Brussels Convention Research Articles

Indicators and Manifestations of the Balancing between International Carriage Parties according to the Rotterdam Rules

The regulations and rules governing maritime transport were not uniform among countries. Such uniformity is due to a failure to accede to a single convention. Countries were either acceded to or withdrawn from the Brussels Convention, and acceded instead to the Hamburg Convention, and so on. As a consequence, international maritime transport provisions no longer have the status of legal unification, making international commercial transactions unstable, in addition to the development in international trade and maritime transport in particular, such as reliance on containerized transport, use of technology in Multimodal transportation and consideration of door-to-door transport as a phase of maritime transport. In response, the United Nations Commission on International Trade Law (UNCITRAL) undertook to prepare a new draft convention on contracts for the international carriage of goods wholly or partly by sea ("Rotterdam Rules"), which was adopted on 11 December 2008. The texts of that Convention are international substantive rules concluded within the framework of an international organization (United Nations), representing a binding and acceptable global regulation, which contain solutions compatible with the relevant international treaties and a balance of the responsibilities and obligations of all parties (carrier and shipper) engaged in the international carriage of goods and associated third parties, And this balance was brought by the rules with many indicators in their rulings that indicated it which govern all different modes of transport as one contract. This is what the study deals with by presentation and analysis, leading to the confirmed results.

CONVENTION RELATING TO THE DISTRIBUTION OF PROGRAMME-CARRYING SIGNALS TRANSMITTED BY SATELLITE AS AN ANONYMATIC INTERNATIONAL TREATMENT FOR THE PROTECTION OF RELATED RIGHTS

Abstract: the successful launch of an artificial satellite of the Earth, the flight of man into space served as an impetus for the emergence and subsequent development of satellite communication systems for transmitting televi‐ sion signals. At the same time, new means of communication, with a wide range of action, raised the issue of the protection of the rights of broad‐ casting organizations, which was to be resolved in 1974 at an international conference in Brussels. The purpose of the article is to determine the position of the Brussels Convention in the system of law through the prism of historical, functional and objective approaches. The author comes to the conclusion that this convention in relation to the Rome Convention of 1961 is a special treaty concerning the regulation of relations in the field of copyright and related rights. The identified distinctive features of the Brussels Convention make it possible to give it the legal status of an atypical treaty.

The Problems of International Civil Law of Indonesia in Protecting Transnational E-Commerce Consumers

Technological advances on a transnational scale have had a considerable impact on all levels of Indonesian society. One of the technological advances is the existence of gadgets. Not only positive effects, but they also bring negative impacts. Furthermore, the existence of gadgets continues to grow with more transactions being carried out. Unfortunately, this can be a dispute. The purpose of this research is to propose the problems of Indonesian International Civil Law which have not regulated and provided guarantees to protect transnational e-Commerce interests and their solutions. The method used in this research is normative with a statutory and conceptual approach. The results of this study are the existence of Consumer Protection Law (UUPK), Electronic Information and Transactions Law (ITE Law), Money Supply Law (UUUP), and International Civil Law (HPI) of Indonesia have not provided a clear guarantee of protection related to the choice of law in transnational scale e-commerce contracts. Besides, they also have not been able to accommodate the interests of consumers. One of the solutions offered is concretizing the principle of the recipient country. It is a rule that allows end-users to apply the Consumer Protection Law of their country. This principle is excluded from consumer transactions. This also does not apply .e-commerce contracts. This principle is taken from the Rome and Brussels Convention which is incorporated into the Directive, namely the Law for the EEC community (Europe Union). To provide legal guarantees for consumers, thus the interests’s of consumers can be protected.

