Conflict of Laws .net

An interesting volume, collecting the contributions presented at the Seminario de Otoño de Derecho Internacional Privado (Fall Seminar on Private International Law), hosted in October 2007 by the University Carlos III of Madrid, has been recently published by Editorial Colex, under the editorship of Prof. Alfonso Luis Calvo-Caravaca and Prof. Esperanza Castellanos Ruiz: La Unión Europea ante el Derecho de la Globalización.

The papers (in Spanish, Italian and Portuguese) cover various aspects of European Private International Law, analysing its current development in the light of issues arising from globalization. Here’s the table of contents:

• Luís de Lima Pinheiro: O direito de conflitos das obrigações extracontratuais entre a comunitarização e a globalização - uma primeira apreciação do regulamento comunitario Roma II;
• Hilda Aguilar Grieder: La voluntad de conciliación con las directivas comunitarias protectoras en la propuesta de reglamento “Roma I”;
• Alfonso Luis Calvo Caravaca and Celia M. Caamiña Domínguez: El caso Klimt;
• Javier Carrascosa González: Sociedad cooperativa europea: aspectos de derecho internacional privado;
• Esperanza Castellanos Ruiz: El convenio de Roma de 1980 ante los tribunales españoles: balance de 15 años de vigencia;
• Ma. José Castellanos Ruiz: Contencioso Airbus-Boeing;
• Ma. Pilar Diago Diago: Aproximación a la mediación familiar desde el derecho internacional privado;
• Pietro Franzina: Il regolamento “Roma II” sulla legge applicabile alle obbligazioni extracontrattuali;
• Rafael Gil Nievas and Javier Carrascosa González: Consideraciones sobre el reglamento 805/2004 de 21 abril 2004 por el que se establece un título ejecutivo europeo para créditos no impugnados;
• Dario Moura Vicente: Perspectivas de la armonización y unificación internacional del derecho privado en una época de globalización de la economía;
• Carola Ricci: Il foro della residenza abituale nel regolamento Nº 2201/2003 e nella proposta Roma III;
• Juliana Rodríguez Rodrigo: Aplicación del derecho de la competencia a los baremos de honorarios de abogados: Arduino y Cipolla;
• Stefania Serafini: Il diritto europeo della concorrenza e le risposte alla sfida della globalizzazione. Un caso esemplare: la valutazione delle concentrazioni nel Reg. CE n. 139/2004.

Title: La Unión Europea ante el Derecho de la Globalización, edited by Alfonso Luis Calvo-Caravaca and Esperanza Castellanos Ruiz, Editorial Colex, Madrid, 2008, 515 pages.

ISBN: 978-8-48-342113-0. Price: EUR 70.

(Many thanks to Pietro Franzina, University of Ferrara, for the tip-off)

Recently, the May/June issue of the German legal journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was released.

It contains the following articles/case notes (including the reviewed decisions):

• M. Stürner: “Staatenimmunität und Brüssel I-Verordnung – Die zivilprozessuale Behandlung von Entschädigungsklagen wegen Kriegsverbrechen im Europäischen Justizraum” - The English abstract reads as follows:

The article examines the impact of the law of State immunity on the scope of international jurisdiction under the Brussels I Regulation. Recently the appellate court of Florence, Italy, has granted enforceability to a judgment in which the Greek Supreme Court, the Areios Pagos, had awarded damages to descendants of victims of a massacre committed in 1944 by German SS militia in the village of Dístomo, Greece. Both Greek and Italian courts have based their jurisdiction on an exception to State immunity which was held to exist in cases of grave human rights violations. This standpoint, however, does not reflect the present state of public international law, nor does it take into account the intertemporal dimension of public international law rules. Neither under the Brussels I regime, nor under domestic Italian law a judgment which was rendered in violation of customary State immunity rules can be recognized or enforced. The Brussels Regulation has a limited scope of application. It is designed to respect public international law rules of State immunity, not to trump them. The Regulation therefore does not apply in cases where the defendant enjoys immunity from civil jurisdiction.

• L. de Lima Pinheiro: “Competition between legal systems in the European Union and private international law”
  The author discusses the idea of competition between national legal systems and focuses on two aspects: Competition between legal systems and juridical pluralism and competition between legal systems and freedom of choice. Further, the author outlines the mission of private international law in the existing framework of legal pluralism within the EU by emphasising the importance of private international law in a world characterised by globalisation and legal pluralism which should, in the author’s view, be reflected in an essential place of private international law in the teaching of law.

• P. Scholz:“Die Internationalisierung des deutschen ordre public und ihre Grenzen am Beispiel islamisch geprägten Rechts”
  The author examines the internationalisation of the German public policy clause and argues that human rights guaranteed in European and international law have to be taken into account within the framework of German public policy. Further there is, according to the author, no room for a relativization of the German public policy clause in case of internationally guaranteed human rights. Concerns which are expressed towards a supremacy of German values disregarding foreign legal systems are rebutted by the author in reference to the, for several reasons, only limited application of internationally guaranteed human rights.

• M. Heckel: “Die fiktive Inlandszustellung auf dem Rückzug – Rückwirkungen des europäischen Zustellungsrechts auf das nationale Recht”
  The author examines the impact of the European provisions of service on national law and argues that internal fictional service is, as a consequence of European law, at the retreat in Europe. Nevertheless, internal fictional service is - according to the author - in principle compatible with European law. It was only the statement of claim which had to be served effectively. In case of a fictional service of a statement of claim, a subsequent judgment in default could neither be recognised nor declared enforceable. In view of the right to be heard, internal fictional service was only admissible if the defendant could take notice of the judicial document.

• R. Geimer: “Los Desastres de la Guerra und das Brüssel I-System” (ECJ - 15.02.2007 - C-292/05 - Lechouritou)
  The author reviews the ECJ’s judgment in “Lechouritou” which concerned an action for compensation brought against Germany by Greek successors of victims of war massacres and agrees with the Court that actions brought for compensation in respect of acts perpetrated by armed forces in the course of warfare do not constitute “civil matters” in terms of Brussels I. Thus, the author concludes that consequences of war and occupation can only be dealt with at the level of international law.

