Re- De- Co-dification? New Insights on the Codification of Private Law in Europe

M-EPLI Roundtable on May 12th 2017

The Roundtable will address recent developments and new perspectives on the codification of private law from a comparative law viewpoint. Scholars from six jurisdictions from Europe will share their insights on the main alterations and challenges that the codification phenomenon has experienced since the beginning of the twenty-first century. Speakers from continental European, common law, and mixed jurisdictions will meet to assess the virtues and weaknesses of the codification phenomenon, thus offering a forum to discuss the status of a paradigm that spread across part of the Western world.

For registration please contact Lars van Vliet at l.vanvliet@maastrichtuniversity.nl.

 

Organization

The event is part of the Roundtable Series of the Maastricht European Private Law Institute (M-EPLI), and is organized by Lars van Vliet (l.vanvliet@maastrichtuniversity.nl) and Agustí­n Parise. Funds for the realization of the event were provided by the Science Committee of the Faculty of Law of Maastricht University and the University Fund Limburg.

 

Location

Tapijnkazerne 21 ‘Building Z’, 6211 ME Maastricht

 

Programme

09:00 Opening Remarks, Lars van Vliet (Maastricht University)

 

First Session
Moderator: Bram Akkermans (Maastricht University)

09:05 William Swadling (University of Oxford, England)
Perspectives from England
09:25 Discussion

09:40 Martin A. Hogg (Edinburgh Law School, Scotland)
Perspectives from Scotland
10:00 Discussion

10:15 Jan Smits (Maastricht University)
Perspectives from the Netherlands
10:35 Discussion

10:50 Coffee Break

 

Second Session
Moderator: Lotte Meurkens (Maastricht University)

11:15 Monika Hinteregger (Karl-Franzens-Universität Graz, Austria)
Perspectives from Austria
11:35 Discussion

11:50 Vincent Sagaert (KU Leuven, Belgium)
Perspectives from Belgium
12:10 Discussion

12:25 Mustapha Mekki (Université Paris XIII, IRDA, France)
Perspectives from France
12:45 Discussion

13:00 General Discussion, moderated by Gijs van Dijck (Maastricht University)

13:15 Closing Remarks, Agustín Parise (Maastricht University)

13:30 Lunch (Faculty of Law, Bouillonstraat 1-3, 6211 LH Maastricht)

 

For registration please contact Lars van Vliet at l.vanvliet@maastrichtuniversity.nl.

 

read more

The Netherlands out of the EU: What does it cost us?

In the light of the upcoming general elections in the Netherlands, a lot of citizens are questioning the membership of the country in the European Union. What are the consequences of a possible NEXIT and what are the pros and cons thereof?

In this KNAW symposium in Maastricht four KNAW-members, including M-EPLI’s Jan Smits, will cover what will happen after the Netherlands leave the EU. A special focus will be laid on the areas of criminal law, private law, and economics. This event will be held in Dutch.

Time: 9th March 2017, 7pm till 9.15pm

Location: Maastricht University Hoofdgebouw, Aula, Minderbroedersberg 4-6, 6211 LK Maastricht

Participants:

  • Arnoud Boot, full professor of economics at Amsterdam University
  • André Klip, full professor of criminal law at Maastricht University
  • Corien Prins, full professor of law and computerisation at Tilburg University and soon chairwoman of WRR
  • Jan Smits, full professor of private law at Maastricht University

This symposium and the debate will be moderated by Corien Prins.

Free registration is required. Please click here.

read more

Can families of ISIS-victims sue twitter?

