Arbitration Act 1996 titled “Is English law really better?” The speakers will review the English Arbitration Act 1996. The 2007 annual review proposes a comparative look at developments in England as the courts now approach 1,000 decided cases since entry into force of the Act. This year’s review takes place against the background of claims by the Law Society (England and Wales: The Jurisdiction of Choice, October 2007) that London as an arbitration venue and English law are superior to civil law jurisdictions in terms of quality of legal norms, certainty, predictability, arbitration friendliness, lawyers and infrastructure. Are the Law Society’s claims legitimate or merely an expression of legal ethnocentrism by practitioners unfamiliar with systems of law other than their own? The special after dinner speaker is M. Jean-Pierre Ancel Président de Chambre honoraire de la Cour de cassation, France who will give a speech titled “Les principes confirmés et les nouvelles avancées dans l’arbitrage international”. For a list of the speakers, have a look at the website.

A few weeks ago, I wrote a post on the story of a French couple who bypassed the French ban on surrogacy by resorting to a Californian surrogate mother. When the couple came back to France, French prosecutors took all available legal steps to deny them recognition of their parental status in France.

I am grateful to Kees Saarloos for forwarding me the judgment of the Paris court of appeal which ruled on the conflict issue on October 25, 2007. The judgment, however, is quite disappointing. It seems that French prosecutors were unable to analyze properly the conflict issues and thus to present a robust argumentation against the recognition of the parental status acquired in the U.S. This enabled the French court to reach a decision without truly addressing the issues. The judgment identified a few of them, but then stressed that they were not put forward by the plaintiff (i.e. the prosecutors), and that it did not need address them.

The judgment is more useful for the background it gives on what happened in California. The California Supreme Court had conferred the parental status to the French couple before the actual birth of the children, and ordered both the hospital in San Diego and the Californian Department of Public Health to mention the couple as the only parents on the hospital registry and the birth certificate. The couple could thus have sought recognition of a variety of foreign public acts. One was the Californian judgment, another was the birth certificate.

In a nutshell, the actual decision of the court can be summarized as follows:

As the plaintiffs have not challenged the recognition of either of these acts in France, their challenge of the transcription of the parental status on the French registries is inadmissible. The foreign acts govern.

The plaintiffs did not challenge the accuracy of the content of the transcription, but only the transcription itself. The issue of whether the couple was actually the parents of the children was therefore not before the court.

Finally, and in any case, failure to provide the couple with a parental status would result in the children having no parents legally speaking, which would not comport with the superior interest of the children.

One issue which is addressed (very) implicitly by the court is whether the dispute ought to have been decided by application of a law or of a decision. In other words, the court could have ruled that the issue at stake was one of choice of law. It would have then applied its choice of law rule in order to determine the law governing parenthood. Indeed, this was argued by the defendants. Instead, the court finds that the issue is one of recognition. The foreign acts govern, because they were recognised. Arguably, this could have been different if the accuracy of the content of the transcription had been challenged, and this is maybe what the court rules implicitly by noting that there was no such challenge.

Finally, the central issues of whether the foreign acts were contrary to French public policy and whether there had been a fraude à la loi are not addressed (on these ground for denial of recognition, see my previous post).

UPDATE: The French text of the decision can be found here (thanks to Esurnir). Various comments of the decision can be found on French blogs (see here and here) Finally, a personal reaction of the father of the children can be found here (in French). The couple has also created its own website.

Following our post on the forthcoming JHA Council session (6-7 December 2007), here’s a document prepared by the General Secretariat of the Council for the Permanent Representatives Committee (COREPER), providing a short presentation of the Parliament’s vote on Rome I and the text of the EP legislative resolution at first reading (see our post here):

I. INTRODUCTION

The Committee on Legal Affairs adopted sixty-four amendments to the proposal for a Regulation (amendments 1- 64). In accordance with the provisions of Article 251(2) of the EC Treaty and the joint declaration on practical arrangements for the codecision procedure, a number of informal contacts have taken place between the Council, the European Parliament and the Commission with a view to reaching an agreement on this dossier at first reading, thereby avoiding the need for a second reading and conciliation.

