Peter Arnt Nielsen

The Rome I Proposal

In 2006, the Commission of the European Communities tabled a proposal for a Regulation on the Law Applicable to Contractual Obligations (Rome I) (cited as the Proposal).1 The forthcoming Regulation will supercede the Rome Convention on the same subject matter. The Convention has been ratified or acceded to by almost all Member States of the European Union.2 The Rome Convention is, as will be explained, a sophisticated private international law instrument that generally applies to all contractual obligations. The Convention supplements the Brussels I Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil Matters.3 As such, the Rome Convention is a cornerstone in European civil co-operation, and its principal purpose is to eliminate forum shopping by harmonising the choice-of-law rules for contracts.4 Whereas the Rome Convention was negotiated and agreed under the institutional framework for civil co-operation during the 1970s that is on an international legal basis and, as a Convention, the Commission’s Proposal has been tabled in accordance with Articles 61 and 65 of the EC Treaty as a Regulation. This new institutional framework ensures swift and efficient harmonisation, because Regulations, unlike Conventions, do not have to be implemented in April 2007 Journal of Private International Law 29

Current Developments: The State of Play of the Recast of the Brussels I Regulation

The most important elements of the Commission’s Proposal of 14 December 2010 for a new Brussels I Regulation presently under negotiation are discussed. The negotiations are likely to end during the second half of 2012. The Commission focuses on four subjects. First, the Commission proposes that Brussels I should also apply to cases where the defendant is domiciled outside Europe. Second, it proposes to abolish exequatur. Third, the Commission proposes to make jurisdiction agreements more efficient in order to avoid ‘Italian Torpedoes’, and fourthly, it also proposes provisions enhancing the efficiency of arbitration agreements where a party is trying to avoid arbitration.

Current Developments∵The Recast Brussels I Regulation

The most important amendments to the Brussels I Regulation as adopted during the recast negotiations are presented and discussed. The author focuses on four subjects: first, the application of Brussels I to cases where the defendant is domiciled outside the EU; second, the abolition of exequatur; third, the improved efficiency of exclusive choice-of-court agreements; and, fourth, the relationship between litigation and arbitration.

Libel Tourism: English and EU Private International Law

“Libel tourism” is forum shopping whereby the claimant in international libel litigation sues in the state in which he is likely to get the most favourable result. In recent years, the concept has been related to England for a number of reasons. First, English courts can relatively easily assume jurisdiction in inter national libel suits either under English law or the Brussels I Regulation (“Brussels I”).1 Second, because the Rome II Regulation (“Rome II”) does not apply to defamation, the English choice-of-law rules will apply, and in most cases designate English law as the law governing the libel case.2 Third, English libel law, at least hitherto, is very favourable to the person claiming that his reputation has suffered damage, because the claimant has a prima facie case once he has established that the defendant has published a defamatory statement about him. The claimant does not need to prove that the statement is false, or that the defendant acted out of malice. In addition, damages and costs of the proceedings under English law are high by international standards, so the legal system may be relatively costly for persons of limited means.3 As a consequence of this “cocktail”, “the rich and famous come from the four corners of the globe to bring libel actions in England”.4

The Hague Judgments Convention

The Hague Judgments Convention of 2005 is the first global convention on international jurisdiction and recognition and enforcement of judgments in civil and commercial matters. The author explains the political and legal background of the Convention, its content and certain crucial issues during the negotiations of it. Finally, the author discusses the perspectives for international trade given that, in 2009, the USA and the European Union signed the Convention.