Conflict of Laws .net

Today, the ECJ delivered the judgment in case C-462/06 (Laboratoires Glaxosmithkline) dealing with the interpretation of Art. 6 point 1 and Section 5 of Chapter II of the Brussels I Regulation. The French Cour de Cassation had referred the following question to the ECJ for a preliminary ruling:

Does the rule of special jurisdiction stated in Article 6(1) 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, by virtue of which a person domiciled in a Member State may be sued ‘where he is one of a number of defendants, in the courts for the place where any of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’, apply to proceedings brought by an employee before a court of a Member State against two companies belonging to the same group, one of which, being the one which engaged that employee for the group and refused to re-employ him, is domiciled in that Member State and the other, for which the employee last worked in non-Member States and which dismissed him, in another Member State, when that applicant relies on a clause in the employment contract to claim that the two defendants were his co-employers from whom he claims compensation for his dismissal or does the rule in Article 18(1) of the regulation, by virtue of which, in matters relating to individual contracts of employment, jurisdiction is to be determined by Section 5 of Chapter II, exclude the application of Article 6(1), so that each of the two companies must be sued before the courts of the Member State where it is domiciled?

Thus, the Cour de Cassation essentially asked whether Art. 6 point 1 Brussels I Regulation in respect of co-defendants is applicable to an action brought by an employee against two companies established in different Member States which he considers to have been his joint employers.

The Court answered the question to that effect that

the rule of special jurisdiction provided for in Article 6, point 1, of the Regulation cannot be applied to a dispute falling under Section 5 of Chapter II of that regulation concerning the jurisdiction rules applicable to individual contracts of employment.

The Court states that neither a literal nor a teleological interpretation of the Regulation leads to allowing Art. 6, point 1 to apply in employment matters: Section 5 does not refer to Art. 6, point 1 - in contrast to Article 4 and Article 5, point 5, of the Regulation, the application of which is preserved expressly by Article 18(1) thereof. Thus, a literal interpretation shows that Section 5 of Chapter II precludes any recourse to Art. 6, point 1. Further, the Court emphasises that rules of special jurisdiction have to be interpreted strictly and cannot go beyond the cases expressly envisaged by the Regulation.

See for the full judgment as well as AG Maduro’s opinion the website of the ECJ.

In November 2007, the ECJ delivered its first judgment on the Brussels II bis Regulation (C-435/06, Applicant C).

Anatol Dutta (Hamburg) has now commented on this judgment in the German legal journal “Zeitschrift für das gesamte Familienrecht” (FamRZ): “Staatliches Wächteramt und europäisches Kindschaftsverfahrensrecht. Die Anwendbarkeit der Brüssel-IIa-Verordnung auf staatliche Maßnahmen zum Schutz des Kindes”, FamRZ 2008, 835 et seq.

See with regard to the reviewed case also our previous posts on the judgment and AG Kokott’s opinion.

The Commonwealth Attorney-General has recently released a Consultation Draft of the Personal Property Securities Bill 2008 and an accompanying commentary. The Bill aims to provide a national system to regulate security interests in all property other than land, and would replace over 70 Commonwealth, State and Territory enactments.

As one can imagine, the Bill contains substantial provisions relating to choice of law (Part 2 Div 7) and jurisdiction (Part 11 Div 5).

In general, Australian law will apply to security over property located in Australia (s 45), and in other circumstances the law of the place where the grantor is located will apply (s 46). Specific rules are proposed regarding foreign intellectual property (s 47), minerals (s 48), investment instruments and non-negotiable documents of title (s 49), investment entitlements (s 50), and bank accounts (s 51). Rules will also cover circumstances where property is brought into or taken out of Australia (ss 52-33), or where the grantor relocates to another jurisdiction (s 54).

The Bill appears to envisage that foreign law may govern some aspects of personal property securities that are otherwise regulated by the Bill. If foreign law applies, the Bill only picks up the relevant foreign law governing the rights, obligations and duties of debtor (or grantor of security) against the secured party in relation to collateral (i.e. the property that is subject to the security) (s 43). This would, it seems, exclude aspects of the debtor-creditor relationship unrelated to security, and may also exclude foreign choice of law rules. However, the operation of these provisions is not entirely clear.

