The Herbert Smith Freehills Private International Law Seminar Series

Herbert Smith Freehills Senior Research Fellow: Dr. Eva Lein


Herbert Smith Freehills


The Seminar Series


The British Institute of International and Comparative Law organises a Seminar Series on Private International Law, which, since 2006, has been kindly sponsored by Herbert Smith Freehills. It consists of several seminars in each year, during which leading academics, lawyers, judges and other specialist practitioners as well as government and intergovernmental officials and others present and debate recent developments of topical importance for current legal practice and research in the field of Private International Law. There is a general focus on areas of commercial interest.

The series considers the European Private International Law system as well as the global issues of Private International Law, which have an important impact on UK law and practice. For example, the increasing interest of the European Union to harmonise Conflict of Laws and Jurisdictions in the EU and the EC membership in the Hague Conference on Private International Law created new dynamics and augmented the need to impart knowledge of and exchange ideas on international and European aspects of Private International Law.


Recent Events


Unilateral Jurisdiction and Arbitration Clauses - Valid or Not?

The event on 8 May 2013 examined so-called unilateral or asymmetric dispute resolution clauses, which oblige only one of the parties to bring their case in a specific court, while the other is free to select between different fora. Recently, the French Cour de Cassation has decided that this type of clause is invalid. Since, the validity of one-way jurisdiction clauses has been debated in various countries. The debate includes the question how hybrid arbitration clauses are to be assessed.

Speakers discussed the French Supreme Court's decision; the views of different Member States on the interpretation of Art. 23 Brussels I Regulation; the future of unilateral jurisdiction clauses; and the interpretation of hybrid arbitration clauses. The event was chaired by Craig Tevendale, Partner, Herbert Smith Freehills. Speakers included Professor Gilles Cuniberti, University of Luxemburg; Professor Matthias Lehmann, University of Halle-Wittenberg; and Dr Maxi Scherer, Special Counsel, WilmerHale; Senior Lecturer, Queen Mary University of London.


Comparative Torts before the Courts: The Impact of Rome II

This seminar on 31 January 2013 looked at the application of foreign law rules under Rome II. Distinguished practitioners and academics from the UK and abroad examined issues relating to the use of foreign law under Rome II, including the relevant procedural and evidential rules as well as methodologies for proving foreign law in the UK and elsewhere. The seminar was chaired by Lady Justice Arden Speakers were: Avvocato Marco Bona, Studio Legale Bona Oliva, Turin; Professor Andrew Dickinson, Visiting Fellow, British Institute of International and Comparative Law; University of Sydney; Marie Louise Kinsler, 2 Temple Gardens; Maître Carole Sportes, Cabinet BOPS, Paris; Robert Weir QC, Devereux Chambers


The New Face of Brussels I

The Brussels I Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is one of the key instruments of European Private International Law. It is currently undergoing a review process. Various changes have been suggested by the European Commission in the Review Proposal, some of them have been subsequently amended in the legislative process. This event focused on the latest news from Brussels on the text of the recast. In addition, the event highlighted and debated several important recent Brussels I decisions.

Participants were Robert Bray, European Parliament; Jonathan Harris, Serle Court; King's College London; Andrew Dickinson, University of Sydney; Clifford Chance, London; Marta Requejo, University of Santiago de Compostela. The event was followed by a book launch of "The Brussels I Review Proposal Uncovered", edited by Eva Lein, BIICL.