In this context, the rapporteur, Mr Cristian DUMITRESCU (PES - RO), and the PES, EPP-ED, ALDE, UEN and Greens/EFA political groups together tabled a further twenty-one compromise amendments (amendments 65-85).

These amendments had been agreed during the informal contacts referred to above. During the debate, Vice-President of the Commission Frattini made a statement regarding Article 5a on behalf of the Commission, and invited the Council to support it.

II. VOTE

At the vote which took place on 29 November 2007, the plenary adopted the twenty-one compromise amendments (amendments 65-85) and forty-nine of the Committee’s original amendments […].

The amendments adopted correspond to what was agreed between the three institutions and ought therefore to be acceptable to the Council.

Consequently, once the lawyer-linguists have scrutinised the text, the Council should be in a position to adopt the legislative act. […]

As regards the legal-linguistic revision of the EP text, the document sets a deadline of 18 January 2008 for the national delegations to send their observations to the Council’s Directorate for the Quality of Legislation: it is therefore likely that, if a political agreement is reached in the Council on 7 December 2007, the Rome I Regulation will be officially adopted in one of the Council’s session in early 2008.

The Council’s discussion on Rome I, that will take place on 7 December about 11h00 AM, will be open to the public, like every deliberation under the co-decision procedure. It will therefore be broadcasted on the Council’s website.

- - -

As regards the debate that preceded the vote in the European Parliament (29 November 2007), the transcription (mainly in French) has been made available on the EP website. Most part of the speakers (among which Commissioner Frattini and the EP Rapporteur Dumitrescu) focused on the conflict rule on consumer contracts (art. 6 of the EP legislative resolution), one of Parliament’s main concerns, pointing out the balance struck in the provision between the need of protection of the weaker party and the commercial interests of the “professionals” (especially SMEs).

According to rapporteur Dumitrescu, the United Kingdom, that has not so far given notice of its wish to take part in the adoption of the Rome I Regulation, may be reconsidering its position, in the light of the text resulting from the informal agreement between EP and Council.

On 6 and 7 December the Justice and Home Affairs Council will hold its 2838th session in Brussels, under the Portuguese Presidency. Among the “Justice” issues, scheduled for Friday 7th, the Presidency will inform about the agreement reached with the European Parliament on the Rome I Regulation (see our post on the EP report and legislative resolution at first reading). Here’s an excerpt from the background note:

The Presidency will inform the Council about a first reading agreement reached with the European Parliament on a Proposal for a Regulation of the law applicable to contractual obligations. […] Numerous informal meetings have been held with the European Parliament with a view to reaching a first reading agreement in the framework of the co-decision procedure. The European Parliament adopted its report on 29 November 2007.

As regards the JHA “External Relations” issues, the Presidency will inform on the outcome of the diplomatic conference on the new Convention on the international recovery of child support and other forms of family maintenance. The Convention, that was drafted in the frame of the Hague Conference on Private International Law (of which the EC is a member since April 2007), was finalised at the end of the twenty-first session of the diplomatic conference, held in The Hague from 5 to 23 November 2007, along with a Protocol on the Law Applicable to Maintenance Obligations (see the HCCH’s press release). It was signed on the same day by the United States of America. The text of the Convention and Protocol, and the preliminary documents, are available on the HCCH website.

Significant issues of private international received notable attention in the federal courts over this past month.

We’ll begin with an issue that has long-tortured consensus in federal courts: anti-suit injunctions. Over three years ago, Judge Selya outlined a split of circuit authority over the “legal standards to be employed in determining whether the power to enjoin an international proceeding should be exercised.” Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 3161 F.3d 11 (1st Cir. 2004). The application of these standards – whichever are employed – dictates when the power “should be exercised.” These decisions, however, say nothing of the threshold inquiry of when they “can be exercised.” The Second and (now) Eleventh Circuits believe that the discretionary balancing test articulated by Quaak is triggered only if the domestic action is “dispositive” of the foreign action; the Ninth and First Circuits take a bit more lenient approach, and engage in a comity-analysis so long as the actions are “substantially similar.”