So far as jurisdiction is concerned, the Bill is unusual among Commonwealth enactment in excluding the operation of s 39B of the Judiciary Act 1903, and the Jurisdiction of the Courts (Cross-Vesting) Act 1987. Rather, the Bill contains its own provisions investing Australian state and federal courts with jurisdiction (s 261) and providing for the transfer of proceedings between courts (s 263).

The Attorney-General is seeking public comment on the Bill as a whole, and there are also specific questions raised for discussion. Questions relating to private international law include:

• Does the common law [relating to jurisdiction of Australian courts] provide a sufficient jurisdiction for courts to act in relation to security interests?
• To what extent should the Bill implement rules consistent with the Hague Securities Convention?
• Are there any aspects of the Hague Securities Convention that should be omitted from the Bill (Australia could not adopt the Convention unless Australia’s domestic law was consistent with the convention).
• Should the Bill require a securities intermediary who, in Australia, offers investment entitlements governed by the law of another country to operate an office in that other country of the kind contemplated by the Hague Securities Convention (and to comply with any licensing and other regulatory requirements that may exist in that other country concerning the operation of offices of that kind)?

The deadline for submissions is August 15th 2008. More information can be found here.

Armacel Pty Ltd v Smurfit Stone Container Corporation [2008] FCA 592 is a recent case in which the judgment of Jacobson J in the Australian Federal Court, though short, raises a number of interesting issues.

The case arose out of a dispute between Armacel Pty Ltd, an Australian company, and Smurfit Stone Container Corporation, a US company, concerning an intellectual property licensing agreement governed by the law of New South Wales, Australia. Shortly before Armacel instituted the Australian proceedings, Smurfit instituted proceedings against Armacel in a US District Court concerning the same dispute. The US Court decided that, applying US principles of contractual interpretation as required by US principles of private international law, a New South Wales jurisdiction clause in the licensing agreement was not an exclusive jurisdiction clause. Accordingly, it dismissed Armacel’s motion for dismissal of the US proceedings for want of jurisdiction. Smurfit then applied for a stay of the Australian proceedings on forum non conveniens grounds.

Jacobson J refused to allow Armacel to re-argue the question of whether the jurisdiction clause was an exclusive jurisdiction clause. Armacel was held to be estopped from raising that issue, since it had already been the subject of a decision in the US proceedings. This was so even though that decision was made by reference to US principles of contractual interpretation as the law of the forum, whereas Jacobson J suggested it ought to have been made by reference to New South Wales law as the governing law of the contract — the estoppel operated regardless of any such criticism.

This conclusion was important because, absent the estoppel, Jacobson J would have construed the clause as an exclusive jurisdiction clause. The clause stated:

This Agreement must be read and construed according to the laws of the State of New South Wales, Australia and the parties submit to the jurisdiction of that State. If any dispute arises between the Licensor and the Licensee in connection with this Agreement or the Technology, the parties will attempt to mediate the dispute in Sydney, [New South Wales,] Australia.

The parties also expressly agreed that New South Wales law would prevail in the event of a conflict between those laws and the laws of the jurisdiction in which the equipment the subject of the licensing agreement was located. Perhaps somewhat surprisingly, Jacobson J concluded that even though the jurisdiction clause was not exclusive on its face, it should be construed that way. This was because the parties negotiated at arm’s length, must be presumed to have intended some certainty as to where their disputes would be litigated, had agreed to compulsory mediation in New South Wales, and had sought to avoid the circumstance that a New South Wales Court might have to apply the law of another jurisdiction because that was the location of the relevant equipment. Jacobson J further considered that the submission to ‘the jurisdiction of [New South Wales]’ also included the Federal Court exercising Australian federal jurisdiction in New South Wales.

In any event, because of the estoppel, Jacobson J proceeded on the basis that the clause was non-exclusive. In that light, having regard to the fact that the US proceedings were pending at the time the Australian proceedings were instituted and the closer factual connection with the US than Australia, Jacobson J stayed the Australian proceedings. However, he gave Armacel liberty to apply to have the stay lifted in case developments in the US proceedings made that appropriate. In particular, in the Australian proceedings, Armacel sought to make claims under the Australian Trade Practices Act 1974 (Cth) based on alleged misrepresentations by Smurfit during the negotiation of the licensing agreement. Expert evidence from Smurfit’s US counsel, which Jacobson J accepted, was to the effect that such claims could be brought in the US proceedings. However, if the US Court ultimately declined to apply the Trade Practices Act, Jacobson J said it may be appropriate to lift the stay. Jacobson J also made the stay conditional on Smurfit filing an appearance in the Australian proceedings, and thereby submitting to the Federal Court’s jurisdiction, and participating in a mediation in Sydney, both of which Smurfit had declined to do, as required by the licensing agreement.