• C. Althammer: “Die Auslegung der Europäischen Streitgenossenzuständigkeit durch den EuGH – Quelle nationaler Fehlinterpretation?” (ECJ - 11.10.2007 - C-98/06 - Freeport) - The English abstract reads as follows:

In the case Freeport/Arnoldsson the European Court of Justice has not rewarded the anticipatory obedience that national courts have paid to the judgement Réunion Européenne. Two claims in one action directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict can be regarded as connected (Art. 6 (1), Council Regulation (EC) No 44/2001). In this respect the decision Freeport/Arnoldsson seems correct, although it is criticisable that the ECJ changes his course in such an oblique way. There is no favour done to legal certainty that way. An interpretation of the connection orientated towards the specific case which takes into account the national characteristics is advisable in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. There is no risk of irreconcilable judgments if the proceeding against the anchor defendant is inadmissible. Moreover, the plaintiff must have a conclusive cause of action. Some chance of success seems to be necessary. The possibility of abuse requires an objective handling of the connection. In addition, subjective elements like malice are difficult to prove.

• A. Borrás: “Exclusive” and “Residual” Grounds of Jurisdiction on Divorce in the Brussels II bis Regulation (ECJ - 29.11.2007 - C-68/07 - Sundelind Lopez)
  In the reviewed case, the ECJ has held that Artt. 6 and 7 Brussels II bis have to be interpreted as meaning that where in divorce proceedings, a responsent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction on their national law if the courts of another Member State have jurisdiction under Art. 3 Brussels II bis. The author agrees with the ECJ regarding the final ruling, but is nevertheless critical with regard to the arguments brought forward by the Court and submits that the fact that there was no opinion by an Advocate General had a negative effect on the case. In this respect, the author regrets that this will happen more often in the future since the recent amendments of the Protocol on the Statute of the Court of Justice and of the rules of procedure of the Court provide “for an expedited or accelerated procedure and, for references for a preliminary ruling relating to the area of freedom, security and justice, an urgent procedure”.

• H. Roth: “Der Kostenfestsetzungsbeschluss für eine einstweilige Verfügung als Anwendungsfall des Europäischen Vollstreckungstitels für unbestrittene Forderungen” (OLG Stuttgart - 24.05.2007 - 8 W 184/07)
  The author approvingly reviews a decision of the Court of Appeal Stuttgart dealing with the question whether an order for costs for an interim injunction constitutes a “judgment” in terms of the Regulation creating a European Order for uncontested claims. The case concerned the question whether a certification of the order for costs as a European Enforcement Order had to be refused due to the fact that the underlying decision constituted an interim injunction which had not been given in adversarial proceedings. Thus, the case basically raised the question of the interdepence between the order for costs and the underlying decision. Here the court held that it was sufficient if the defendant was granted the right to be heard subsequently to the service of the decision.

• D. Henrich: “Wirksamkeit einer Auslandsadoption und Rechtsfolgen für die Staatsangehörigkeit” (OVG Hamburg - 19.10.2006 - 3 Bf 275/04)
  In the reviewed decision, the Higher Administrative Court Hamburg had to deal with the question of acquisition of German nationality by adoption and thus with the question which requirements an adoption has to comply with in order to lead to the acquisition of German nationality.

• M. Lamsa: “Allgemeinbegriffe in der Firma einer inländischen Zweigniederlassung einer EU-Auslandsgesellschaft” (LG Aachen - 10.04.2007 - 44 T 8/07)
  The author critically examines a decision of the Regional Court Aachen which has held - in view of the freedom of establishment - that the registration of a subsidiary of an English Limited could not be refused even if the trading name does not meet the requirements of German law.

• H. Sattler: “Staatsgeschenk und Urheberrechte” (BGH - 24.05.2007 - I ZR 42/04) - The English abstract reads as follows:

More than a decade after the fall of the Berlin Wall, the German Bundestag, in the course of a public ceremony in Berlin, donated to the United Nations three sections of the former Wall which had been painted by an Iranian artist without the landowner’s assent. The Bundesgerichtshof dismissed the artist’s claim for damages. The court found that the donation did not infringe the plaintiff’s rights of distribution (§ 17 German Copyright Act), because the parts of the wall were handed over only symbolically in Berlin whereas the actual transfer took place later in New York. The court further held that the painter had no right to be named (§ 13 German Copyright Act) during the Berlin ceremony, since his work was not exhibited at that presentation and had not been signed by the artist. It can be criticized that the court explicitly refused to deal with potential copyright infringements in New York solely due to the fact that the claimant, when stating the facts of his case, had not expressly referred to the applicable US law.

• C. F. Nordmeier discusses two Portuguese decisions dealing with the question of international jurisdiction of Portuguese courts with regard to actions against German sellers directed at the selling price. (”Internationale Zuständigkeit portugiesischer Gerichte für die Kaufpreisklage gegen deutsche Käufer: Die Bedeutung des INCOTERM für die Bestimmung des Lieferortes nach Art. 5 Nr. 1 lit. b EuGVVO”) (Tribunal da Relação de Porto, 26.4.2007, Agravo n° 1617/07-3^a Sec., und Supremo Tribunal de Justiça, 23.10.2007, Agravo 07A3119)

• W. Sieberichs addresses the qualification of the German civil partnership as a marriage which is provided in a note of the Belgium minister of justice (”Qualifikation der deutschen Lebenspartnerschaft als Ehe in Belgien”)

• C. Mindach reports on the development of arbitration in the Kyrgyz Republic (”Zur Entwicklung der Schiedsgerichtsbarkeit in der Kirgisischen Republik”)

• H. Krüger/F. Nomer-Ertan present the new Turkish rules on private international law (”Neues internationales Privatrecht in der Türkei”)

Further, this issue contains the following materials:

• The Turkish Statute No. 5718 of 27 November 2007 on private international law and the international law of civil procedure (”Das türkische Gesetz Nr. 5718 vom 27.11.2007 über das internationale Privat- und Zivilverfahrensrecht”)

• Statute of the Kyrgyz Republic on the arbitral tribunals of the Kyrgyz Republic of 30 July 2002, Nr. 135 (”Gesetz der Kirgisischen Republik über die Schiedsgerichte in der Kirgisischen Republik – Bischkek, 30.7.2002, Nr. 135″)

• Première Commission – Résolution – La substitution et l’équivalence en droit international privé – Institut de Droit International, Session de Santiago 2007 – 27 octobre 2007

As well as the following information:

• E. Jayme on the 73rd Session of the Institute of International Law in Santiago, Chile (”Substitution und Äquivalenz im Internationalen Privatrecht – 73. Tagung des Institut de Droit International in Santiago de Chile”)

• S. Kratzer on the annual conference of the German-Italian Lawyers’ Association (”Das neue italienische Verbrauchergesetzbuch – Kodifikation oder Kompilation und Einführung des Familienvertrages (“patto di famiglia“) im italienischen Unternehmenserbrecht – Jahrestagung der Deutsch-italienischen Juristenvereinigung in Augsburg”)

Today, the ECJ delivered its judgment in case C-14/07 (Weiss und Partner).