“Public Order” as Grounds for Refusal in the Recognition and Enforcement of a Decision in International Commercial Arbitration: Ukrainian Realities and International Experience

Background: The question of recognition and enforcement of international commercial arbitration (ICA) decisions, as a prototype of a foreign court decision, finds radically opposite answers in different legal systems and in the doctrine of the ICA. Thus, in the Regulation of the Council (EU) 44/2001 of 22 December 2000 on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters, formerly the Brussels Convention of 1968 and the Lugano Convention of 1988, the notion of ‘arbitration’ was excluded from the sphere of execution and recognition of foreign court decisions. Methods: Nevertheless, the procedure for recognising and enforcing an ICA award has a unified approach in many countries around the world. Thus, national courts, when deciding on the recognition and enforcement of an ICA award, are increasingly faced with such problematic issues as the grounds for refusing to recognise and enforce such an award. This article reveals that these grounds for refusing to recognise and enforce the award of the ICA are a violation of public order of the country where the arbitral award is subject to recognition and enforcement. Particular attention is paid to the distinction between ‘substantive’ and ‘procedural’ public order and the practical approaches of national courts in some countries to this issue. Results and Conclusions: The authors state that the way to overcome this inconsistency is still a unified approach to understanding ‘public order’ in all member states of the New York Convention of 1958 and clearer international regulation of this issue.

The Brussels convention: a still-born child

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European Private International Law at 50. Celebrating and Contemplating the 1968 Brussels Convention and Its Successors. Ed. by Geert van Calster, Jura Falconis. – Antwerpen, Cambridge: Intersentia 20

European Private International Law at 50. Celebrating and Contemplating the 1968 Brussels Convention and Its Successors. Ed. by Geert van Calster, Jura Falconis. – Antwerpen, Cambridge: Intersentia 20

Conceptualising Special Jurisdiction for Receipt Orientated Torts on the Internet: Lessons from CJEU Jurisprudence

The Court of Justice (CJEU) has an important role in contributing to the interpretation of norms in private international law. Since the Brussels Convention 1968, the CJEU has interpreted the “place of the harmful event” as the connecting factor to establish international jurisdiction for cross-border torts. In recent years, the CJEU’s interpretative approach has become significant in disputes concerned with three new forms of cross-border online torts, known as receipt orientated torts. The CJEU has distinguished this connecting factor for three types of receipt orientated torts in particular; defamation, intellectual property infringement and anti-competitive behaviour. The aim of this paper is to argue for a special jurisdiction rule for these receipt orientated torts. Such a rule would support the sound administration of justice and the efficient allocation of jurisdiction. The objective of this article is two-fold. First, the article adopts a conceptual framework based on “the underlying reason for jurisdiction, the effect on internet economic activity, and the importance of balancing the interests of the claimant and defendant.” Second, the article uses that framework to show how the CJEU’s interpretation of the connecting factor for special jurisdiction must be adapted for receipt orientated torts. To achieve this objective, the article sets out the CJEU’s response to interpreting the connecting factor for special jurisdiction. The article then identifies how the CJEU has interpreted the connecting factor through the common and specific characteristics of these receipt orientated torts. The article concludes with a proposed future adaptation of Article 7(2) of the Brussels I Bis Regulation which includes a sub-rule for these three categories of receipt orientated torts. The proposal should also be considered in a future international convention on jurisdiction.

The Brussels I Regulation and Third Countries

This essay is a brief critique of the regime established by the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and its successor, the European Union’s Brussels I Regulation. The essay focuses only on those of the regime’s aspects that affect defendants domiciled out-side the EU (third-country defendants) and certain proceedings in courts outside the EU. From the EU perspective, the Brussels regime is an unqualified success. Regrettably, one cannot say the same about some of the regime’s external aspects. In particular, the regime discriminates against third-country defendants by: (1) subjecting them to exorbitant jurisdictional bases available under the national laws of many EU states (although it prohibits the use of those same bases against defendants domiciled in the EU); and (2) mandating recognition of the resulting judgments throughout the EU. Other, more subtle, discriminatory features include the way the regime treats the claims of exclusive jurisdiction of third countries, as compared to EU states, and agreements conferring exclusive jurisdiction on the courts of third countries rather than to courts of EU states. In 2018, a year of coarsened international discourse in which discriminating against “the other” has become a political banner for some forces and threatened or real trade wars and retaliations initiated primarily by one particular political leader are becoming commonplace, these discriminatory features of the Brussels are small potatoes. Nevertheless, if private international law is, as Werner Goldschmidt taught us, the derecho de la tolerancia, we must continue to speak up against intolerances, be they big or small, new or old.