Regionalism in International Arbitration

This event held on June 19, sponsored by Queen Mary, University of London and Herbert Smith Freehills, dealt with the phenomenon of regionalisation of arbitration and its advantages and shortcomings. Topics included the expansion of international arbitral venues (LCIA, PCA, The Hague International Financial Tribunal), recent developments in regional arbitration centres (Hong Kong, Singapore, Cairo, Dubai, India, Jerusalem) as well as regionalism in investment arbitration (Latin America, ASEAN, NAFTA). Participants were Gary Born, Wilmer Cutler Pickering Hale and Dorr, London; Julian D M Lew QC, Queen Mary University of London; Audley Sheppard, Clifford Chance, London; VV Veeder QC, Essex Court Chambers, London; Remy Gerbay, Queen Mary University of London; Salim Moollan, Essex Court Chambers, London; Willem Van Baren, Allen&Overy, Amsterdam;Stavros Brekoulakis, Queen Mary University of London; Justin d'Agostino, Herbert Smith Freehills, Hong Kong; Nicholas Peacock, Herbert Smith, Singapore; Mohammed Abdel Raouf, Cairo Regional Centre of International Arbitration; Wendy Miles, Wilmer Cutler Pickering Hale and Dorr; Catherine Rogers, Pennsylvania State University; Oren Schachor, ICC Israel; Daniel Reisner, ICC Israel; Mazen Qupty, ICC Palestine; Jansen N. Calamita, BIICL,University of Birmingham; Andrea Saldarriaga, Consultant in Arbitration and Foreign Investment Law; Bart Legum, Salans, Paris; David Herlihy, Skadden Arps, London.


Jurisdiction of North-American Courts: When Will the Long Arm Reach You?

At this event on May 29, 2012 Professor Linda Silberman, NYU, Adam Johnson, Herbert Smith Freehills and Alexander Layton QC, 20 Essex Street discussed recent case law of the US and the Canadian Supreme Courts from a US, UK and EU perspective. The US Supreme Court decisions J. McIntyre Machinery Ltd. v. Nicastro, Goodyear Dunlop Tires Operations S.A. v. Brown as well as the Canadian case Club Resorts Ltd. v. Van Breda clarify the conditions under which North-American courts can assume jurisdiction over foreign businesses. The decisions are important for litigation practitioners and those doing business overseas. The event was chaired by Lord Collins of Mapesbury, former Justice of the Supreme Court of the United Kingdom.


Insolvency: Current Questions in Cross-Border Scenarios

The event on 9 November 2011 provided an overview of important issues relating to cross-border insolvencies. Speakers highlighted various topics such as the interrelation of cross-border assignment and insolvency law; the effects of insolvency on international arbitration proceedings; current developments on the recognition in the United Kingdom of judgments entered in foreign insolvency proceedings; and the shortcomings of the Insolvency Regulation and potential remedies, including an EU wide harmonization of bankruptcy laws. Participants were: Sir Roy Goode CBE QC, Emeritus Professor in the University of Oxford; Professor Federico Mucciarelli, University of Modena and Reggio Emilia, Italy; Dorothy Livingston, Herbert Smith LLP, London; City of London Law Society; Dr Anne-Catherine Hahn, Baker & McKenzie, Zurich, Switzerland; Look Chan Ho, Freshfields Bruckhaus Deringer LLP, London.


Punitive Damages - Europe Strikes Back!?

This event, held on 2 November 2011, focused on the reception of US punitive damages awards into European legal systems. There have been a series of interesting recent cases in France, Spain and Italy on this very topic, looking at issues of the recognition of foreign judgments, the application of public policy / ordre public and proportionality of the damages award that were discussed. Participants were: Prof. Rachael Mulheron, Queen Mary, University of London; Prof. Marta Requejo Isidro, University of Santiago de Compostela, Spain; Dr. Maxi Scherer, WilmerHale, London; Dr. Francesco Quarta, University of Salento, Italy.


The Brussels I Review Proposal

On December 14, 2010, the European Commission has published its draft Regulation reviewing the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Commission proposal suggests various changes of the current Brussels I regime. The major changes, some of which have been very controversial already in the forefront of the proposal have been discussed by an international expert panel at the BIICL Seminar The Brussels I Review Proposal on February 10, 2011.
Topics included the interface between the Regulation and arbitration, choice of court agreements, lis pendens issues, provisional (including protective measures), the extension of the Regulation's jurisdiction rules to third States defendants, the abolition of exequatur proceedings, the relation of the new Brussels I regime to the revised Lugano Convention and the protection against abuse in the Brussels I Review Proposal. The Seminar was concluded by a lively round table discussion on advantages and omissions of the draft.
Participants were: The Right Hon the Lord Mance, Justice of the Supreme Court of the United Kingdom; Professor Alegría Borras, University of Barcelona, Spain and member of GEDIP; Andrew Dickinson, Professor in Private International Law, University of Sydney, Consultant, Clifford Chance LLP and Visiting Fellow at the BIICL; Dr Pippa Rogerson, University of Cambridge; Professor Jonathan Harris, University of Birmingham and Serle Court, London; Professor Michael Bogdan, University of Lund, Sweden; Professor Andreas Furrer, University of Luzern, Switzerland; Alexander Layton QC, 20 Essex Street; Professor em Ulrich Magnus, University of Hamburg, Germany and Professor Luboš Tichý, Charles University Prague, Czech Republic.


