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2016-04-doc2 Van Calster on PIL

Within four years after its first release, professor Van Calster (University of Leuven, Belgium) presents the second edition of his book on European Private International Law. In some circles the theme is also referred to as international private law or conflicts of laws. See Geert van Calster, European Private International Law, 2nd ed., Portland, Oregon: Hart Publishing 2016, lv + 520 pp.

The book starts with a tight order, after an introduction (Chapter 1), on what the author designates as the core of European private international law: jurisdiction (Ch. 2), applicable law for contracts (Ch. 3) and for tort (Ch. 4). Jurisdiction is presented broadly, also including recognition and enforcement. That’s roughly half of the volume.

Then the author brings in his personal favourites. Ch. 5 (50 pages) deals with the Insolvency Regulation. Van Calster should be praised here, as many PIL experts succeed in avoiding this complex area of law; Ch. 6 (20 pages) on the European Succession Regulation comes as a surprise where the preface says that the book prioritises the areas which are of most relevance to commercial practice in the EU (leaving out family law).

In the last two chapters the authors touches upon an established evergreen (Ch. 7 on freedom of establishment, from Daily Mail to Grid Indus) and this century’s new kid in the area (Ch. 8 on corporate social responsibility). This chapter includes a treatment of the U.S. Alien Tort Statute as well as piercing the corporate veil and compliance strategies, inside and outside competition law. The text of the book reflects the state of law on 1 January 2016.

Like its predecessor, the second edition focuses on practitioners, student and policy-makers. Let me display a selection of what they will find. Ch. 1 evidently discusses concept, nature, development and sources of PIL and the processes to look for the needle in the haystack of PIL, ie the search for connecting factors for different types of norms, and so on. Interesting I found the development of PIL in an EU context (referring to the relevant provisions in the text of treaties, such as Maastricht and Amsterdam). Starting some 25 years ago with the marginal mentioning of PIL in EU legislative documents, PIL has gained weight in its meaning and its growth, within the EU, to a cornerstone in the ongoing establishment of an area of freedom, security and justice.

Ch. 2’s central focus is on Regulation 1215/2012 on jurisdiction and the recognition and enforcements of judgments in civil and commercial matters. This recast of the Judgements Regulation (or: Brussels I Regulation) came into force 10 January 2015. This chapter (of some 180 pages) is a must read for practitioners, as it fully explains the workings of Brussels I, with references to many of the CJEU court cases. Although the author has chosen not to include too many references to scholarship in his book (‘… to keep this book to a manageable size’, which is not the strongest argument), this chapter also refers to sources of literature.

From an insolvency lawyers’ angle (mine) it is interesting to assess the similarity and the alignment of disputes and uncertainties that Brussels I and the Insolvency Regulation are coping with, e.g. the 2013 Maletic case on the presence of an ‘international element’ to have the Brussels I Regulation apply, the meaning of ‘civil and commercial matters’ (Art. 1(1) Brussels I), the meaning of the exclusion (for ‘bankruptcy’) in Art. 1(2) Brussels I and the question whether the two ‘dovetail’ (also in relationship with the Lugano Convention). The treatment makes clear that the author feels like fish in water. To a lesser extend ‘theme compatibility’ (on matters of insolvency) questions may arise with regard to Rome I (the core of Ch. 4) and the Insolvency Regulation. For instance, culpa in contrahendo is excluded from Rome I, but covered under Rome II (Ch. 5). Which one of these regulations will apply when – under the Insolvency Regulation recast, coming into force June 2017 (partly covered in Ch. 6) the insolvency practitioner gives an ‘undertaking’ in the meaning of Art. 36 recast: is it a unilateral promise in the meaning of an offer capable of being accepted by creditors in another Member State? What happens if these creditors wish to negotiate its conditions and the subsequent negotiations fail? Or is such an undertaking ‘unilateral’ and/or does Rome II apply to the insolvency practitioners’ liability for any damage caused to the creditors in that other Member State (in the meaning of Art. 36(10) Insolvency Regulation recast).

A comparison between Rome I and the 2015 The Hague Principles on Choice of Law in International Commercial Contracts forms the finale of Ch. 3. The Insolvency Regulation is the theme of Ch. 6 (around 50 pages). The author is firmly of the opinion that the Insolvency Regulation does not harmonise insolvency law. Unless one wishes to call it ‘unification’, harmonisation is present in the Insolvency Regulation, for instance the duty for liquidators to cross-border cooperate with their colleagues (Art. 31), the duty to inform creditors (Art. 40) and the characteristics of secondary insolvency proceedings (Art. 27ff) which are presently similarly regulated in all Member States (except for the Danes).

In this chapter the author selects his themes. He provides a solid overview of what a ‘collective insolvency proceeding’ is, including an extended and detailed treatment of the dovetailing exercise with Brussels I, analysing all the recent CJEU cases, and an analysis of the famous COMI (Centre of main interest) norm, the connecting factor for jurisdiction under the Regulation. On several themes the author also provides insights on how they are treated in the Insolvency Regulation recast. Quite rightly Van Calster disagrees the judgment of an English High Court case allowing – under the application of the Regulation – the rule of forum non conveniens.

I conclude. This book is a well-written, topical treatment of what many students of commercial law and practitioners in common day commercial practise will seek to do their studies well and perform their work up to standard. From both an academic as a practical angle the core issues arising in the complex and fast developing PIL arena are explained and investigated by an authority in the field. Recommended reading for scholars and practitioners alike.

Bob Wessels,
prof. em. of international insolvency law, University of Leiden, the Netherlands. External Scientific Fellow Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

[April 2016]