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

Must Article 8(1) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (’the Regulation’) be interpreted as meaning that an addressee does not have the right to refuse to accept a document pursuant to Article 8(1) of the Regulation if only the annexes to a document to be served are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands?

If the answer to the first question is in the negative:

Must Article 8(1)(b) of the Regulation be interpreted as meaning that the addressee ‘understands’ the language of a Member State of transmission within the meaning of that regulation because, in the exercise of his business activity, he agreed in a contract with the applicant that correspondence was to be conducted in the language of the Member State of transmission?

If the answer to the second question is in the negative:

Must Article 8(1) of the Regulation be interpreted as meaning that the addressee may not in any event rely on that provision in order to refuse acceptance of such annexes to a document, which are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, if the addressee concludes a contract in the exercise of his business activity in which he agrees that correspondence is to be conducted in the language of the Member State of transmission and the annexes transmitted concern that correspondence and are written in the agreed language?

The Court now held in its judgment:

1. Article 8(1) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters is to be interpreted as meaning that the addressee of a document instituting the proceedings which is to be served does not have the right to refuse to accept that document, provided that it enables the addressee to assert his rights in legal proceedings in the Member State of transmission, where annexes are attached to that document consisting of documentary evidence which is not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, but which has a purely evidential function and is not necessary for understanding the subject‑matter of the claim and the cause of action.

It is for the national court to determine whether the content of the document instituting the proceedings is sufficient to enable the defendant to assert his rights or whether it is necessary for the party instituting the proceedings to remedy the fact that a necessary annex has not been translated.

2. Article 8(1)(b) of Regulation No 1348/2000 is to be interpreted as meaning that the fact that the addressee of a document served has agreed in a contract concluded with the applicant in the course of his business that correspondence is to be conducted in the language of the Member State of transmission does not give rise to a presumption of knowledge of that language, but is evidence which the court may take into account in determining whether that addressee understands the language of the Member State of transmission.

3. Article 8(1) of Regulation No 1348/2000 is to be interpreted as meaning that the addressee of a document served may not in any event rely on that provision in order to refuse acceptance of annexes to the document which are not in the language of the Member State addressed or in a language of the Member State of transmission which the addressee understands where the addressee concluded a contract in the course of his business in which he agreed that correspondence was to be conducted in the language of the Member State of transmission and the annexes concern that correspondence and are written in the agreed language.

See for the full judgment the website of the ECJ and with regard to the background of the case our previous post on the opinion of Advocate General Trstenjak which can be found here.

Prof. Rafael Arenas Garcia (Universitat Autònoma de Barcelona and Àrea de Dret Internacional Privat blog) has written an interesting article on the controversial issue of the law applicable to culpa in contrahendo, discussing the conflict rule set out in Art. 12 of the Rome II regulation: “La regulación de la responsabilidad precontractual en el Reglamento Roma II”.

The article (in Spanish) will be published in the forthcoming issue (2007) of the Anuario Español de Derecho Internacional Privado (Spanish Yearbook of Private International Law - AEDIPr.), but it can be downloaded as a .pdf file from the Àrea de Dret Internacional Privat blog.

The English abstract reads as follows:

Article 12 of Rome II Regulation governs the obligations arising out of dealings prior to the conclusion of a contract. It establishes that the law applicable to these obligations shall be the law applicable to the contract. Where it is not possible to determine such law, the second paragraph of article 12 establishes the application of the general connecting factors of Rome II Regulation. It is also possible to choose the law applicable to culpa in contrahendo.

These solutions are not problem-free. The application of the law governing the future contract is not suitable in order to forbid the breaking of negotiations, without giving to the parties the possibility to rely on the law of the country in which the party has its habitual residence to establish that he can broke off negotiations without liability. It can also be criticized that there is no provision about the cases in which a contract between the parties has been concluded in order to rule the negotiations. As a result of this lack of provision in these cases the law governing culpa in contrahendo will be the law of the future contract instead of the law of the contract that rules the negotiations.

This article analyses these problems and the difficult delimitation between contractual and non-contractual fields in matters relating to obligations arising out of dealings prior to the conclusion of a contract. It also includes de lege ferenda proposals.

The Spanish Juzgado de Primera Instancia e Instrucción (Court of First Instance and Preliminary Investigations) No 5 of San Javier has referred the following questions to the European Court of Justice for a preliminary ruling on the interpretation of Reg. (EC) No 1348/2000 (Service Regulation):

1. Does the scope of Regulation (EC) No 1348/2000 extend to the service of extrajudicial documents exclusively by and on private persons using the physical and personal resources of the courts and tribunals of the European Union and the regulatory framework of European law even when no court proceedings have been commenced? Or,
2. Does Regulation (EC) No 1348/2000 on the contrary apply exclusively in the context of judicial cooperation between Member States and court proceedings in progress (Articles 61(c), 67(1) and 65 EC and recital 6 of the preamble to Regulation 1348/2000)?

The case, lodged on 14 January 2008, is pending under C-14/08 (Roda Golf & Beach Resort SL). The referred questions have been published in the OJ n. C 92 of 12 April 2008.

Today, Advocate General Sharpston has delivered her opinion in case C-353/06 (Grunkin and Paul).

The background of the case is as follows: The case concerns a child who was born in Denmark having, as well as his parents, only German nationality. The child was registered in Denmark – in accordance with Danish law – under the compound surname Grunkin-Paul combining the name of his father (Grunkin) and the name of his mother (Paul), who did not use a common married name. After moving to Germany, German authorities refused to recognise the surname of the child as it had been determined in Denmark, since according to German private international law (Art.10 EGBGB) the name of a person is subject to the law of his/her nationality, i.e. in this case German law and according to German law (§ 1617 BGB), parents who do not share a married name shall choose either the father’s or the mother’s surname to be the child’s surname.

