Publications

Highlights

The fourth edition of the Yearbook on Procedural Law of the Court of Justice of the European Union, edited by Professors Daniel Sarmiento, Hélène Ruiz Fabri and Burkhard Hess, comprises chapters authored by the participants in the Forum held on 7 March 2022 at the Institute. This forum included open dialogue among specialists of EU law and procedural law on cutting-edge procedural issues which arise in the CJEU proceedings and case law, providing an update on general procedural issues.

The Mixed Arbitral Tribunals, 1919–1939: An Experiment in the International Adjudication of Private Rights, edited by Prof. Hélène Ruiz Fabri and Dr Michel Erpelding (NOMOS, 2023)

Built upon the presentations and discussions held during an international conference organised at the MPI premisses in the Fall of 2021, the book The Mixed Arbitral Tribunals, 1919–1939: An Experiment in the International Adjudication of Private Rights is the first book-length publication on the Mixed Arbitral Tribunals (‘MATs’) published since 1947. The creation of the MATs was a major contribution of the post-WWI peace treaties to the development of international adjudication. Numerically speaking, the 39 MATs were undoubtedly the busiest international courts of their time. Taken together, they handled up to 100 000 claims, mostly covering private rights. The MATs are similarly remarkable from a procedural point of view. First, their respective rules of procedure were so detailed that contemporaries described them as ‘miniature civil procedure codes’. Second, in a departure from most other international courts and tribunals, they also allowed individuals whose rights were at stake to become involved in the proceedings before them. Although the MATs failed to produce a universally consistent body of case-law, their collection of published decisions was a major source for legal doctrine in the 1920s and 1930s and remains of interest for international lawyers today. The MATs themselves served as a source of inspiration for other international and supranational courts and tribunals, including the European Court of Justice. And yet, like many other international ‘experiments’ of the interwar period, the MATs are often barely mentioned in post-WWII accounts of international law. What motives and models inspired the creators of the MATs? What were their distinctive features? How did these institutions and mechanism operate in practice? Who were the people that staffed them? Who were the claimants? How did contemporaries perceive these institutions? To what extent did the MATs contribute to a ‘judicialization’ of international relations? What is their relevance for contemporary international law? And finally: how did they disappear into quasi-oblivion? These are some of the questions that this book aims to address.

Published in Open Access, the book is available here.

The latest issue (vol. 24, n°2) of the Journal of World Investment and Trade (JWIT), for which Prof Ruiz Fabri is a co-editor-in-chief with Prof. Stephan. Schill, has been released. You can read it here.

In 2021, the European Commission requested the Informal Company Law Expert Group (ICLEG) to consider the issue of cross-border use of company information in the framework of the initiative ‘Upgrading Digital Company Law’, and three ICLEG members, including Prof. Pierre-Henri Conac with Jesper Lau Hansen and Jessica Schmidt, were charged with producing a report on behalf of the Group.

Access to company information is crucial for public trust and a fair business environment in the EU. The internal market requires companies to operate across borders with effective access to information, while keeping costs low. BRIS facilitates data distribution but mutual recognition of registered data should be enhanced beyond BRIS. This report aims to interconnect company information for public and company benefit. Factors for effective use of national company register information include the once-only principle, scrutiny of information, reliance on registered information, and mutual recognition of register data. These factors are thoroughly examined exmined in the study.

The full report is available here.

In 2021, building upon the initiative ‘Upgrading Digital Company Law’, the European Commission requested ICLEG to consider the improving of transparency on company data (mainly focused on groups, on disclosure of shareholders and extending BRIS publicity to other entities). Prof. Pierre-Henri Conac participated to the drafting as an expert.

Companies' stakeholders require access to information on group existence and structure. There are three legal policy approaches to information duties on groups: (1) registral publicity, which would extend the current business register disclosure regime; (2) accounting publicity; and (3) commercial publicity. Registral publicity is the preferred proposal, which would require the Company Law Directive to define "parent" and "subsidiary." The second proposal would impose a duty on every group member to identify its parent in its commercial correspondence or on its website. It should also be considered to make information about private limited company shareholders available via BRIS.

The full report is available here.

Following those works, and after extensive consultations with various stakeholders, the European Commission published on 29 March a Directive Proposal amending Directives 2009/102/EC and (EU) 2017/1132 as regards further expanding and upgrading the use of digital tools and processes in company law, 2023/0089 (COD). The text of the press release and proposal of directive is available here.