Reflections on the Brussels Convention from the Czech perspective

Reflections on the Brussels Convention from the Czech perspective

The Brussels Convention in International Perspective

The Brussels Convention in International Perspective

The Brussels Convention Fifty Years Later: A View from Across the Atlantic

The Brussels Convention Fifty Years Later: A View from Across the Atlantic

TRANSFORMATION OF THE INSTITUTIONAL BASE OF WORLD CARGO TRANSPORTATION

The practice of international merchant shipping and the practice of international trade in goods are interrelated at different levels - from historical to the level of a separate treaty. Here, contracts for the purchase and sale of goods, transportation, insurance, financing, transport and warehouse documents of title are intertwined and interact. The necessary degree of awareness in these issues is an indispensable condition for both successful business activity and for solving the problems of unification of maritime and commercial law. The process of the unification of law began primarily in the field of international transport law. Universal international legal unification of material norms of contracts of sale of goods was held in 1980 in the form of the Vienna Convention. The creation of the Brussels Convention and the Hamburg Rules was preceded by the study of the commercial and economic aspects of the bill of lading in the trade turnover. For example, in 53 paragraphs of the report of the UNCTAD secretariat on a bill of lading, the following issues were covered in various ways: 1) the inversion of a bill of lading; 2) the effectiveness of its role in the sale of goods - in terms of transfer of ownership or risk of damage, as well as in operations related to shipping conditions (for example, FOB, CIF); 3) the role of the bill of lading in the sale of documents; 4) the role of the bill of lading in bank letters of credit; 5) the effectiveness of the bill of lading as a receipt for the goods; 6) the status of a bill of lading as a contract of carriage; 7) the status of a bill of lading as a document of title. In 1996, UNCTAD discussed the proposal to include in its work program a review of existing practices and legislation in the field of international maritime transport of goods with a view to identifying areas that require uniform rules, and with a view to achieving greater harmonization of laws . The proposal was accompanied by information that in existing national laws and international conventions there are significant gaps regarding the functioning of bills of lading and sea waybills, the connection of these transport documents with the rights and obligations of the seller and buyer of goods, the legal status of entities providing financing to one of the parties to the contract of carriage Cargo. In some states there is a regulatory framework for these issues, but it is not uniform. And in many states there is no regulatory framework in this sphere at all. This circumstance is an obstacle to the free movement of goods and increases the value of transactions. The widespread use of electronic means of communication in the transport of goods further exacerbates the consequences of the fragmentation and non-unification of various laws and leads to the need to develop uniform provisions on specific issues related to the use of the applied technologies.

BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape

This article presents an early view of the impact of BREXIT on English jurisdiction agreements in international commercial contracts. It is almost certain that the Brussels I Recast Regulation will cease to apply in the UK after BREXIT and as a result the near automatic recognition and enforcement of English court judgments in the continuing EU (and Lugano Convention Contracting States) and vice versa will be in jeopardy. Contrary to some recent speculation, it is unlikely that the Brussels Convention will revive and the option to adhere to the Lugano Convention also does not seem to be viable for a newly ‘liberated’ UK. The article suggests practical solutions to minimise the litigation risk arising from English jurisdiction agreements in relation to the EU. Significantly, the Hague Convention on Choice of Court Agreements can be harnessed to regulate English exclusive jurisdiction agreements in relation to the EU in matters within the scope of the Convention. If the courts of a post-BREXIT EU Member State are seised in a case concerning an English exclusive jurisdiction agreement, Article 6 of the Hague Convention should accord deference to the elected forum.

Judicial Discretion in Light of the New European Rules on Jurisdiction in Civil and Commercial Matters: Reform or Continuity?

