Agrégateur de flux

Gustavo Moser has authored a new book on choice of law in cross-border sales. He has kindly provided the following summary:

The choice of a governing contract law is a paramount contractual decision. This is because the governing contract law will dictate a contract’s life from beginning to end, thereby attaching legal and economic consequences to each step taken in the course of a contractual relationship. Yet, this choice is seldom subject to an ex anteevaluation by the parties being rather often defer to an ex postverification. Would this be a contracting parties’ behaviour verified in cross-border contracts? If so, what would be the underlying cause(s) of this pattern of conduct?

Despite its acknowledged theoretical importance, it is often suggested that negotiators might dedicate less attention than they should to the particulars of the choice of law clause. Instead, negotiators tend to opt for law that may be convenient for business, or be the result of previous experiences, including, for example, following in a partner’s footsteps, or a successful deal in the past, without further deliberation. Parties may thus simply attribute a “tag” to this experience and evaluate it according to the outcomes achieved in these previous experiences. However, these evaluations may not always be accurate and can be clouded by emotion. Are there rational and non-rational elements involved in this choice? How can we ascertain these elements?

In light of this apparent discrepancy between theory and practice, we decided to investigate further how traders actually choose the law for their deals. We also wanted to find out the reasons for these decisions and the foundations on which these decisions are based. We therefore mapped out and delved into studies and surveys conducted in the past to appreciate the empirical efforts that had been undertaken so far.

Despite their unquestionable importance, scarce information is available in these studies on how this decision is taken, and the main factors informing choice of governing contract law. The alternatives available to improving and optimising this choice are likewise unexplored.

Additionally, the connection and role of law, economics and psychology in decision-making processes is often underexplored and possibly underestimated. Unfortunately, in a dynamic, globalized and complex world of contracts, interdisciplinary approaches are rarely studied. Therefore, there does not seem to be any answer to these practical questions:

• Are contracting parties maximizers of their welfare?
• Are they, generally speaking, self-interested players who seek to reach efficient results?
• Does it depend on the context and external stimuli?
• Do emotions play any role in the choice?
• Can these emotions cloud or enlighten the judgment of these choices? If so, to what extent?
• How can we avoid, control or minimize the effects of these emotional factors?
• How can parties seek to influence and improve choice of governing contract law?

This is how the Global Empirical Survey on Choice of Law (for the purposes of this summary, the Global Empirical Survey) was conceived in 2014. The survey was essentially designed to investigate parties’ concerns regarding choice of law, reveal how and what factors determine the way contracting parties choose the law to govern their agreements, and to assess whether neutral legal frameworks were welcome in addressing these concerns.

The first chapter of the book sets out evidence on the choice of law and include a focus on how negotiators typically approach the subject and what are the main drives and triggers of this decision. We further investigate whether contracting parties are aware of the vast legal market options available and whether they actually enjoy their benefits. The first part also unveil the results of the Global Empirical Survey, which shown a rather clearer picture of the imperfections produced by cognitive limitations while choosing a governing contract law. In the second and third chapters, we map out some of the market distortions and imperfections to which negotiators are (consciously or not) routinely exposed. We also reveal the common psychological triggers that influence decision-making processes and how to identify and better control them to a party’s best advantage. We further shed light on the idiosyncratic contract design and the mechanisms to manage this properly in an international context, all in an attempt to identify and use the appropriate tools to make better decisions and obtain more efficient outcomes.

Readers will subsequently be invited to consider the major market distortions and failures to which contracting parties are routinely exposed.  We demonstrate that, with the increase of market activities and complexity of deals worldwide, parties need to be equipped with the most efficient tools to maximize gains from cross-border contracts, thereby avoiding risks and costly mistakes. With this purpose in mind, we analyse choice of law studies undertaken and offer alternatives to be used in practice, which seek to overcome recurrent complaints, uncertainties and fears when it comes to choosing governing contract law, including potential interplays and intersections with jurisdictional choices. We also attempt to verify the effectiveness of these solutions in light of the evidence presented.

The final chapter of the book concentrates on alternatives to escape “arm-wrestling”, “home turf”, deadlock situations and other tactical scenarios in cross-border contracts. We present and compare alternatives which can be used in international contract settings and then test the effectiveness of the solutions they can provide, taking into account both the legal and economic aspects and contracting parties’ real-life concerns and preferences collected in the earlier chapters. Readers are invited to find out the answers to the following questions: what really matters to contracting parties when drafting choice-of-law clauses? Are there key provisions, “backbones”, legal standards or frameworks that are indeed indispensable? Do contracting parties consider legal and economic choices at all? With this in mind, we aim to offer to legal practitioners tools that enable them to excel and effectively optimise, at a rather even level between parties, the exchange of goods worldwide.

 

 

 

 

 

 

 

 

 

Readers can file this one under ‘exotic’. The title of this piece does not quite give it away yet: this post is a serious post on customs classification.