The Local Court (Amtsgericht) Niebüll which was called to designate the parent having the right to choose the child’s surname, sought a preliminary ruling of the ECJ on the compatibility of Art.10 EGBGB with Articles 12 and 18 EC-Treaty. However, the ECJ held that it had no jurisdiction to answer the question referred since the referring court acted in an administrative rather than in a judicial capacity (judgment of 27 April 2006, C-96/04). In the following, the parents applied again - without success - to have their son registered with the surname Grunkin-Paul. The parents’ challenge to this refusal was heard, by virtue of German procedural law, by the Amtsgericht Flensburg. The Amtsgericht Flensburg held that it was precluded from instructing the registrar to register the applicants’ son under this name by German law. However, since the court had doubts as to whether it amounts to a violation of Articles 12 and 18 EC-Treaty to ask a citizen of the European Union to use different names in different Member States, the court referred with decision of 16th August 2006 (69 III 11/06) the following questions to the ECJ for a preliminary ruling:

In light of the prohibition on discrimination set out in Article 12 of the EC Treaty and having regard to the right to the freedom of movement for every citizen of the Union laid down by Article 18 of the EC Treaty, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?

Advocate Generel Sharpston now held in her opinion that the Court should answer the question raised by the Amtsgericht Flensburg as follows:

– a choice of law rule under which a person’s name is to be determined in accordance with the law of his nationality is not in itself incompatible with Articles 12, 17 or 18 EC;

– however, any such rule must be applied in such a way as to respect the right of each citizen of the Union to move and reside freely in the territory of the Member States;

– that right is not respected if such a citizen has been registered under one name in accordance with the applicable law of his place of birth, before it becomes necessary to register his name elsewhere, and is subsequently required to register a different name in another Member State;

– consequently, the authorities of a Member State may not, when registering the name of a citizen of the Union, automatically refuse to recognise a name under which he has already been lawfully registered in accordance with the rules of another Member State, unless recognition would conflict with overriding reasons of public interest which admit of no exception.

See for the full opinion the website of the ECJ. See further on this case also our previous posts on the judgment of the Court of 27 April 2006 which can be found here as well as on the referring decision of the Amtsgericht Flensburg which can be found here.

The contributions presented at the 19th Journée de droit international privé, held in March 2007 at the Swiss Institute of Comparative Law (ISDC) and dedicated to the new Lugano Convention, have been published by Schulthess, under the editorship of Andrea Bonomi, Eleanor Cashin Ritaine and Gian Paolo Romano: La Convention de Lugano. Passé, présent et devenir.

Here’s the table of contents (available as a .pdf file on the ISDC’s website):

Avant-propos (Eleanor Cashin Ritaine)

Première session (Présidence: Eleanor Cashin Ritaine)

• Monique Jametti Greiner: L’espace judiciaire européen en matière civile: la nouvelle Convention de Lugano;
• Alexander R. Markus: La compétence en matière contractuelle selon le règlement 44/2001 «Bruxelles I» et la Convention de Lugano revisée à la suite de l’arrêt CJCE Color Drack;
• Eva Lein: La compétence en matière contractuelle: un regard critique sur l’article 5 § 1er de la nouvelle Convention de Lugano;
• Andrea Bonomi: Les contrats conclus par les consommateurs dans la Convention de Lugano révisée;
• Anne-Sophie Papeil: La Convention de Lugano et la protection du consommateur;
• Hélène Gaudemet-Tallon: Quelques réflexions à propos de trois arrêts récents de la Cour de cassation française sur l’art. 5-1 et de l’avis 1/03 de la Cour de justice des Communautés sur les compétences externes de la Communauté.

Deuxième session (Présidence: Andrea Bonomi)

• Jolanta Kren Kostkiewicz: Rechtshängigkeit und Konnexität;
• Anton K. Schnyder: Anerkennung und Vollstreckung ausländischer Entscheidungen;
• Valentin Rétornaz: Les limites à l’application autonome de la Convention de Lugano. Aperçu au travers de l’exequatur en Suisse des ordonnances rendues par un juge de la mise en état français;
• Gian Paolo Romano: Principe de sécurité juridique, système de Bruxelles I / Lugano et quelques arrêts récents de la CJCE.

Annex: Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Title: La Convention de Lugano. Passé, présent et devenir. Actes de la 19^e Journée de droit international privé du 16 mars 2007 à Lausanne, edited by Andrea Bonomi, Eleanor Cashin Ritaine and Gian Paolo Romano, Schulthess (Série des publications de l’ISDC, vol. 59), Zürich, 2007, 209 pages.

ISBN: 978-3-7255-5538-3. Price: CHF 75.

(The official text of the new Lugano Convention has been published in the Official Journal of the European Union n. L 339 of 21 December 2007, attached to the Council decision on its signing on behalf of the Community. On 29 February 2008 the Commission presented a Proposal for a Council decision concerning the conclusion of the Convention - COM(2008) 116 fin.)

The April 2008 issue of the Journal of Private International Law has just been published. The contents are (click on the links to view the abstracts on the Hart Publishing website):

Articles

M. Keyes, “Statutes, Choice of Law, and the Role of Forum Choice”

Z. Tang, “The Interrelationship of European Jurisdiction and Choice of Law in Contract”

C. Kotuby, “Private International Law before the United States Supreme Court: Recent Terms in Review”

M. Pauknerova, “Private International Law in the Czech Republic: Tradition, New Experience and Prohibition of Discrimination of Grounds of Nationality”

N. Dariescu & C. Dariescu, “The Difficulties of Solving Litigation Concerning the Patrimonial Effects of a Marriage Between an Italian Citizen and a Romanian Citizen”

Review Articles

R. Michaels, “Public and Private International Law: German Views on Global Issues - S Leible and M Ruffert (eds) Völkerrecht und IPR“

CONFLICT OF LAWS .NET readers are entitled to a 10% discount when subscribing to the Journal of Private International Law. The subscription rates for the Journal are already very good for both institutions and individuals, and our discount makes it a ridiculously good deal. Download the order form (PDF) today to receive your discount.

Anatol Dutta (Hamburg) has written an article on the German reference for a preliminary ruling in Seagon v. Deko Marty Belgium NV (Case C-339/07): Jurisdiction for insolvency-related proceedings caught between European legislation, Lloyd’s Maritime and Commercial Law Quarterly (LMCLQ) 2008, p. 88-96.

Here is the abstract:

The stock of European legislation in the area of private international law is growing steadily. The pointillist technique employed by the European legislator, however, necessarily entails friction between the different legislative acts. One illustrative example, which shall be examined in this article, concerns jurisdiction for insolvency-related proceedings. Such individual proceedings which derive directly from the bankruptcy and are closely connected to collective insolvency proceedings could be governed by different European regulations or even by national law.