The Optional EU Contract Law Instrument - What to expect?

On 7 February 2011 BIICL held a seminar entitled The Optional EU Contract Law Instrument - What to expect? This seminar addressed the very actual topic of a potenial EU contract law instrument. Such instrument is now highly likely, after the publication of the Draft Common Frame of Reference, of the Commission Green Paper on policy options for progress towards a European Contract Law for consumers and businesses, COM(2010)348 final, and after the nomination of a Commission Expert Group that is evaluating the Draft Common Frame of Reference and drafting a model EU contract law instrument. To date, the European Parliament is discussing the topic. The draft report of Diana Wallis can be found here. It seems that the currently preferred option for an EU contract law instrument would be the so-called "optional instrument" enabling parties to opt into this regime if they wish to have an alternative to a national contact law.
BIICL was very pleased to welcome Diana Wallis (European Parliament) and Dr. Andreas Stein (European Commission) as well as Prof. Hans Schulte-Nölke (Commission Expert Group) to discuss many open questions: What will be the scope of an EU contract law instrument, how will it interact with existing regimes, who will benefit from it, what are its advantages and risks and what will be the impact of such instrument on the legal scene in England? Further speakers were Dr Christoph Busch, University of Osnabrück, who highlighted parallel work undertaken by the UNCITRAL working group on Online Dispute Resolution as well as Paul Ahearn, Head of the Private International Law Policy Unit, Ministry of Justice; Professor Simon Whittaker, University of Oxford; Professor Roger Halson, University of Leeds and Michael Patchett-Joyce, Outer Temple Chambers who critically commented on the plans for a European EU Contract Law instrument. The seminar was chaired by The Rt Hon the Lord Justice Richard Aikens, Royal Courts of Justice.


Death of the pro-enforcement myth? Arbitration and England after Dallah

On 24 November 2010 BIICL organised the event Death of the pro-enforcement myth? Arbitration and England after Dallah chaired by David Brynmor Thomas, Herbert Smith LLP. Speakers were Dr Stavros Brekoulakis, Queen Mary, University of London; Ali Malek QC, Three Verulam Buildings; and Duncan Speller, Wilmer Cutler Pickering Hale and Dorr LLP. The event focussed on the UK Supreme Court decision in Dallah Real Estate & Tourism Holding Company v The Ministry of Religious Affairs, Pakistan [2010] UKSC 46 of November 3, 2010 in which the Supreme Court unanimously declined to enforce an ICC award under the New York Convention. The case has raised several issues - the scope of the court's review under sec. 103(2)(b) of the Arbitration Act 1996 (Article V(1)(a) New York Convention), the doctrine of competence-competence and the application of arbitration agreements to non-signatories. The case and its impact for contracting parties were intensively discussed in this rapid response seminar, also from a comparative and international perspective.