My wife and I have a more than average size family, ditto therefore also the family car. Our previous version was black. We had parked it a few summers ago on the village square close to the home of one of my sisters in law, a sleepy French hamlet. A local lady came up to me and asked respectfully who had passed away… She mistook our car for a hearse, leading to my brother-in-law suggesting I should put some stickers up saying ‘ceci n’est pas un corbillard’.

Now, to the serious issue: in Case C-445/17 Pilato, the Court of Justice was asked (the case was triggered by a BTI: Binding Tariff Information) how to classify a hearse under the EU’s combined nomenclature: heading 8704 (motor vehicles for the transport of goods); 8705 (special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units); or 8703 (Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars).

The Italian customs authorities have classified under 8703 – the importer is appealing, I am assuming given the higher tariff attracted by that heading. Arguments are very serious and technical, as one would expect for customs classification: details on separation racks, etc.

The Court held Wednesday last: at 25: the intended use of a product may constitute an objective criterion for classification; at 30: hearses are particularly built and equipped for the transport of coffins, which contain corpses. A human body, even lifeless, cannot be treated in the same way as goods which may be the subject, as such, of commercial transactions. Therefore, the principal use of hearses is for the transport of persons. 8703 it is (the Court gives some more reasons).

Exactly the kind of case which makes trade classes a little lighter a the right time (the best case for that, ever, involved my wife having to classify a shipment of toy replica. Details on that case I fear are strictly for students of my WTO class).

Geert.

 

C’est aujourd’hui la dernière édition avant une reprise, que nous espérons tonitruante, le 3 septembre.

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The Asser Institute in The Hague (the Netherlands) is looking for a Researcher in Private International Law (full time – 38 hours per week).

The successful candidate is expected to start preferably from 1 November 2018 and will be conducting research on the Brussels I bis Regulation as part of a DG JUST research project, among other things. He or she will strengthen the research capacity of the Asser Institute in the area of private international law, working within its Research Strand on adequate dispute settlement, and in the context of the Institute’s Strategic Research Agenda.

Applications must be submitted before 7 September 2018.

Remuneration depends on the actual level of education, experience and knowledge with a maximum of € 4,852.-  gross per month based on a full time equivalent (38 hours). Secondary benefits at Dutch universities are attractive and include 8% holiday allowance and an 8.3% year-end allowance.

Applicants are expected to be fluent in Dutch (preferably native) and English. In addition, applicants should have earned a PhD in private international law and have post-doctoral research experience, among other things.

Further information is available here.

There are many scientific and legal /regulatory angles to the pollution caused by micro and nanoplastics (MNPs). I was pleased to have been invited to be part of a scoping exercise with the European Commissions Group of Chief Scientific Advisors, following which that Group issued its initial statement early July.

MNPs is an issue where the EU undoubtedly can recognise its regulatory leadership – at the same time appreciating that the challenge is of a truly global nature (many of the worst plastics pollution issues are located in river deltas way outside EU borders). At the scientific level, studies particularly in the marine environment show cause for great concern – but not necessarily easy fixes.

I accepted therefore to be part of the SAPEA Consortium (Science Advice for Policy by European Academies) Working Group on MNPs, which will oversee in first instance the collation of the state of the art: from a regulatory as well as a scientific point of view – and subject to tight deadlines.

Autumn should be interesting.

Geert.

 

La Cour de Luxembourg définit le champ et les effets de l’exemption de la mutagénèse de la directive 2001/18/CE dite « directive OGM », qui régit la dissémination volontaire dans l’environnement d’organismes génétiquement modifiés.

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Pourvoi c/ Cour d'assises des Haut-de-Seine, 9 février 2018

Many thanks to Julien Juret for asking me contribute to l’Observateur de Bruxelles, the review of the French Bar representation in Brussels (la Délégation des barreaux de France). I wrote this piece on the rather problematic implications of the GDPR, the General Data Protection Regulation, on jurisdictional grounds for invasion of privacy.

I conclude that the Commission’s introduction of Article 79 GDPR without much debate or justification, will lead to a patchwork of fora for infringement of personality rights. Not only will it take a while to settle the many complex issues which arise in their precise application. Their very existence arguably will distract from harmonised compliance of the GDPR rules.

I owe Julien and his colleagues the French translation (as well as their patience in my late delivery) for I wrote the piece initially in English. Readers who would like to receive a copy of that EN original, please just send me an e-mail.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

Malgré des versions très différentes, en raison de l’embolie du calendrier législatif, Assemblée et Sénat se sont accordés sur un compromis concernant le projet de loi de lutte contre les violences sexuelles et sexistes. En deça des intentions initiales du gouvernement, il contient plusieurs innovations.

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Commission / Espagne
Environnement et consommateurs
Pour avoir tardé à mettre en œuvre la directive sur le traitement des eaux urbaines résiduaires, l’Espagne est condamnée à payer une somme forfaitaire de 12 millions d’euros et une astreinte d’environ 11 millions d’euros par semestre de retard

Commission / United Parcel Service
Concurrence
L’avocat général Kokott propose à la Cour de confirmer que la décision par laquelle la Commission a interdit l’acquisition de TNT Express par UPS doit être annulée pour vice de procédure