See with regard to this reference also our previous post which can be found here.

The University of Heidelberg Law School awards in cooperation with the Max-Planck-Institute for Comparative Public Law and International Law Doctoral Research Positions (starting June 2008, duration: up to 3 years) for studies leading to a Doctorate in Law (Dr. jur.) with the following research objective:

How can the success of international dispute resolution be explained? How must successful dispute resolution be organized? The topic includes private and public international law (arbitration, mediation) as well as international criminal law.

For more information on the research program, the coordinators, the stipends as well as requirements and the application procedure see the website of the Institute for Private International Law, University of Heidelberg which can be found (in English) here.

The papers presented at the international conference held in March 2007 at the University Carlo Cattaneo of Castellanza (see our previous post), and a final report drafted on the basis of the discussion that arose in the colloquium, have been published by CEDAM, under the editorship of Alberto Malatesta, Stefania Bariatti and Fausto Pocar: “The External Dimension of EC Private International Law in Family and Succession Matters“.

Here’s an excerpt from the Foreword of the volume:

Under the 2005 Framework Programme for Judicial Cooperation in Civil Matters, the European Commission funded an International Research Project presented by the University Carlo Cattaneo of Castellanza on the EC harmonisation of Private International Law and the external relations in family and succession law.

A group of scholars coming from various European countries agreed to undertake the task of carrying out an in-depth analysis of the scope of the Community powers in the field of Private International Law in the above matters, with special reference to relationships connected with third States.

The focus on family and succession law was deemed crucial in the light of the many initiatives of the European Community in this field pursuant to Articles 61(c) and 65 of the EC Treaty, and of the hot debate they raised about the need itself of such measures and their content. On the other hand, in the course of the Research Project, the European Court of Justice rendered the long-awaited Lugano Opinion (Opinion No 1/03), that provided some general guidelines about the future external dimension of the Community action in the conflicts of laws and its role in the international community.

And this is the table of contents (available as a .pdf file on the publisher’s website):

Introductory Speech - Fausto Pocar: The “Communitarization” of Private International Law and its Impact on the External Relations of the European Union;

First Part - EC EXTERNAL RELATIONS AND PRIVATE INTERNATIONAL LAW

• Alberto Malatesta: The Lugano Opinion and its Consequences in Family and Succession Matters;
• Andrea Santini: The Doctrine of Implied External Powers and Private International Law Concerning Family and Succession Matters;
• David McClean: Bilateral Agreements with non-Member States after the Lugano Opinion;
• Stefania Bariatti: Bilateral Agreements with non-Member States after the Lugano Opinion: Some Procedural Issues.

General Discussion

• Laura Tomasi: The Application of EC Law to non-Purely intra-Community Situations.

- - - - - - - - -

Second Part - GENERAL PROBLEMS OF EC PRIVATE INTERNATIONAL LAW WITH REGARD TO RELATIONS WITH THIRD STATES

Section 1: Jurisdiction, Recognition and Enforcement of Judgments and Administrative Cooperation

• Alegría Borrás: Lights and Shadows of Communitarisation of Private International Law: Jurisdiction and Enforcement in Family Matters with regard to Relations with Third States;
• Etienne Pataut: International Jurisdiction and Third States: A View from the EC in Family Matters;
• Andrea Bonomi: The Opportunity and the Modalities of the Introduction of Erga Omnes EC Rules on Jurisdiction;
• Marta Pertegás: Recognition and Enforcement of Judgments in Family and Succession Matters;
• Roberto Baratta: Short Remarks on EC Competence in Matters of Family Law;
• William Duncan: Administrative Cooperation with regard to the International Protection of Children.

General Discussion

• Carola Ricci: Habitual Residence as a Ground of Jurisdiction in Matrimonial Disputes: From Brussels II-bis to Rome III;
• Gaetano Vitellino: European Private International Law and Parallel Proceedings in Third States in Family Matters.

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Section 2: Applicable Law

• Kurt Siehr: Connecting Factors, Party Autonomy and Renvoi;
• Peter McEleavy: Applicable Law and Relations with Third States: The Use and Application of Habitual Residence;
• Th. M. de Boer: Unwelcome Foreign Law: Public Policy and Other Means to Protect the Fundamental Values and Public Interests of the European Community;
• Johan Meeusen: Public Policy in European Private International Law: In Response to the Contribution of Professor Th. M. de Boer on “Unwelcome Foreign Law”;
• Carmen Parra Rodríguez: Characterisation and Interpretation in European Family Law Matters;
• Luigi Fumagalli: Characterization in European Private International Law: Short Notes on the Interpretation Process from Independence to Functionality and Return (to the Tradition).

General Discussion

• Cristina Mariottini: The Internal and External Dimensions in the Harmonization of European Conflict Rules on the Administration of Estates.

Final Report: Alberto Malatesta.

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Title: The External Dimension of EC Private International Law in Family and Succession Matters, edited by Alberto Malatesta, Stefania Bariatti and Fausto Pocar, CEDAM (Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale, n. 71), Padova, 2008, XIV-392 pages.

ISBN: 978-88-13-27276-0. Price: EUR 36.

(Many thanks to Gaetano Vitellino, University “Carlo Cattaneo” of Castellanza, for the tip-off)

As part of the BIICL’s 2007-2008 Seminar Series on Private International Law the BIICL organizes on Thursday 17 April 2008 17:30 to 19:30 (at British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP) a seminar titled “Financial Groups: A Fragmented EU Insolvency Regime”. The seminar will deal with cross-border insolvency of financial groups; In the event of the insolvency of a financial group, within the EU, banks, insurance companies and other financial institutions are subject to different insolvency regimes. The purpose of the seminar is to analyse and explain how the different insolvency regimes might operate in the event of a default triggering the insolvency of a group of financial companies. Jurisdiction to open main insolvency proceedings may be allocated to the state in which the centre of main interests of the legal entity is located (under the EU Insolvency Regulation) or where the registered office and/or head office is based (e.g. under the EU Directive on Winding up of Credit Institutions). When cross-border insolvency extends beyond the EU, the UNCITRAL Model Law on Cross-Border Insolvency may come into play. The result is a complicated patchwork of regulation, which does not fit easily with the way in which multinational financial groups conduct cross-border business.