Extraterritoriality and Collective Redress

On 15 November 2010 BIICL organised at Herbert Smith, Exchange House, London, an international conference on Extraterritoriality and Collective Redress. Speakers were Professor Burkhard Hess, University of Heidelberg; Professor Linda Silberman, Martin Lipton Professor of Law, New York University; Thomas A Dubbs, Labaton Sucharow; John Sorabji, Legal Secretary to the Master of the Rolls; Professor Rachael Mulheron, Queen Mary University of London; Adam Johnson, Partner, Herbert Smith, London; Gerard Mc Dermott QC, Outer Temple Chambers; Professor Ianika Tzankova, NautaDutilh and Tilburg University; Jonathan Sinclair, Stewarts Law; Dr Hélène van Lith, University of Rotterdam; Vincent Smith, Visiting Fellow, BIICL; Professor Diego Corapi, University Rome I - La Sapienza; Dr Francesco Quarta, University of Salento; Dr Duncan Fairgrieve, Director Product Liability Forum, BIICL; Dr Eva Lein, Herbert Smith Senior Research Fellow, BIICL. This event provided a forum for the debate of latest developments in the area of international mass litigation. The question of extraterritoriality of national legislation has been extensively discussed by the US Supreme Court in the Morrison case. The US position post Morrison was highlighted in comparison with the recent Dutch legislation on collective settlements. The speakers commented on mass litigation phenomena from a global and a European position. A focus also lied on the UK viewpoint regarding collective redress. Furthermore, the Brussels I framework and its suitability for cross-border collective claims were covered as well as problems relating to the recognition of US class actions and of punitive damage judgments. The experts from the US, UK, the Netherlands and other European countries discussed the status quo and the way forward from their different perspectives.


Rome II - Case Law and Controversy

On 27 September 2010 the Institute organised a conference entitled Rome II - Case Law and Controversy. The event provided a forum for debate and discussion of the practical problems surrounding the application of the Rome II Regulation. After a brief review of its main features, recent English case law, such as Jacobs v. Motor Insurance Bureau [2010] EWHC 231(QB), Homawoo v GMF Assurance SA [2010] EWHC 1941(QB) and Bacon v Nacional Suiza [2010] EWHC 1941(QB) was debated by practitioners involved in these cases for plaintiffs or defendants. Furthermore, selected key issues of current debate were highlighted, such as the synergies between the Rome II and the Brussels I Regulations, the assessment of damages post Rome II, the relationship between Rome II and the Hague Conventions on Traffic Accidents and Product Liability, or, notably, the controversial issue of Rome II and defamation. Speakers were William Bennett, Barrister, 5RB; Charles Dougherty, Barrister, 2 TG; Marie Louise Kinsler, Barrister, 2 TG; Andrew Dickinson, Solicitor and Consultant, Clifford Chance; Pamela Kiesselbach, Solicitor, Herbert Smith LLP; Andrew Scott, Lecturer, All Souls College, Oxford; Thomas Kadner Graziano, Professor, University of Geneva. The event was chaired by Alexander Layton, Barrister, 20 Essex Street. BIICL Members can access conference materials here.


New Developments in Arbitration Law and Practice - From Class Arbitration to Brussels I

On 30 June 2010 the British Institute of International and Comparative Law hosted a seminar highlighting New Developments in Arbitration Law and Practice - From Class Arbitration to Brussels I. Three recent decisions were discussed by Jan Kleinheisterkamp, Lecturer in International Commercial Arbitration and Contracts (LSE), Arbitrator in ICC and LCIA Arbitration; Loukas Mistelis, Professor, Queen Mary, University of London; Director of the School of International Arbitration, Centre for Commercial Law Studies (CCLS); and Matthew Weininger, Partner, Litigation and Arbitration, Herbert Smith LLP, London: The US Supreme Court decision in Rent-A-Centre v Jackson relating to the issue of Kompetenz-Kompetenz and unconscionable arbitration agreements; the US Supreme Court decision in Stolt-Nielsen v. Animalfeeds International concerning the admissibility of class arbitration and the UK response to West Tankers in National Navigation v. Endesa. The application of the Brussels I Regulation in disputes subject to arbitration, to which the latter decision refers, is still an issue that raises numerous questions and has potential consequences for the future of the UK as a seat of arbitration.


Private International Law - Challenges for Today's Markets

On 9 February 2010, the Seminar Series hosted the event Private International Law - Challenges for Today's Markets. The conference brought together practitioners from various industry sectors to exchange views on private international law problems they currently encounter. The speakers discussed several topics, such as the difficult new rules in the Rome I regulation on financial market contracts, problems arising in the field of Swaps and Derivatives and in the Energy sector and addressed the pitfalls of Private International Law for business contracts between important market players.


