Transnational Notes

Professor Franco Ferrari, the Executive Director of the Center, publishes a paper on the homeward trend and lex forism (entitled Tendance insulariste et lex forisme malgré un droit uniforme de la vente) in the latest issue of the French law journal Revue critique de droit international privé. In the paper, Professor Ferrari shows that although interpreters are generally not supposed to read the United Nations Convention on Contracts for the International Sale of Goods through the lenses of domestic law,  case-law of the various Contracting States shows that courts do not always comply with such prohibition directed at avoiding both the homeward and lex forism. Professor Ferrari then goes on to suggest how to avoid both the homeward trend and lex forism.

In Search of a Global Jurisprudence, 38 U.C.Dav. L. Rev. 1049 (2005) – was cited in Justice Ginsburg’s concurring opinion in the recent decision Chafin v. Chafin (Feb. 19, 2013).  The Court held unanimously that an appeal from an order of return of the child to Scotland was not moot, notwithstanding that no stay had been issued and the child was now in Scotland.  Both the possibility of a re-return order and a vacatur of the lower court’s expense orders meant that the case was not moot.  Justice Ginsburg, in an opinion joined by Justices Breyer and Scalia, offered suggestions for proposed legislation to limit appeals with respect to return orders.

The Supreme Court of Germany cited a paper by Professor Franco Ferrari in a decision concerning the value to be attributed to a given INCOTERM. Professor Ferrari, who is the director of the Law School’s Center for Transnational Litigation and Commercial Law, is an expert on international sales law. In its November 7, 2012, the German court relied on a paper by Ferrari asserting that INCOTERMS are not necessarily to be interpreted on the basis of the understanding attributed to them by the ICC, but may be subject to domestic interpretation where no express reference is made to ICC INCOTERMS.
For the full text of the decision, please click here:

http://www.globalsaleslaw.org/content/api/cisg/urteile/2374.pdf

Professor Franco Ferrari, the Director of the Center, will give a talk and act as a moderator at a conference focusing on International Sales Law to be held on Nov. 15.th-16th, 2012, at Verona University School of Law, in Verona, Italy. Professor Ferrari, an expert on international sales law, will open the two-day conference and give two talks, one focusing on the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, the other on that Convention’s rules on non-conformity. For the full conference program, please click here.

On Nov. 26th and 27th, the Center will co-host a conference on the effects of the CISG’s adoption in Brazil. Scholars from Brazil, Europe and the U.S. will discuss the impact the coming into force of the CISG will have in Brazil and the differences that exist between the CISG and Brazilian law. This event is one of a series of events that the Center has co-hosted around the world on issues relating to international sales law.

Professor Franco Ferrari, Director of the Center for Transnational Litigation and Commercial Law, was voted Titular Member of the International Academy of Comparative Law (IACL). The IACL consists of scholars the principal aim of whom is, according to article 2 of its By-laws, “the comparative study of legal systems”. The Academy, which was founded at The Hague on September 13, 1924, is composed of eighty Titular Members, elected by a two-thirds vote of the Titular Members preceding them. The names of Roscoe Pound, Louis Milliot, Baron Frédericq, C.J. Hamson, Imre Szabo, John Hazard, Paul Crépeau, who have served as presidents of the organization, are indicative of the prestige that the Academy has always enjoyed. For more information of the history of the IACL, please click here: http://www.iuscomparatum.org/141_p_1551/history.html

Hon. Judge Francesco Cortesi, a former Fellow of the Center for Transnational Litigation and Commercial Law, renders a remarkable decision on the United Nations Convention on Contracts for the International Sale of Goods (CISG). In that decision, Judge Cortesi addresses various important CISG issues, such as the possibility of the CISG’s exclusion, the issue of non-conformity of the goods sold, the issue of interest rate, etc. In doing so, Judge Cortesi cites to decisions rendered by many foreign courts, thus conforming to the mandate set forth in Article 7(1) of CISG. For an English translation of the full text of the decision, prepared by Giulia Sambugaro, member of the New York State Bar and graduate of NYU School of Law, where she obtained an LL.M. in International Business Regulation, Litigation and Arbitration in 2011, click here.

Professor Franco Ferrari, Director of the Center for Transnational Litigation and Commercial Law, has just published a paper (co-authored with Dr. Francesca Ragno from Verona University School of Law) in Spanish entitled “Jurisdiction in contract matters under the Brussels I Regulation” in La Notaria, a Spanish peer reviewed law review. The paper analyzes how the provision (Article 5.1) of the Brussels I Regulation dealing with jurisdiction in contract matters is interpreted in the courts of the various countries in which the Regulation came into force.