Articles

In ‘Is all gold that glitters? The EU Commission Proposal on empowering consumers for the green transition’ (REDC, 2023/1), Bianca Nalbandian explains that a more sustainable socio-economic model is what we need to avoid worsening the climate crisis we are facing. As consumers’ role has gradually shifted from one of the passive bystanders to one of active participants in pursuing environmental and sustainable consumption policies, the concepts of circular economy and consumer engagement have come to the forefront of the political debate. In this connection, the European Union has been moving the target of consumer law with the recently proposed Directive COM(2022) 143 on empowering consumers for the green transition through better protection against unfair practices and better information. The proposed Directive sets the ambitious goal of the European sustainable consumption paradigm by targeting misleading and unfair commercial practices that could deceive consumers away from sustainable consumption choices. Against this backdrop, this paper aims at first locating the Commission’s Proposal in the context of pursuing a more sustainable and circular economic paradigm. Secondly, it provides an overview of its main features, and the most relevant critics advanced by stakeholders and specialists in the field.

Harrison Mbori’s article, entitled ‘Trade Remedies as Emancipatory Mechanisms for Competitive Price Differentiation Challenges Within and Outside the African Continental Free Trade Area (AfCFTA)’, addresses the question of the relevance of international trade remedies in the 21^st century. It argues that African states should implement trade remedies through larger regional trading arrangements and blocs, particularly at the continental level within the African Continental Free Trade Agreement (AfCFTA). The paper also argues that trade remedies should first be eliminated at the multilateral level, but since this might not happen soon, they are here to stay. Therefore, African states should eliminate trade remedies internally and focus on alternative means of addressing the negative consequences of free trade, such as creating free trade areas and custom unions, including a continental competition policy. However, these arguments assume that the current international trading system is fair and ensures economic justice for African states and the people of Africa, which the paper questions. The paper begins by discussing the current international trading system's negative impact, providing a Third World Approach to International Law (TWAIL) backdrop for the two arguments presented.

The EU Service Regulation changed cross-border service by postal services as of 1 July 2022. In their article entitled ‘Of party requested service by post and courts as transmitting agencies under the EU Service Regulation (IPRax 2023, 146), Hannah Deters and Niels Elsner analyse a decision by the Higher Regional Court Frankfurt, which stated that Art. 14 EU Service Regulation 2007 only allows a court to effect service in cross-border proceedings. Parties must contact foreign authorities to effect service under Art. 15 EU Service Regulation 2007. The article critically assesses this decision and proposes a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. Parties can send documents to the court and apply for service, with the court acting as a mere transmitting agency.

Carlos Santaló Goris’ article, 'The Domestic Legislative Implementation of the EAPO Regulation: Integration and Frictions with National Civil Procedural Systems', was recently published in the International Journal of Procedural Law (vol. 12, issue 1, pp. 230-251).

Blogpost

UNCITRAL’s Working Group III (WGIII) has been reforming ISDS for 6 years. Due to COVID-19, physical meetings were stopped, and virtual ones began. The first hybrid meeting was held in October 2022, and the January 2023 meeting was also held in hybrid format. Progress was slow initially, but there is now a sense of urgency as the 2026 deadline approaches. The tension between opposing camps is evident, and delegates are determined to tackle controversial issues head-on, such as double hatting, disclosure obligations for adjudicators, and appellate mechanisms. As Dr Günes Ünüvar explains in his blogpost, ‘”Nothing is agreed until everything is agreed”: The Code of Conduct and Reflections on the 44th Session of the UNCITRAL Working Group III’, these issues could make or break a successful reform process.

On 9 March, the Court of Justice (Second Chamber) delivered a preliminary ruling in case C-375/21, Sdruzhenie’ Za Cemyata – dostap do pravosadle’ and Others, about the coordination of two EU measures against air pollution: the Industrial Emissions Directive and the Ambient Air Quality Directive. As a result of assessing the two acts, the Court reinforced the mandatory nature of the air quality limit values vis-à-vis possible derogations foreseen in the Industrial Emissions Directive. In this case, both Advocate General (AG) Kokott and the Second Chamber affirmed the primacy of the air quality standards. However, in his blogposts, ‘Pollution is in the details: Court of Justice prioritises Air Quality Directive’s highest standards over the Industrial Emissions Directive derogations (Case C-375/21 Sdruzhenie’ Za Cemyata – dostap do pravosadle’ and Others)’, Walter Bruno finds differences in reasoning between the AG Opinion and the final judgment reveals differing fundamental approaches. While the AG’s Opinion focuses on air quality plans and leaves more room for discretion to national authorities, the final judgment anchors the coordination of the two directives to strict and objective pollution limit values.