Jurisdiction Agreements on Trial: Current Problems - Future Solutions

On 9 December 2009 the Herbert Smith Seminar Series presented Jurisdiction Agreements on Trial: Current Problems - Future Solutions. Cases such as UBS v. Nordbank, Deutsche Bank v. Asia Pacific Broadband Wireless and Highland Crusader v. Deutsche Bank have shown that many issues remain to be discussed, be it on the effect of non-exclusive jurisdiction agreements, potentially conflicting jurisdiction agreements or consent under Art. 23 of the Brussels I Regulation. Barbara Dohmann QC of Blackstone Chambers set the scene by presenting four recent UK cases, including those mentioned above. She was followed by Professor Jonathan Harris of the University of Birmingham and Serle Court Chambers, who highlighted the issues in relation to choice of court agreements which need to be considered during the Brussels I review. Finally, Professor Trevor Hartley of LSE presented the 2005 Hague Convention on Choice of Court Agreements shedding light on the delicate interplay of European and international Private International Law Instruments relating to forum selection. The event was chaired by Professor Filip De Ly, Erasmus University Rotterdam. If you are interested in further reading on the topic, a list of references by the speakers is available here.

CPD hours may be claimed by both solicitors and barristers through attendance at the events in this seminar series.

If you have any questions on the Herbert Smith Freehills Private International Law Series, please do not hesitate to contact Eva Lein at e.lein@biicl.org.


DATES FOR YOUR DIARY

  • Unilateral jurisdiction and arbitration clauses - valid or not?

8 May 2013, 17:15 to 19:00

Location
British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP

Chair:

Craig Tevendale, Partner, Herbert Smith Freehills

Speakers:

Professor Gilles Cuniberti, University of Luxemburg

Dr Maxi Scherer, Special Counsel, WilmerHale; Senior Lecturer, Queen Mary University of London

Professor Matthias Lehmann, University of Halle-Wittenberg

What is this event about?

This seminar examines so-called unilateral or asymmetric dispute resolution clauses, which oblige only one of the parties to bring their case in a specific court, while the other is free to select between different fora. Recently, the French Cour de Cassation has decided that this type of clause is invalid. Since, the validity of one-way jurisdiction clauses has been debated in various countries. The debate includes the question how hybrid arbitration clauses are to be assessed.

Speakers will discuss the French Supreme Court's decision; the views of different Member States on the interpretation of Art. 23 Brussels I Regulation; the future of unilateral jurisdiction clauses; and the interpretation of hybrid arbitration clauses.


  • For upcoming private international law events outside the Herbert Smith Freehills Series please click here.


PAST EVENTS

(For past private international law events outside the Herbert Smith Freehills Series please click here)


2011 Events

Insolvency: Current Questions in Cross-Border Scenarios

Punitive Damages - Europe Strikes Back!?

The Brussels I Review Proposal

The Optional EU Contract Law Instrument - What to Expect?

2009-2010 Events

Death of the pro-enforcement myth? Arbitration and England after Dallah

Extraterritoriality and Collective Redress

Rome II - Case Law and Controversy

New Developments in Arbitration Law and Practice - From Class Arbitration to Brussels I

Private International Law - Challenges for Today's Markets

Jurisdiction Agreements on Trial: Current Problems - Future Solutions

Lis Pendens in International Litigation

Enforcing Arbitration Agreements: West Tankers - Where are we? Where do we go from here?

2008 Events

Group Actions, including Class Actions: Cross-border Aspects

The Rome I Regulation: the UK Set to Opt-in

Matrimonial Property Regimes in the Conflict of Laws: A European Regime?

Financial Groups: A Fragmented EU Insolvency Regime

2007 Events

Bear Stearns: Recognition of Foreign Insolvency Proceedings in the US

West Tankers: Anti-Suit Injunctions to Protect Arbitration Agreements

Rome I and Rome II - What Europe has in mind

Cross-border Debt Collection: Attachment of Bank Accounts

The Future of International Patent Litigation in Europe

Jurisdiction in IP Disputes

Non-justiciability: Reappraisal of Buttes Gas in the Light of Recent Decisions

2006 Events

Civil Remedies for Torture in the UK Courts: Jones v Saudi Arabia

Substance and Procedure in the Law Applicable to Torts: Harding v Wealands and the Rome II Regulation

The Future of Private International Law in England and Wales

The Cross-Border Use of Public Documents in the EU

European Commission's Rome I Proposal

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