From 16th to 20th September 2008, the 13th World Conference of the International Society of Family Law will take place in Vienna. The topic of the conference is “Family Finances”.

A preliminary programme as well as further information on the venue, registration etc. can be found on the website of the University of Vienna.

(Many thanks to Thomas Thiede (Vienna) for the tip-off.)

Thomas Thiede and Katarzyna Ludwichowska (both Vienna) have written a comment (in German) on the ECJ’s judgment in case C-463/06 (FBTO Schadeverzekeringen) in the latest issue of the legal journal Versicherungsrecht (VersR 2008, 631 et seq.).

An English abstract has been kindly provided by the authors:

The authors criticise the judgment of the European Court of Justice from 13 December 2007, in which the Court ruled that the reference in Art. 11(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters to Art. 9(1)(b) of that Regulation is to be interpreted as meaning that the injured party may bring an action directly against the liability insurer of the person liable before the courts of the Member State where that injured party is domiciled. They present and counter the arguments given by the ECJ and show the possible negative consequences of the solution accepted by the Court, such as the aggravation of forum shopping or the possible multiplicity of proceedings concerning the same incident in various Member States. The authors also emphasise that – although the case decided by the ECJ concerns only motor vehicle insurance – the reference in Art. 11(2) of Regulation 44/2001 applies to all – also non-compulsory – third-party liability insurance, which means that the Court’s interpretation will have a very broad impact.

See with regard to this case also our previous posts on the judgment, the referring decision as well as an annotation on the referring decision.

On Thursday 15 May 2008, at 17.00, the Swiss Institute of Comparative Law (ISDC, Lausanne) will host a lecture (in French) by Prof. Fritz Sturm (University of Lausanne) on “Le nom en droit international privé” (”Name in Private International Law”).

The lecture is one of the monthly seminars on private international law and comparative law organized by the ISDC (”Les jeudis de l’ISDC”). A small fee is required for participation (free for students and academics). Further information (and the full list of seminars) is available here.

The State of New York, and—recently—the United States Congress—are presently considering enacting laws that would give American authors legal recourse when they are sued abroad for defamation over literary works that would otherwise fall within the broad protections of the First Amendment to the United States Constitution.

In New York, both the Assembly and its Senate have unanimously passed a bill (dubbed the “Libel Terrorism Protection Act” (S.6687/A.9652)) that would give authors who are sued for libel abroad the right to obtain a declaration that such judgments are unenforceable because their works are protected under American law. Both the U.S. House and Senate are now considering federal legislation that would give authors the right to countersue those who have sued them for defamation in foreign courts, and obtain more than three times the amount of the libel judgment of the foreign court, if the American writer could prove the accuser was trying to intimidate the author from exercising his or her First Amendment rights.

As this article explains, the conflict between foreign judgments and the First Amendment has been brewing since 1941, when the U.S. Supreme Court starkly distinguished American protection of speech from that of England. Only recently, however, as England has become a choice venue for libel plaintiffs from around the world, has that country’s libel law come to have a disturbing impact on the First Amendment. The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her 2003 book named Mr. Bin Mahfouz as a possible funder of terrorism. Twenty-three copies of the book were sold in England, which led Mr. Bin Mahfouz to sue there. Ms. Ehrenfeld refused to appear before the English courts, and a judgment against her was entered in the amount of $225,000. Ms. Ehrenfeld has sought a declaratory judgment in New York determining that the English judgment was not enforceable here, and that her work was protected under American law. But the New York Court of Appeals determined that her suit could not be heard under existing state law (because the state’s long-arm statute did not authorize personal jurisdiction over Mr. Bin Mahfouz), and it was the duty of the legislature to change that law if it sees fit. See Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501 (N.Y. App. 2007). It appears now that that some change in that direction is starting to occur. English courts, however, are not the only one’s creating this alleged conflict; consider Yahoo!’s cross-border struggle with French authorities over Nazi-era materials on its auction website. See Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1204 (9th Cir. 2006).