The free movement of judgments can be presented as a necessary corollary of the European internal market where goods, people, services and capital move freely. The first step towards the adoption of harmonized private international law provisions was made in 1968 with the conclusion of the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In 1999, the entry into force of the Treaty of Amsterdam transferred the competence to legislate in the field of judicial cooperation in civil matters from the Member States to the European Union. This led to the transformation of the 1968 Brussels Convention, an instrument of inter-governmental cooperation, into a Regulation: Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, colloquially known as ‘Brussels I’. Subsequently, a Recast (reform) of the Regulation was agreed in 2012 which substantially amended Brussels I, and will replace it from 10 January 2015. This paper evaluates the extent to which the new jurisdiction rules of the Brussels I Recast impact on the exercise of judicial discretion by courts in the EU. This question is closely linked with the nature of Brussels I as a civilian instrument. Part I will consider how the activism of the European Court of Justice (now Court of Justice of the EU) had reinforced the civilian imprint of the Brussels I Regulation. Part II will assess whether the Recast is breaking away from what has been, for a period, considered the ‘systematic dismantling of the common law of conflict of laws’ by the EC (now EU). The article concludes that under the Brussels I Recast, the domain of both anti-suit injunctions and forum non conveniens has, if anything, been even further reduced. However the Recast has not only corrected some of the unwelcome consequences of an overly civilian interpretation of the Brussels I Regulation but simultaneously introduced, on the whole territory of the EU, a harmonised mechanism of jurisdictional regulation based on judicial discretion (which was hitherto available only in a few Member States). On this aspect, the Recast has the great merit of promoting (at least on paper) a better coordination between European and third States procedures, and one that may be easier to anticipate in third countries.

The structure of carrier’s liability and burden of proof under the United Nations convention on contracts for the international carriage of goods wholly or partly by sea (2009)

ABSTRACTA new development in the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, 2009 (commonly called Rotterdam rules) is the formula it adopted to deal with the basic question of the carrier’s liability. It has set out a new structure of the carrier’s liability and the burden of proof. Still its approach is not totally novel but extracted from the previous maritime conventions. It has preserved the ‘fault-based liability system’ established by the Brussels Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 (also known as Hague Rules), the Hague Rules amended with 1968 Visby Protocol and the SDR protocol of 1979 (Hague-Visby Rules) and International Convention on the Carriage of Goods by Sea 1978 (Hamburg Rules). This piece of work analyses the new structure of carrier’s liability introduced by this convention.

CIVILINĖS IR KOMERCINĖS BYLOS RIBOS REGLAMENTE DĖL JURISDIKCIJOS IR TEISMO SPRENDIMŲ CIVILINĖSE IR KOMERCINĖSE BYLOSE PRIPAŽINIMO IR VYKDYMO

Straipsnyje analizuojamas Briuselio konvencijos ir ją pakeitusių Briuselis I ir Briuselis Ibis reglamentų įtvirtintos konkrečios teisminių ginčų kategorijos, išskiriamos iš civilinės ir komercinės bylos srities. Nagrinėjami ginčai, susiję su bankrotu, socialiniu draudimu ir arbitražu.

