Moreira Gomes & Vilas Boas apoiam o III RIBAMAR

Em nome da Comissão Organizadora do III RIBAMAR: Temas Emergentes do Direito Internacional Privado, agradecemos a Moreira Gomes & Vilas Boas - Advogados Associados a confiança e o apoio à realização de nosso encontro jurídico.

Acessem a página do RIBAMAR aqui.

Two Conferences in Brazil

by RALF MICHAELS on MARCH 1, 2019

Two conferences on private international law have been announced for Brazil. From March 13-16, the University of Brasilia will organize a conference on the topic of “Challenges to Private International Law in contemporary society”. Prior to that, I will teach a graduate mini-course on comparative law and private international law on March 11-13.

And then, on May 15-17, the 3rd international law conference RIBAMAR at the Universidade Estadual do Maranhão will discuss “Emerging Topics in Private International Law.” The program is here, instructions for signing up here.

Exciting to see that the energy is sustained n Brazil, after the JPIL conference in 2017 in Rio de Janeiro.

Copiado de: Conflict of Laws.net. Disponível em: <http://conflictoflaws.net/2019/two-conferences-in-brazil/>. Acesso em: 16 mar. 2019.

Guide on the Law Applicable to International Commercial Contracts in the Americas has been approved by OAS

by MAYELA CELIS on MARCH 15, 2019

The Organization of American States (OAS) has announced that the Inter-American Juridical Committee (CJI) has approved the Guide on the Law Applicable to International Commercial Contracts in the Americas. See the summarized recommendations on p. 6, the actual Guide starts on p. 16.

The Rapporteur of the Guide is Dr José Antonio Moreno Rodríguez.

Importantly, one of the recommendations of the Guide is that “OAS Member States, regardless of whether they have or have not ratified, or do or do not intend to ratify the Mexico Convention, are encouraged to consider its solutions for their own domestic legislation, whether by material incorporation, incorporation by reference, or other mechanisms as applicable to their own domestic legal regimes, taking into consideration subsequent developments in the law applicable to international commercial contracts as expressed in the Hague Principles and as described in this Guide.”

Unfortunately, only two States are parties to the Mexico Convention: Mexico and Venezuela.

While the OAS Guide takes into consideration and examines both instruments, it should be noted that the official article-by-article Commentary on the Hague Principles is available here.

The OAS news item is available here (Spanish version of the Guide is not yet available).

Copiado de: <http://conflictoflaws.net/2019/guide-on-the-law-applicable-to-international-commercial-contracts-in-the-americas-has-been-approved-by-oas/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 16 mar. 2019.

The Circulation of Judgments Under the Draft Hague Judgments Convention

U. of Pittsburgh Legal Studies Research Paper No. 2019-02

36 Pages - Posted: 15 Feb 2019

Ronald A. Brand

University of Pittsburgh - School of Law

Date Written: February 14, 2019

Abstract

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process. This article discusses the advantages and disadvantages of each of the 2018 draft Convention text as well as the alternative approach. It then suggests that, no matter which approach one considers to be better, the 2019 Diplomatic Conference should begin with an awareness of both options, and an understanding of the advantages and disadvantages of each, and move forward with a clear decision that the option chosen is the best alternative. Such consideration may (1) lead to the conclusion that the choices already made are the best for a multilateral treaty; (2) result in a determination that an alternative approach is a better option; or (3) demonstrate that one approach works best for some legal systems while another approach works best for other legal systems–leading to dual texts that could form the bases for differing bilateral and multilateral treaty relationships across the globe, while still improving the global framework for the recognition and enforcement of foreign judgments.

Referência:
Brand, Ronald A. The Circulation of Judgments Under the Draft Hague Judgments Convention (February 14, 2019). Un. of Pittsburgh Legal Studies Research Paper No. 2019-02. Disponível em: . Acesso em: 05 mar. 2019.