In Canon Latin America, Inc. v. Lantech S.A., No. 07-13571 (11th Cir., November 21, 2007), a party sought to enjoin a Costa Rican action that, in essence, sought damages under Costa Rican law for the unlawful termination of a exclusive distributorship agreement. The opposing party brought an action in the Southern District of Florida to declare the non-exclusivity portions of the distributorship valid. The Court of Appeals vacated an anti-suit injunction because, “strictly” speaking, the domestic action would not “dispos[e] of . . . statutory rights that are unique to Costa Rica.” In a footnote, the panel noted the disagreement among the circuits; to wit, the Ninth and First Circuit have, in strikingly similar circumstances, found the threshold inquiry satisfied and proceeded to determine whether an injunction “should” issue. Id. at n. 8. The decision of the Eleventh Circuit is located here.

In a second development, the Sixth Circuit has re-weighed-in on a significant disagreement governing The Hague Convention on the Civil Aspects of International Child Abduction. The pivotal question in Robert v. Tesson, No. 06-3889 (6th Cir., November 14, 2007) concerns how to determine a child’s “habitual residence” under the Convention. The Ninth and Eleventh Circuits generally give dispositive weight to the “subjective intention of the parents” in answering this question. The Sixth Circuit, in line with the Third and Seventh Circuits, pins habitual residence on the place where there is a “degree of settled purpose from the child’s perspective.” The decision in Robert, which includes a studious examination of the Convention, its text and intent, can be found here.

Finally, the Supreme Court has granted certiorari in a significant case concerning the foreign policy implications of a private lawsuit, and will most likely receive a compelling petition to hear another. In Republic of Phillipines v. Pimentel, the Court agreed to consider a dispute over money stolen by the late Philippines dictator Ferdinand Marcos. The money is now in a U.S. bank account, and the court will consider whether it can be distributed to individuals asserting claims for human rights abuses against Marcos in the absence of the Republic from the case (who is asserting sovereign immunity). The ruling by the Ninth Circuit Court to allow the distribution would allegedly prejudice cases pending in the Philippines on the same issue. Appearing as amicus curiae, the Solicitor General asserts on behalf of the Republic that the willingness of lower U.S. courts to get involved “raises significant concerns,” that “threatens to undermine” the ability of the United States to assert sovereign immunity in foreign courts in similar circumstances or to enforce its judgments abroad. The Ninth Circuit’s decision is available here, and the Solicitor General’s brief is available here.

A similar case is on the verge of Supreme Court review was previously noted on this site. Khulumani v. Barclay Nat’l Bank, No. 05-2141 (2d Cir.) concerns claims against various multinational corporations stemming from decades of apartheid in South Africa. Remarkably, in its recent decision in Sosa v. Alvarez-Machain, the Court held in a footnote that this very case presents a “strong argument” for deferring to the Executive Branch, which has steadfast opposed the suit on the grounds of foreign policy. A majority of the Second Circuit panel that allowed the claims to proceed held that outright dismissal was “premature” in light of a Supreme Court footnote. Along with the mandate of its “foreshadowing footnote,” Lyle Denniston at SCOTUSBlog points out that review by the Court would also

give the Justices an opportunity to clarify . . . its June 2004 ruling in the Sosa case. That decision clearly left the courthouse door ajar to claims of human rights abuses, if they were confined to “a relatively modest set of actions alleging violations of the law of nations…a small number of international norms.” [While] Justice David H. Souter, called for “judicial caution” and for “great caution in adapting the law of nations to private rights,” . . . Justice Antonin Scalia suggested that the claim of discretionary power in the U.S. courts to create rights to sue to enforce international law was deeply flawed.

See this post for more details and links to the decision and briefs.

The European Parliament released on 26 November 2007 its tabled legislative report, 1st reading or single reading (download  the report from the OEIL page and see the status of the procedure). This report is expected to be debated or examined by the Council on 6 December 2007 after which a probable part-session is scheduled by the DG of the Presidency, 1st reading on 12 December 2007. See our earlier posts on the maintenance obligations regulation here, here and here.