TRANSNATIONAL LITIGATION AND ELEMENTS OF FAIR TRIAL

approach. The fair trial guarantee may be invoked to invalidate particular misconceived pieces of legislation or CO restrict their scope of application. It is worth noting that civil law courts are not alone in performing such operations. Judges in every country are more and more aware of belonging to a developing global community. The emergence of such a community of courts may achieve a number of goals in this respect: a cross-fertilization of legal cultures in general, but also solutions to some specific legal problems related to transnational disputes in particular. The Report gives some examples of inconsistencies of civil law systems that can be eliminated by applying the Fair trial guarantee. The first example is related to the lis alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 511 view to prevent litigation before the second seised court. In such situations, avoid abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to retain its jurisdictional powers and to go further with its proceedings, if it pears that the dispute will not be fairly and effectively resolved by the first seised cou The second example is related to the forum non conveniens doctrine. in cases when is absolutely inappropriate for the court vested with jurisdiction to handle proceedir with Foreign parties, e.g. because the court and the lawyer are completely ignorant of t foreign language and reliable translators are not available, the fair trial guarantee de If lata may exceptionally allow the court to decline its jurisdiction, applying the doctri of forum non conveniens. In the light of the U.S. due process guarantee we can look one of the most critical aspects related to the recognition and enforcement of judgment under the Brussels Convention and Regulation no 44/2001. Subject to few exceptio the jurisdiction of the court of the Member State of origin may not be reviewed by the court seised with the enforcement request in other Member States. The public policy defence may not be applied to the rules related to jurisdiction. The European solution is an example of the disproportionate influence of public policy considerations (in d case: the smooth functioning of the internal market) with regard to the balance between the plaintiff's and the defendant's interests. In other words, if the fairness of the exert of jurisdiction over a non-resident defendant is an element of fair trial, the respect this fairness, as is envisaged by the Convention and the EC Regulation no. 44120 norms on jurisdiction, should also be reviewed in the State where the recognition a enforcement is sought, through the public policy defence. It is true that the public policy exception is an emergency brake to be activated only in exceptional cases, but the cases cannot be restricted so as to prejudice the guarantee of a fair trial. National courts should be encouraged to take the opportunity to put a preliminary question before t ECI. under Art. 267, TFEU, on the validity of Art. 28, III, Convention (Arr. 35, I EC Regulation no 44/2001) vis-a-vis Art. 47 of the Charter of Fundamental Rights the European Union. VI. The final part of the report briefly sketches some specific aspects of the fair trial guarantee in transnational disputes, such as the principle of equality, the determinate of the judicial jurisdiction, the interim protection of rights, the right to Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 512 engage a lawyer, the language, the extension of time limits, the question of the abuse of process, the abuse of jurisdiction by the plaintiff, the public policy exception.

A Step Forward in the Harmonization of European Jurisdiction: Regulation Brussels I Recast

Abstract The Brussels regime is a legislative framework that regulates questions of transnational litigation in the European Union. Having been initially shaped upon negotiation of the 1968 Brussels Convention, it has been subsequently superseded and expanded in scope by the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, alongside other instruments addressing specific areas of law. Recently, the Brussels regime has been amended by the Recast Brussels I Regulation, which entered into force on January 15, 2015, bringing about significant and long-awaited change. Addressing the experience of application of its predecessors, the changes in the Recast Regulation have been introduced to the treatment of choice-of-court agreements and their relationship with the lis pendens doctrine, abolition of exequatur, reaffirmation and clarification of the arbitration exclusion, as well as further minor amendments.

Challenges facing the insurance industry since the modernisation of the international nuclear third party liability regime

The modernisation of international conventions governing third-party liability in the nuclear field is essentially an attempt to resolve certain shortcomings whilst setting out higher compensation sums and extending the cover for nuclear damage for which compensation is payable. The latest convention revisions occurred in 2004 and led to the adoption of protocols amending the Paris Convention on Third Party Liability in the Field of Nuclear Energy1 and the Brussels Convention supplementing the Paris Convention.2 However, the substance of the current regimes is largely the result of conventions drawn up in the 1960s and, in the eyes of the general public, the changes made in 2004 are mainly concerned with increasing the compensation sums.

The First Member State Rebellion? The European Court of Justice and the Negotiations of the ‘Luxembourg Protocol’ of 1971

AbstractThis article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a preliminary ruling procedure that had undergone restrictive modifications in comparison with the European Economic Community (EEC) treaty's original (Article 177). Some have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism was being criticised in national administrations. This article will, for the first time, bring to the surface archival evidence to explain why the protocol contained an altered version of Article 177 EEC. Furthermore, it will reveal that the governments' experts' intention to limit the procedure in the protocol caused serious concern inside the ECJ, of which some members consequently repeatedly urged national decision‐makers to opt for formulas identical with Article 177 EEC.