More commentary on this pending legislation is available here.

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)

Centre du droit de l`enterprise at Université Robert Schuman (URS) organizes on 17 June 2008, at Maison Interuniversitaire des Sciences de l’Homme-Alsace (MISHA) (5 allée du Général Rouvillois, Strasbourg), a comparative law day with several private international law related topics on the agenda. The scope of the comparative law day is marked in its title: “Le droit français et le droit brésilien d’aujourd’hui : éléments de comparaison” (Contemporary French law and Brasilian law: elements of comparison). The scientific agenda can be consulted here.

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”)

With the courts of Canadian provinces willing to take jurisdiction over a “national” class claim, involving a plaintiff class which includes members located in other provinces, and with American courts willing to take jurisdiction over “international” classes, involving a plaintiff class which includes members located in Canada, Canadian courts are increasingly having to confront the issue of whether to recognize a foreign class action decision.  If a defendant settles a class claim brought in the United States which purports to bind class members in Canada, that defendant then will raise that settlement, as approved by judicial order, in response to subsequent class claims in Canada.  Given the value of class claims, the decision whether or not to recognize the foreign decision has significant economic repercussions. 

 Two relatively recent Canadian decisions on whether to recognize such judgments are Parsons v. McDonald’s Restaurants of Canada Ltd. (available here) and Currie v. McDonald’s Restaurants of Canada Ltd. (available here).  These decisions generally support recognition of such judgments, but they impose particular conditions relating to the process followed in the foreign court and the notice given to the people affected in Canada.  More recently, two Quebec decisions have addressed the recognition of foreign class action judgments.  See Lépine v. Société Canadienne des postes (available here; affirmed on appeal) and HSBC Bank Canada c. Hocking (lower court decision available here; appellate decision will be available on CanLII).  The latter decision has just been released, and the former decision has been appealed to the Supreme Court of Canada, so further guidance on these issues is likely forthcoming.

Some of these issues are addressed in Janet Walker, “Crossborder Class Actions: A View from Across the Border” (2003) Mich. St. L. Rev. 755; Debra Lyn Bassett, “U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction” (2003) 72 Fordham L. Rev. 41; Ellen Snow, “Protecting Canadian Plaintiffs in International Class Actions: The Need for A Principled Approach in Light of Currie v. McDonald’s Restaurants of Canada Ltd.” (2005) 2 Can. Class Action Rev. 217; and Craig Jones & Angela Baxter, “Fumbling Toward Efficacy: Interjurisdictional Class Actions After Currie v. McDonald’s” (2006) 3 Can. Class Action Rev. 405.

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.

Australian commentators have long speculated about whether the federal Constitution contains any rule that would resolve a direct conflict between the statute law of two States. Thus far, the High Court has defused potential conflicts without the need for such a constitutional rule. In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, the potential conflict between ACT and NSW law was resolved by a common law choice of law rule; and in Sweedman v Transport Accident Commission (2006) 226 CLR 362 a potential conflict between NSW and Victorian law was resolved by a process of statutory construction.

Most recently, in Betfair Pty Limited v Western Australia [2008] HCA 11, the High Court resolved a potential conflict between the laws of Tasmania and Western Australia by striking down the Western Australian statute because it infringed s 92 of the Constitution (which prevents protectionist burdens on interstate trade and commerce). The Court noted in passing that its conclusion about s 92 made it “unnecessary to consider whether [the WA law] is invalid by reason of the alleged direct conflict between it and  … the Tasmanian Act. This is not the occasion to consider what may be the controlling constitutional principles were there demonstrated to be such a clash of State legislation.” Since no such occasion has yet arisen in the 108 years of Australian federation, the direct conflict between State laws is perhaps a problem of greater theoretical than practical importance.

The High Court of Australia has recently addressed the Hague Convention on the Civil Aspects of International Child Abduction: MW v Director-General, Department of Community Services [2008] HCA 12. In a 3:2 decision, the Court considered that the Director-General (as State Central Authority) had not sufficiently established that the removal of a child from New Zealand to Australia was wrongful, and thus the Family Court of Australia ought not to have made an order for the return of the child.