Gabriel Moss QC and John Breslin, an Irish barrister, will tackle a case study involving the collapse of a financial group (see below), following a brief description of the legislative framework by Jane Welch, and an outline of the history of the EU Insolvency Regulation and in particular the development and interpretation of the concept of “centre of main interests” by Professor Ian Fletcher. The seminar is chaired by Mr. Justice David Richards. The case study that will be analysed and discussed involves a group containing a UK bank and its Irish fund-raising subsidiary, a management company incorporated in Gibraltar and a UK insurance company. The sub-prime crisis leads to the insolvency of the Irish subsidiary and the other group companies. For more information about the seminar, its Chair, speakers and sponsor, have a look at the website.

Following our post on the release of the final text of the Rome I Regulation, an internal document by the General Secretariat of the Council to the Permanent Representatives Committee (COREPER) confirms that the new Regulation will be soon adopted by the Council (doc. n. 7689/08 of 7 April 2008):

5. The Permanent Representatives Committee is therefore asked to confirm agreement and advise the Council to:

• adopt the Regulation, as set out in PE-CONS 3691/07 JUSTCIV 334 CODEC 1401, as an “A” item at a forthcoming meeting;
• decide to enter in the minutes of that meeting the statements set out in the addendum to this note.

After being signed by the President of the European Parliament, the President of the Council and the Secretaries-General of the two institutions, the legislative act will be published in the Official Journal of the European Union.

Quite surprisingly, as regards the participation of the United Kingdom in the adoption of the Regulation, a footnote of the document states:

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation.

This is probably a mistake, since the United Kingdom has not so far officially opted in (see Recital n. 45 of the Regulation), and a consultation paper on the matter was launched last week by the Ministry of Justice (see our post here).

[UPDATE on the position of the United Kingdom: a revised version of the document has been released - doc. n. 7689/1/08 REV 1 of 9 April 2008 -, where it is clearly stated that, at present, “[i]n accordance with Articles 1 and 2 of the Protocol […] and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application“]

Two statements are set out in the Addendum (doc. n. 7689/08 ADD 1 of 7 April 2008): one by the Council and the Commission, relating to the new conflict rule on insurance contracts (Art. 7 of the new Regulation), and one by the French delegation, on the consistency between the rule on applicable law in consumer contracts (Art. 6) and future revisions of Brussels I Regulation as regards the provisions relating to jurisdiction in the same matter (Section 4, Articles 15-17 of Brussels I Reg.). Here’s the text:

DECLARATION BY THE COUNCIL AND THE COMMISSION RELATING TO THE LAW APPLICABLE TO INSURANCE CONTRACTS

The Council and the Commission note that the rules contained in Article 7 essentially reflect the legal situation as regards applicable law as presently included in the insurance Directives. Any future substantive revision of the present regime should take place in the context of the review clause of this Regulation.

DECLARATION BY THE FRENCH DELEGATION RELATING TO ARTICLE 6 OF ROME I ON THE LAW APPLICABLE TO CONSUMERS

In view of the importance of conflict-of-law rules in international private law, and in order to achieve the objective, laid down in Article 153 of the EC Treaty, of ensuring a high level of consumer protection within the Community, France wishes to state that, in the revision of Regulation 44/2001 EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the provisions relating to jurisdiction (section 4 of Brussels I) must be consistent with Article 6 of the Regulation applicable to contractual obligations (Rome I), concerning the law applicable to consumer contracts.

Hoge Raad, 4 April 2008, Zuid-Chemie/Philippo’s Mineralenfabriek Nr. C06/310HR (link is to decision in Dutch).

On Friday 4 April, the Dutch Supreme Court (Hoge Raad) made a preliminary reference to the ECJ, with regard to the interpretation of article 5(3) of Regulation 44/2001 (jurisdiction in matters relating to tort). What follows is a short description of the facts as they emerge from the Supreme Court’s decision and a provisional translation of the referred questions.

In July 2000, Zuid-Chemie, a producer of fertilizers in Sas van Gent (NL), bought two cargoes of ‘micromix’ from HCI Chemicals Benelux in Rotterdam (NL). HCI, who were unable to produce this micromix on their own, ordered the product from Philippo’s, in Essen (Belgium), and delivered all necessary ingredients bar one at Philippo’s factory. In consultation with HCI, Philippo’s bought the missing ingredient (zinc sulphate) from a company called Poortershaven, established in Rotterdam (NL). Philippo’s produced the micromix at her factory in Essen, where Zuid-Chemie took delivery. Zuid-Chemie, subsequently, used the micromix in multiple cargoes of fertilizer-products, some of which were sold to (foreign) buyers. It has become clear since then that the zinc sulphate obtained from Poortershaven was contaminated with cadmium, as a result of which the produced fertiziler is unusable. Zuid-Chemie has claimed damages in tort from Philippo’s in the District Court (Rechtbank) in Middelburg (NL) . Philippo’s alleged delict (“onrechtmatige daad”) consists of having produced a product that has caused damage in the course of its normal use.

Philippo’s argues that the Dutch court does not have jurisdiction, because in its view the place of delivery of the contaminated micromix - in Essen (Belgium) – should be regarded as ‘the place where the harmful event occurred’ (art. 5(3) Brussels I Regulation). Zuid-Chemie argues that the place where the harmful event occurred is the place where different components (including the contaminated micromix) were mixed into the final product, which was at its factory in Sas van Gent (NL).

At first instance, the District Court noted that ‘the place where the harmful event occurred’ could be both the ‘Handlungsort’ and the ‘Erfolgsort’ (both terms used in the Dutch text, as is common in Dutch decisions), and concluded that Essen was the place where Zuid-Chemie suffered initial damage (“initiële schade”) because that was the place where the contaminated micromix was delivered ex works. The Court of Appeal in The Hague (Gerechtshof ‘s-Gravenhage) has upheld this decision, noting that the place of production of the contaminated micromix (Essen) should be regarded as the ‘Handlungsort’.

In his Opinion in the Case (of 1 February 2008), Advocate General Strikwerda, observed that the ECJ had not yet pronounced itself on the question of whether “the distinction between ‘Handlungsort’ and ‘Erfolgsort’ is limited to situations involving a tortious act which leads to physical damage to persons or property” and whether, “in the case of tortious acts which cause non-physical damage and purely economic loss no such distinction should be made, even where this damage is the direct (initial) consequence of the damage-causing act (“schadebrengende feit”)” (par. 14).

