EAPIL Working Groups

The Association invites members to establish Working Groups under the auspices of EAPIL to reflect on topics of private international law and submit their conclusions for endorsement by the Association. Since it is one of the main aims of the Association to offer a pan-European forum to discuss issues of private international law, Working Groups should include members representing a variety of European legal systems.

Nature and purpose of Working Groups

The Association welcomes the constitution of Working Groups on any topic of private international law, whether broad or specific, theoretical or practical. The purpose of Working Groups is to produce documents of various kinds and forms: reports, draft legislation, principles, recommendations, position papers, etc. The time frame of Working Groups may also vary.

Involvement of other members

The members establishing a Working Group can propose to allow the involvement of other interested members in one of two ways:

1. They may propose to establish a Working Group which will be open to the participation of any interested member.
2. They may, for efficiency or other purposes, establish a Working Group with a limited number of participants, and ask for the establishment of a Members’ Consultative Committee, to which they will report on a regular basis. The Members’ Consultative Committee is open to all interested members.

Submitting a proposal for a Working Group

Ordinary members may submit proposals for establishing a Working Group to the Board. Proposals should include:

1. A description of the project, including the issues to be addressed, the form contemplated for its publication and a time frame.
2. The names of at least five ordinary members willing to participate in the working group.
3. The identification of one or two ordinary members responsible for its progress and completion (responsible members).
4. The preferred way to involve interested members in the work of the group.

Approval of Working Groups

Proposals to establish a Working Group must be approved by the Scientific Council. When assessing a proposal, the Scientific Council shall consider:

– the academic or practical interest of the project;
– the European legal systems represented in the prospective Working Group;
– the credentials of the prospective Working Group members including, in Working Groups with a strong practical dimension, their practical experience;
– the proper representation of different gender;
– the proposal to involve interested members.

When approving a Working Group, the Scientific Council appoints one or two ordinary members as responsible members (Working Group Chairs) and provides them with a mandate. The Scientific Council may also establish a Members’ Consultative Group, appoint its chair and decide how regularly the Working Group should report.

Procedure and endorsement of Working Groups

The Working Group Chairs are responsible for organizing regular meetings of the Group and completing their mandate within the timeframe set up therein.

Where a Members’ Consultative Group has been established, the Working Group should inform the Members’ Consultative Group of its progress in accordance with the decision of the Scientific Council. In particular, the Working Group should seek comments from the Members’ Consultative Group and answer all questions.

Once the Working Group has completed its work, it submits it for approval to the Scientific Council. Projects approved by the Scientific Council are submitted to the General Assembly for endorsement.

Existing Working Groups

Project on the Feasibility of a European Private International Law Act

The Working Group on the Feasibility of a European Private International Law is chaired by Thomas Kadner Graziano. For more information, please refer to the Group’s page.

Project on a future European Regulation on International Property Law

So far, International Property Law has not been a subject matter in the ongoing process of Europeanisation of Private International Law through Regulations. This does not mean that the European legislator has not yet touched property law. The Regulations on matrimonial property and on succession have certain overlaps with international property law which the CJEU is in the process of clarifying (see e.g. the famous Kubicka case). Rights in rem also play a role for the rules on exclusive jurisdiction (Art. 24 nr. 1 Brussels Ibis Regulation). Furthermore, numerous directives, especially in the realm of finance law, use the lex rei sitae as a connecting factor.

This fragmented picture and the fact that Member States’ autonomous rules on international property law are by far not uniform although most, if not all, still use the lex rei sitae principle as a starting point, call for a European Regulation on the law applicable to proprietary rights. The project is meant to be limited to tangible movable and immovable property, leaving out rights in intangibles (claims, intellectual property rights) and securities whether incorporated or unincorporated.

The group is chaired by Prof. Dr. Eva-Maria Kieninger (Kieninger@jura.uni-wuerzburg.de).

Future Working Groups

The establishment of several other working groups is currently contemplated. Proposals will be submitted for approval to the Scientific Committee once an appropriate number of members has expressed interest to join them. Any interested member is invited to contact the responsible person for the relevant group.

Project on Interests in European Private International Law

The issue of interests is a topic of the highest practical importance, which is raised by the award of any sums of money. In cross-border relations, it is necessary to assess which law applies to them, whether at the adjudicatory stage when a court rules on a financial claim, or at the enforcement stage, when an enforcement authority is requested to enforce a foreign judgment. Yet, European Regulations of PIL are largely silent on the topic. The working group will aim at proposing either amendments to existing legislation or interpretations addressing these issues.

Members interested to join the working group or follow its work in the Members Consultative Committee are invited to contact Prof. Dr. Caroline Kleiner (caroline.kleiner@parisdescartes.fr).

Project on the Law Applicable to Choice of Court Agreements

 

European private international law has long provided for uniform rules regarding the formal validity of choice of court agreements. However, only the Brussels I bis Regulation has addressed the issue of substantive validity of such agreements. Article 25(1) of the latter Regulation provides that the court(s) chosen by the parties have jurisdiction “unless the agreement is null and void as to its substantive validity under the law of [the] Member State [of the chosen court(s)]”. Recital 20 of the Regulation states that the substantive validity of a choice of court agreement should be assessed in accordance with the law of the Member State of the court designated in the agreement itself, ‘including the conflict-of-laws rules of that Member State’. Article 25(1) therefore requires that the court seised in breach of a jurisdiction agreement applies the conflict of-laws rules of the Member State of the designated court, and the law specified thereunder, when the substantive validity of the agreement is challenged. Courts may face practical difficulties when following this path. Actually, various Member States have no clear rules on the law applicable to the substantive validity of choice of court agreements.

The proposed Working Group has three goals. First, the Group intends to carry out a comparative study on the choice of law rules applied across EU Member States regarding the validity of choice of court agreements. The situation in third countries would also be covered, especially in the contracting States of the Lugano Convention and of the 2005 Hague Convention on Choice of Court Agreements (which follows the same approach). Second, the Working Group aims to explore the possibility of drafting uniform conflict-of-laws rule(s) on the validity of choice of court agreements, either to supersede or to complement existing domestic rules. Third, subject to further assessment, the Group intends to propose uniform substantive rules on the substantive validity of choice of court agreements. These would deal, inter alia, with the validity of “asymmetric” agreements and the enforceability of agreements evading the application of an overriding mandatory provision of the forum State.

Interested EAPIL members are encouraged to contact Laurence Usunier at laurence.usunier@cyu.fr or Eva Lein at eva.lein@unil.ch.