By Professor Michael G. Faure

Recently it was brought in the news that families of Americans killed by ISIS in Belgium and France sued twitter for allegedly failing to keep members of the terrorist organisation of its platform. It was a typical case whereby American victims were killed in Europe but lawsuits are brought in the United States, probably on the basis of the nationality of the victims and their relatives, but maybe also on the link between twitter and the US. This lawsuit raises a number of interesting and legal questions. From a legal perspective the first question which obviously arises in such a tort suit is whether one can hold that the defendant, in this particular case twitter, has acted wrongfully. Were such a case not brought in the US but in any of the EU Member States, the question would arise whether the behaviour of twitter would have violated a standard of care or could be considered a fault. According to the newsflashes the plaintiffs argue in court that twitter violated the Anti-terrorism Act. If that were the case in most European legal systems such a violation of an explicit statutory obligation would almost automatically be considered wrongfulness. But the question would of course arise whether that violation of a statutory duty is as clear as the plaintiffs argue. In addition to wrongfulness plaintiffs would have to show damage, which unfortunately, would in this particular case not be the most difficult aspect of the suit. But probably the most complicated requirement from the plaintiffs’ perspective is that they would also have to show a causal link between any wrongfulness by twitter (assuming that there is) and the damage they have suffered. Most legal systems would at least require that plaintiffs show that but for the wrongfulness of twitter the damage would not have occurred. In other words, it would have to be clear (and proven by the plaintiffs) that without the wrongfulness by twitter (in presumably not preventing ISIS to use its platform) the damage would not have emerged or not in the same way. In legal terms: the wrongfulness by twitter would have to be the conditio sine qua non (CSQN) for the damage. But even if plaintiffs would be able to prove that most legal systems would hold that in addition to this physical CSQN connection (often considered as causality) plaintiffs should also show legal causation in order to make twitter liable. Depending upon the formulation in the legal system it usually means that even when the wrongfulness is considered CSQN plaintiffs would still have to show that the contribution was sufficiently important, in other words adequate to cause the damage. The defendant twitter in this particular case would undoubtedly hold that other factors about which twitter has no control whatsoever were much more important in the emergence of the damage.

In addition to those legal issues one could equally ask the question which social goals these types of lawsuits serve. From a victim’s perspective the goal is obviously compensation. In order to seek compensation victims often sue others than primary tortfeasors, especially when the primary tortfeasors (like terrorists) are insolvent and therefore “judgment proof”. That has brought about a tendency in tort law to bring lawsuits against a variety of gatekeepers, varying from banks lending money, auditors or related corporations. Twitter is yet another (gatekeeper) in the long list of “indirect tortfeasors” where victims who cannot claim against direct tortfeasor seem redress. As a compensation tool tort law always has its limits. The factual and legal barriers to obtain compensation via tort law are often high. That is why in many legal systems (both in the US and in Europe) alternative compensation mechanisms have been worked out to compensate victims of terrorism, for example via first party (victim) insurance, supported through a reinsurance by the state (via the Terrorism-risk Insurance Act – TRIA in the US). However, tort suits do not only have a compensatory function (although that may be the primary interest for the victim). Tort law equally provides incentives to prevention to both direct and indirect tortfeasors and thereby tort law also has an important social function. Even when the plaintiffs in New York may not be successful in obtaining compensation, the lawsuit provides an important signal to twitter (and obviously also to similar providers of internet services to terrorist networks), being that they need to be increasingly alert to whom they provide those services and for which they are specifically used. An exposure to tort liability may hence exercise an important preventive function. If that succeeds and providers of internet services more critically screen the use and users of their services, this could in the end reduce terrorism risk. If that were the case tort law would have exercised its preventive function.

Read more: Faure, M.G., “Attribution of Liability: An Economic Analysis of Various Cases”, Chicago-Kent Law Review, 2016, Vol. 91(2), 603-635.

read more

European Private International Law (2nd edition) by Geert Van Calster

The second edition of van Calster’s European Private International Law provides an accessible, informed and up-to-date account of some of the private international law (PIL) topics covered at undergraduate level.

The foundations of PIL and its principles are presented in an approachable style. Among them are the usual suspects such as preliminary questions, characterisation, renvoi, prorogation, and the application of overriding mandatory rules, to name but a few.  These are introduced with reference to examples from European legislative instruments and case law; this practical approach will be welcomed by students and practitioners

The principal focus is on European PIL legislation in the fields of contractual and non-contractual obligations (including the Brussels I Recast Regulation, Rome I and Rome II Regulations, Insolvency Regulation), corporate social responsibility and the more recent Succession Regulation. While this edition does not profess to be an exhaustive book on European PIL, the only criticism that one may level – particularly from a reader interested in cross-border family law – is that the EU PIL instruments relevant to the field of family law are excluded from the analysis.

It is clear that van Calster is particularly interested in the impact of European harmonisation of all stages of PIL and the potential for regulatory competition in international dispute resolution. This adds an interesting perspective to how PIL can assist businesses in providing a level playing field and provide greater legal certainty to promote cross-border business integration.

Unlike many other texts on European PIL, van Calster draws from his experience in legal practice to provide examples of the reality of the application of PIL in practice. The case reviews add particular depth to the doctrinal principles and provide additional context to the application of the European PIL instruments discussed. This is one of the key strengths of the book.

The book will be of particular interest to academics, practitioners and undergraduate students. It can be ordered here (Hart Publishing).

Written by Dr Michael Wells-Greco, Maastricht University

9781849466721

read more