Following the suggestion of the Advocate General, the Supreme Court, in its decision of 4 April 2008, referred to the ECJ the following questions:

1. In the case of a tortious act as alleged by Zuid-Chemie, what damage should be regarded as the initial damage resulting from this act: the damage resulting from the delivery of the defective product, or the damage resulting in the course of the normal use for which this product was intended?
2. In case the latter option is correct: may the place where this damage occurs be regarded as ‘the place where the harmful event occurs’ only where the damage consists of physical damage to persons or property, or is this allowed also when (for the time being) merely economic loss has been suffered?

As we noted in a previous post, the agreement reached by the European Parliament and the Council on the Rome I Regulation was transposed by the EP in its amendments at first reading to the initial Commission’s Proposal. Once revised by the lawyer-linguists, this modified version of the Regulation would have been adopted by the Council, ending the codecision procedure.

The text resulting from the legal and linguistic revision is now available in all languages of the EU in the Register of the Council (doc. PE-CONS 3691/07 of 31 March 2008). Given the heading of the document (European Parliament and the Council), it can be assumed that this is the final version of the Rome I Regulation on the law applicable to contractual obligations.

According to current schedule (see the Rome I OEIL page), the text should be approved by the JHA Council in its meeting of 17/18 April 2008. Further information will be posted as soon as it is available.

A very interesting volume, collecting the contributions presented by prominent European and Japanese scholars at a conference organised in 2007 by the Max Planck Institute for Private Law in Hamburg, has been recently published by Mohr Siebeck: Japanese and European Private International Law in Comparative Perspective. A presentation of the book, and the TOC, are available on the MPI’s website:

Edited by Jürgen Basedow, Harald Baum und Yuko Nishitani, this conference volume is based on a symposium of the same name that was held in March 2007 at the MPI for Private Law in Hamburg and represents the first comprehensive analysis of the new Japanese private international law in any western language.

The idea of national codification is advancing on a global scale in conflict of laws. A large number of legislative projects dealing with codifying and modernizing private international law, both on the national and the supranational level, have been launched in the past few years. Among such recent initiatives, the advances taken by the European and the Japanese legislators are particularly reflecting these developments. On January 1, 2007, the new Japanese ‘Act on General Rules for Application of Laws’ entered into force replacing the outdated conflict of laws statute of 1898. This major reform finds its parallels in the current efforts of the European Union to create a modern private international law regime for its member states.

This volume presents the first comprehensive analysis of the new Japanese private international law available in any western language and contrasts it with corresponding European developments. Most of the contributors from Japan are scholars who were actively involved in and responsible for preparing the new Act. All of them are renowned experts in the field of private international law. Leading European experts in the conflict of laws supplement the Japanese analyses with comparative contributions reflecting the pertinent discussion of parallel endeavours in the EU. To guarantee better understanding, English translations of both the present and the former Japanese statutes have been added.

Table of Contents:

I. General Introduction
Jürgen Basedow: The Recent Development of the Conflict of Laws - Trevor C Hartley: The Brussels Regulation and Non-Community States - Masato Dogauchi: Historical Development of Japanese Private International Law - Hironori Wanami: Background and Outline of the Modernization of Japanese Private International Law

II. Contractual Obligations
Yuko Nishitani: Party Autonomy and Its Restrictions by Mandatory Rules in Japanese Private International Law - Catherine Kessedjian: Party Autonomy and Characteristic Performance in the Rome Convention and the Rome I Proposal - Fausto Pocar: Protection of Weaker Parties in the Rome Convention and the Rome I Proposal

III. Assignment of Receivables
Aki Kitazawa: Law Applicable to the Assignment of Receivables in Japan (Nihon ni okeru saiken jôto no junkyo-hô) - Eva-Maria Kieninger: General Principles on the Law Applicable to the Assignment of Receivables in Europe

IV. International Company Law
Dai Yokomizo: International Company Law in Japan - Sylvaine Poillot-Peruzzetto: International Company Law in the ECJ Decisions - Daniel Zimmer: The Proposal of the Deutscher Rat für Internationales Privatrecht

V. Non-Contractual Obligations
Toshiyuki Kono: Critical and Comparative Analysis of the Rome II Regulation on Applicable Laws to Non-contractual Obligations and the New Private International Law in Japan - Thomas Kadner Graziano: General Principles of Private International Law of Tort in Europe - Marc Fallon: The Law Applicable to Specific Torts in Europe

VI. International Family Law
Yasuhiro Okuda: Divorce, Protection of Minors, and Child Abduction in Japan’s Private International Law - Maarit Jänterä-Jareborg: Jurisdiction and Applicable Law in Cross-Border Divorce Cases in Europe - Alegría Borrás: Protection of Minors and Child Abduction under the Hague Conventions and the Brussels II bis Regulation

VII. International Civil Procedure Law
Yoshihisa Hayakawa: International Adjudicative Jurisdiction in Japan - Dieter Martiny: Recognition and Enforcement of Foreign Judgments in Germany and Europe

Annex I
Major European Community Legislation in Private International Law

Annex II
Japanese Legislation in Private International Law

Title: Japanese and European Private International Law in Comparative Perspective, edited by Jürgen Basedow, Harald Baum, and Yuko Nishitani, Mohr Siebeck (Materialien zum ausländischen und internationalen Privatrecht/48), Tübingen, March 2008, XVIII + 434 pages.

ISBN: 978-3-16-149547-2. Price: euro 89.

The Academy of European Law (ERA) organizes a number of private international law related conferences, seminars and courses during the spring and summer of 2008:

3rd European Forum for In-house Counsel, Brussels, 24-25 Apr 2008

• Description from the ERA website: For the third consecutive year, ERA and ECLA are organising the European Forum for In-House Counsel, combining the pragmatism of an in-house lawyer association with the expertise of a first-class European training institute. The European Forum for In-House Counsel provides a forum for the exchange of practical experience, knowledge and views between all in-house counsel and other lawyers involved in business affairs. The aim is to provide in-house counsel, through expert input, with a comprehensive overview of and a practical insight into issues of European Community law with which an in-house counsel is confronted. The latest developments and the recent relevant case law of the Community courts in areas such as European competition law, European company law, European private law, as well as the topic of legal privilege, will be analysed during the forum. Interaction among participants will be encouraged through periods of discussion and case studies.