The Quiet Expansion of Universal Jurisdiction

European Journal of International Law (Forthcoming)

UCLA School of Law, Public Law Research Paper No. 19-02

45 Pages Posted: 5 Feb 2019

Maximo Langer

University of California, Los Angeles (UCLA) - School of Law

Mackenzie Eason

University of California, Los Angeles (UCLA), Department of Political Science

Date Written: 2018

Abstract

Based on an original world-wide survey of all universal jurisdiction complaints over core international crimes presented between 1961 and 2017 and against widespread perception by international criminal law experts that universal jurisdiction is in decline, this article shows that universal jurisdiction practice has been quietly expanding as there has been a significant growth in the number of universal jurisdiction trials, in the frequency with which these trials take place year by year, and in the geographical scope of universal jurisdiction litigation. This expansion is likely the result of, among other factors, the adoption of ICC implementing statutes, the creation of specialized international crimes units by states, institutional learning by states and NGOs, technological changes, new migration and refugee waves to universal jurisdiction states, criticisms of international criminal law as neo-colonial, and the search of new venues by human rights NGOs. Universal jurisdiction’s expansion has been quiet because most tried defendants have been low-level, universal jurisdiction states have not made an effort to publicize these trials, and observers have wrongly assumed Belgium and Spain were representative of universal jurisdiction trends. The paper finally assesses positive and negative aspects of the quiet expansion of universal jurisdiction for its defenders and critics.

Referência
LANGER, Maximo; EASON, Mackenzie. The Quiet Expansion of Universal Jurisdiction (2018). European Journal of International Law (Forthcoming); UCLA School of Law, Public Law Research Paper No. 19-02. Disponível em: <https://ssrn.com/abstract=3324891>. Acesso em: 08 fev. 2019.

At Least Something: The UN Special Committee on the Problem of Hungary, 1957 – 1958

European Journal of International Law (forthcoming)

29 Pages Posted: 7 Jan 2019

See all articles by Eliav Lieblich

Eliav Lieblich

Tel Aviv University - Buchmann Faculty of Law

Date Written: December 18, 2018

Abstract

In late 1956, The UN faced a remarkable test, as the USSR invaded and crushed a burgeoning rebellion in Hungary, then a Soviet satellite. After the USSR disregarded repeated UN calls to withdraw, the UN General Assembly established, in January 1957, a Commission of Inquiry (COI) to investigate the crisis.

This Article explores the forgotten story of the Special Committee on Hungary as a case study for the effects of commissions of inquiry. This commission is of special interest for several reasons. Namely, it was one of the first mandated by a UN body to investigate a specific conflict, not least a Cold War struggle, in which a superpower was directly involved. Furthermore, it was clear from the beginning that the Committee was not likely to compel, in itself, the USSR to change its behavior. Moreover, 1956 was a time of global political transformation, as the non-aligned movement emerged as a key player in UN politics, and, accordingly, became a target in the Cold War battle for influence. Under such circumstances, the effects of COIs are complex and difficult to gauge.

While the Committee did not lead to the USSR's withdrawal from Hungary, it had many unforeseen and conflicting effects. These are grouped, in the Article, into two categories – effects relating mainly to times of ideological conflict and political transformation; and effects that relate to parallel multilateral efforts and institutional dynamics. Among other effects, the Article demonstrates how, under such political circumstances, COIs can create new points of contention, and cause backlash precisely from those that they seek to influence. Having cascading and conflicting effects, the central conclusion is that COIs do not lend themselves easily to clean and linear theories. A Recognition of the field’s inherent complexity is therefore needed in any attempt to study this international phenomenon.

REFERÊNCIA

LIEBLICH, Eliav. At Least Something: The UN Special Committee on the Problem of Hungary, 1957 – 1958 (December 18, 2018). European Journal of International Law (forthcoming). Disponível em: <https://ssrn.com/abstract=3303351>. Acesso em: 09 jan. 2019.