In Australia, the Hague Convention does not apply of its own force, but is instead implemented by the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986(Cth). The case turned on reg 16(1A)(c) of the Regulations, which provides that “the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia”. As such, the High Court was required to address difficult factual and legal questions relating to the child’s circumstances in New Zealand. At least in the case of New Zealand law, that task was eased in Australia by the Evidence and Procedure (New Zealand) Act 1994 (Cth).

James McComish, my Australian Conflict of Laws.net co-editor, has recently had published an article entitled “Pleading and Proving Foreign Law in Australia” in volume 31(2) of the Melbourne University Law Review. The abstract reads:

Foreign law lies at the heart of private international law. After all, a true conflict of law cannot be resolved unless and until the content of foreign law is established. Despite this, the pleading and proof of foreign law remain among the most under-explored topics in Australian private international law. In light of the High Court of Australia’s significant change of direction on choice of law since 2000, most notably in cases such as John Pfeiffer Pty Ltd v Rogerson, Regie Nationale des Usines Renault SA v Zhang and Neilson v Overseas Projects Corporation of Victoria Ltd, it is all the more important to answer some of the basic questions about the pleading and proof of foreign law. Who pleads foreign law? What law do they plead? Are they obliged to do so? How do they prove its content? When can local law be applied in the place of foreign law? This article addresses these and related questions with a particular focus on Australian law as it has developed since 2000. It concludes that Australian courts take a more robust and pragmatic approach to these issues than might be supposed. In particular, the so-called presumption of identity is a label that masks a much richer and more complex reality.

The article’s full citation is (2007) 31(2) Melbourne University Law Review 400.

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.

“At the heart of this sad case, which raises questions of international and federal law under the Hague [Abduction] Convention, is a custody battle over a young girl who has not seen either of her parents in years.” That was the lead-in from Judge Jordan to the recent decision by a three-judge panel of the Third Circuit. Carrascosa v. McGuire, No. 07-1748/4130 (3rd Cir., March 20, 2008), involved a Spanish mother, once married to an American father, whose child was habitually resident in New Jersey. Upon their divorce, the couple signed a “Parenting Agreement” that established an “interim resolution” of the custody issue and prohibited either of them from traveling outside the country with their daughter. Shortly thereafter, the mother took the daughter to Spain.

A judge in New Jersey issued several orders for the daughter’s return, and when each went unanswered, issued a warrant for the mother’s arrest. In the meantime, however, purporting to follow the Hague Abduction Convention, the Spanish Courts had decided that the Parenting Agreement violated Article 19 of the Spanish Constitution (regarding the freedom to chose one’s place of residence), determined that the removal to that country was not “wrongful” within the meaning of the Convention, and ordered that the daughter remain. When the mother returned to the United States to attend to the divorce proceedings, she was arrested. She challenged her detention as “in violation of the laws and treaties of the United States” through a writ of habeas corpus. In essence, she argued that a decision of the Spanish Court that the Parenting Agreement was null and void should be afforded comity, and void the charges of contempt against her.

The Federal District Court for the District of New Jersey denied the writ, and the Third Circuit affirmed. Applying the Hague Convention and its implementing legislation, the Court recognized that “[t]here is no dispute that [the daughter’s] place of habitual residence, prior to . . . her [removal] to Spain, was the United States, in particular New Jersey.” As to whether her removal to Spain was wrongful under Article 3 of the Hague Convention, the District Court examined whether the father’s custody rights were breached by Victoria’s removal. Because, under New Jersey law, the father had custody rights by virtue of a valid Parenting Agreement, and the mother breached those rights by removing the daughter to Spain without his consent, the removal was “wrongful” within the meaning of Article 3 of the Hague Convention.

The Spanish court, however, in nullifying the Parenting Agreement, never applied New Jersey law, despite their explicit recognition that the daughter’s habitual place of residence was New Jersey. They instead based their decision on the “wrongfulness” of the removal solely on Spanish law, while paying only “lip-service” to the Convention. According to the U.S. Court, this “glaring departure . . . from the mandate of the Hague Convention”—i.e. the “total failure to determine [the father’s] rights of custody under [the law of the child’s habitual residence]”—the decision of the Spanish court was given no weight. The removal was wrongful under the Convention, and the mother’s detention was held to be not “in violation of the law or treaties of the United States.”

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.)