• Target audience: In-house counsel and lawyers specialised in business affairs

Cross-Border Debt Recovery, Trier, 15-16 May 2008

• Description from the ERA website: Dr Angelika Fuchs (ERA) and Professor Burkhard Hess (University of Heidelberg) are organizing a conference on Cross-Border Debt Recovery. Freezing or “attaching” a debtor’s bank account(s) is a very effective way for creditors to recover the amount owed to them. Most Member States have legislation, which provides for the attachment of bank accounts. Debtors can, however, transfer funds very quickly to other accounts that the creditor may not know about. The creditor is often not able to block such movements of funds as quickly and therefore loses a powerful weapon against recalcitrant debtors. The European Commission feels that problems of cross-border debt recovery are an obstacle to the free movement of payment orders within the European Union and to the proper functioning of the internal market. Late payment and non-payment are a risk for businesses and consumers alike. The Commission therefore proposes the creation of a European system for the attachment of bank accounts. The consultation process initiated by the Green Paper on the attachment of bank accounts has inspired a vivid debate among practitioners, governments and academics. Furthermore, a second Green Paper on measures enhancing the transparency of the debtor’s assets will be published soon.

• Target audience: Lawyers in private practice, in-house lawyers, stakeholders, representatives of national authorities and academics specialised in civil procedure and banking law

Recent Developments in Private International Law and Business Law, Trier, 5-6 Jun 2008

• Description from the ERA website: Dr Angelika Fuchs, ERA, organizes a seminar on recent developments in private international law and business law. Private international law and business law continue to be characterised by growing Europeanisation. The purpose of this seminar will be to present the latest developments in both legislation and jurisprudence in the following areas: Brussels I Regulation and anti-suit injunctions; Intellectual property and conflict of laws; New Regulation (EC) No. 1393/2007 on the service of documents; New Directive on certain aspects of mediation in civil and commercial matters; New Regulation (EC) on the law applicable to contractual obligations (“Rome I”); New Regulation (EC) No. 864/2007 on the law applicable to non?contractual obligations (“Rome II”); Trends in European company law: from Daily Mail to Sevic and Cartesio; Major decisions on cross-border insolvency.

• Target audience: Lawyers in private practice, in-house counsel in companies, associations, ministries and other public authorities, judges, notaries, academics

Summer Course: European Company Law, Trier, 18-20 Jun 2008

• Description from the ERA website: Tomasz Kramer, ERA, organizes a summer course on European company law. For the second time European company law will feature in ERA’s series of summer courses in Trier. The impact of enlargement and globalisation on the internal market creates a special context for individuals and companies that operate across borders. The European Commission has launched a wide-ranging strategy to adapt and harmonise European company law to meet these new challenges. European law has considerably influenced the shape of modern company law in EU member states. Directives and the case law of the European Court of Justice have helped to harmonise national laws and regulations have introduced new legal forms for businesses. The ‘Europeanisation’ of company law continues apace. This course will offer an introduction to the principles and framework of European company law. It will provide a comprehensive overview of subjects including the formation of different types of companies, corporate governance and management options, capital requirements, shareholders’ rights and insolvency. In addition, topics such as corporate restructuring and mobility as well as the characteristics of transnational financial vehicles will be addressed, albeit taking into consideration national particularities. The course will address current challenges and the latest legislative proposals. The analysis of ECJ case law will be an essential element of the course. Participants will have the opportunity to take a preparatory online e-learning module.

• Target audience: Young lawyers in private practice, public administration or in-house counsel, as well as advanced or postgraduate students, academics, economists or auditors seeking a detailed introduction to European company law

Summer Course: European Private Law, Trier, 30 Jun-4 Jul 2008

• Description from the ERA website: Nuno Epifânio, ERA, organizes a summer course on European private law. The purpose of this course is to introduce lawyers to European private law. Among the areas covered during the seminar will be: European Civil Procedure; Private International Law; Contract Law; Insolvency Law; Financial Services; Consumer Protection. This course should prove of particular interest to lawyers who wish to specialise in or acquire an in-depth knowledge of European private law. A general knowledge of EU law is suitable but no previous knowledge or experience in European Private Law is required to attend this course. Participants will be able to deepen their knowledge through case-studies and workshops. The course includes a visit to the European Court of Justice in Luxembourg. Participants will have the opportunity to take a preparatory onlinee-learning module.

• Target audience: Lawyers in private practice, in-house counsel, representatives of national authorities and academics

The first issue of French Journal du Droit International (also known as Clunet) will be released shortly. It contains four articles dealing with conflict issues.

The first is authored by Pascal de Vareilles-Sommieres, who teaches at Paris I University, and Anwar Fekini, who is a practising lawyer in Paris and Tripoli. It discusses The New International Oil Exploration and Sharing Agreements in Libya (Les nouveaux contrats internationaux d’exploration et de partage de production pétrolière en Libye. Problèmes choisis). The English abstract reads:

The article intends to study the legal regime of the exploration and production sharing agreements (EPSAs) entered into by the Libyan National Oil Company with foreign oil companies since 2005. In this first part, the authors focus on legal sources governing Libyan EPSAs. Though admitting the prominent part of Libyan law chosen by the parties in a choice of law provision among these sources, the authors wonder whether the parties simultaneously intended to get other possible legal sources combined with it. A possible choice of public international law is first examined. Scrutinising the parties intention, the article comes to the conclusion that no sign pointing to an internationalisation of the EPSAs appears in the agreements. As a consequence, international contract law is not to be combined with Libyan law as far as the legal regime of the EPSAs is concerned. The study then looks for possible hints of the parties intention to get the lex mercatoria involved in the regulation of their agreement along with Libyan law. Several signs are brought to the light showing the parties’ common intention to let international trade usages interfere with Libyan law to be combined with it in order to finally make up the lex contractus.

The second part of this study will be published this year in a forthcoming issue of this Journal.

The second article is a study of the Rome II Regulation (Le règlement (CE) n° 864/2007 du 11 juillet 2007 sur la loi applicable aux obligations non contractuelles (« Rome II »)). It is authored by Carine Briere, who lectures at Rouen University. Here is the English abstract:

The aim of this article is to present Regulation (EC) n° 864/2007 known as « Rome II », which is the result of a long process of elaboration. Codecision procedure has been used to adopt this text which harmonises rules of conflict of laws regarding noncontractual obligations to improve predictability concerning the law applicable. It constitutes a new step towards the construction of a private international community law. The Regulation follows current private international law trends that give competence to the law of the country in which the damage arises. Nevertheless, an escape clause introduces a flexible approach when the lex loci damni seems to be inappropriate. Specific rules for certain torts and restitutionary obligations are also laid down. They derogate the general rule. Moreover, the Regulation upholds in an extensive way the choice of law principle and determines the link with other norms such as the Hague Conventions on which it does not take precedence.

However, this Regulation, adopted