The Impact of the EU-UK Draft Agreement on Judicial Cooperation in Civil and Commercial Matters

by JAN VON HEIN on NOVEMBER 15, 2018

Yesterday, on 14 November 2018, the UK cabinet, after five hours of deliberation, accepted the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on the same day. The text (TF 50 [2018] 55) contains provisions on judicial cooperation in civil and commercial matters in Articles 66 to 69. Pursuant to Article 66(a) of the Draft Agreement, the Rome I Regulation shall apply in the UK in respect of contracts concluded before the end of the transition period, which will be on 31 December 2020 (Article 126 of the Draft Agreement). Under Article 66(b) of the Draft Agreement, the Rome II Regulation shall apply in the UK in respect of events giving rise to damage, where such events occurred before the end of the transition period. The remaining EU Member States will continue to apply the Rome I and II Regulations in EU-British relations anyway following the principle of universal application (Article 2 Rome I, Article 3 Rome II).

Article 67 of the Draft Agreement deals with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities. This article reads as follows

“1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council, Article 19 of Regulation (EC) No 2201/2003 or Articles 12 and 13 of Council Regulation (EC) No 4/2009, the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012;

(b) the provisions regarding jurisdiction of Regulation (EU) 2017/1001, of Regulation (EC) No 6/2002, of Regulation (EC) No 2100/94, of Regulation (EU) 2016/679 of the European Parliament and of the Council and of Directive 96/71/EC of the European Parliament and of the Council;

(c) the provisions of Regulation (EC) No 2201/2003 regarding jurisdiction;

(d) the provisions of Regulation (EC) No 4/2009 regarding jurisdiction.

2. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

(a) Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period;

(b) the provisions of Regulation (EC) No 2201/2003 regarding recognition and enforcement shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period;

(c) the provisions of Regulation (EC) No 4/2009 regarding recognition and enforcement shall apply to decisions given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded, and authentic instruments established before the end of the transition period;

(d) Regulation (EC) No 805/2004 of the European Parliament and of the Council shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to court settlements approved or concluded and authentic instruments drawn up before the end of the transition period, provided that the certification as a European Enforcement Order was applied for before the end of the transition period.

3. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

(a) Chapter IV of Regulation (EC) No 2201/2003 shall apply to requests and applications received by the central authority or other competent authority of the requested State before the end of the transition period;

(b) Chapter VII of Regulation (EC) No 4/2009 shall apply to applications for recognition or enforcement as referred to in point (c) of paragraph 2 of this Article and requests received by the central authority of the requested State before the end of the transition period;

(c) Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

(d) Regulation (EC) No 1896/2006 of the European Parliament and of the Council shall apply to European payment orders applied for before the end of the transition period; where, following such an application, the proceedings are transferred according to Article 17(1) of that Regulation, the proceedings shall be deemed to have been instituted before the end of the transition period;

(e) Regulation (EC) No 861/2007 of the European Parliament and of the Council shall apply to small claims procedures for which the application was lodged before the end of the transition period;

(f) Regulation (EU) No 606/2013 of the European Parliament and of the Council shall apply to certificates issued before the end of the transition period.”

Article 68 of the Draft Agreement concerns ongoing judicial cooperation procedures, in particular within the framework of the EU Regulations on cross-border service of documents and the taking of evidence. Article 69 of the Draft Agreement contains miscellaneous provisions dealing, inter alia, with legal aid, mediation, and relations with Denmark.

The full text of the Draft Agreement is available on the Commission’s website here and in the press, e.g. via the Guardian’s website here. It remains to be seen, however, whether the British Parliament will ratify this text (see here). Stay tuned!

Disponível em: <http://conflictoflaws.net/2018/the-impact-of-the-eu-uk-draft-agreement-on-judicial-cooperation-in-civil-and-commercial-matters/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em: 20 nov. 2018.

In Praise of Jus Cogens' Conceptual Incoherence

McGill Law Journal, Forthcoming

25 Pages Posted: 21 Sep 2018

Jens David Ohlin

Cornell University - School of Law

Date Written: September 8, 2018

Abstract

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.

Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.

One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

Referência:
Suggested Citation:
OHLIN, Jens David. In Praise of Jus Cogens' Conceptual Incoherence (September 8, 2018). McGill Law Journal, Forthcoming. Disponível em: <https://ssrn.com/abstract=3246417>. Acesso em: 03 out. 2018.