In an Opinion rendered on 8 September  2011 (for the text of the opinion click here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CC0384:EN:HTML), CJEU Advocate General Trstenjak cited a paper by Franco Ferrari, Professor of law and Director of the Center for Transnational Litigation and Commercial Law at NYU School of Law, when dealing with the  relationship between the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and 1980 Rome Convention on the law applicable to contractual obligations, which the former replaced to some extent. As for said relationship, the Advocate General stated that “[t]he changes [introduced by the Regulation] were intended to modernise certain provisions of the Convention and give them a clearer or more precise wording with a view, ultimately, to enhancing legal certainty but without introducing new elements which would substantially change the existing legal position”. When doing so, it cited to the paper by Professor Ferrari, entitled From Rome to Rome via Brussels: remarks on the law applicable to contractual obligations absent of a choice by the parties, published in  Rabels Zeitschrift für ausländisches und internationales Privatrecht 751 (2009).

Professor Linda Silberman has been elected as a Member of the Advisory Council of the Revista Espanol Derecho International (Spain).  She has also been selected to be an Associate Member of the Centre for Private International Law at the University of Aberdeen (Scotland).

The Supreme Court of Germany cited a paper by Franco Ferrari, professor of law, in a decision concerning the law applicable to liability for medical malpractice in a case involving a lawsuit brought by a German patient against a Swiss doctor. Professor Ferrari, who is also the Director of the Law School’s Center for Transnational Litigation and Commercial Law, is an expert on European conflict of laws.

The Court was faced with deciding whether the law applicable to the lawsuit brought by the German patient against the Swiss doctor was subject to the laws of Germany (where the plaintiff had its place of business) or those of Switzerland (where the defendant had its place of business). The German Supreme Court resorted to its conflict of laws rules, which have since been replaced by the Regulation (EC) No 593/2008 of the European  Parliament and of the Council of 17 June 2008 on the law applicable to contractual (so-called Rome I Regulation), to get to the application of Swiss law as the law that was most closely connected to the contract. In writing its 19 July 2011 opinion (http://lexetius.com/2011,4531), the German Supreme Court relied on a paper by Ferrari asserting that for the purpose of identifying the law applicable to a doctor-patient relationship, one would have to look at the law of the doctor, as the doctor is the party effecting the performance that is characteristic to the doctor-patient relationship and, thus, the party whose law is most closely connected to that kind of contractual relationship.

Linda Silberman, Martin Lipton Professor of Law, testified before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on November 15 as that body wa sconsidering federal legislation on a national standard for recognizing and enforcing foreign judgments in the U.S. She brought the specialized knowledge gleaned from serving as co-reporter, along with Herbert and Rose Rubin Professor of International Law Emeritus Andreas Lowenfeld, of an American Law Institute project that developed a proposal for such a federal statute.

“I think the need for federal legislation is more important now than ever before,” said Silberman, who previously appeared before the subcommittee in February 2009 to discuss the issue of libel tourism. “A comprehensive federal statute will have an impact in two areas. First, it will provide a federal uniform standard for recognition and enforcement of foreign judgments in the United States. And second, it has the potential to enhance recognition and enforcement of U.S. judgments in other countries.”

Pointing to the disparities among individual states’ laws, Silberman said, “Only a federal statue can ultimately achieve the maximum level of uniformity.” She added: “In the absence of uniformity, the judgment creditor in an enforcement proceeding or the judgment debtor in a declaratory judgment proceeding for non-enforcement can forum-shop for a state law favorable to its position.”

Ultimately, Silberman argued, broader issues than even interstate legal confusion were in play: “Questions about the quality and fairness of a foreign judicial system would seem to easily fall within foreign relations concerns of the United States, and so there should be uniform federal criteria…. Recognition and enforcement of foreign judgments, as well as non-recognition and non-enforcement, is and ought to be a matter of national concern. We are in an age of globalization and international commerce, and the relevant standards and criteria should be in the hands of the federal government.”

Silberman is currently part of an advisory group to the State Department helping to prepare federal legislation to implement the Hague Choice of Court Convention, which pertains to choice of court agreements between parties in international civil and commercial cases. She also participated in a November 28 forum organized by the Law School’s Center on Transnational Litigation and Commercial Law, of which she is co-director, as well as in symposia at the University of South Carolina School of Law and Brooklyn Law School earlier in the fall.

Professor Franco Ferrari, Executive Director of the Center for Transnational Litigation and Commercial Law, will give a talk at the New York State Bar Association Global Week, International Section. He will speak on “Drafting International Contracts”. The event will take place on 10-13 May, 2011, at the Yale Club.

Professor Franco Ferrari gave a talk on “CISG and conflict of laws” at a conference held in Vienna on April 14th, 2011. View the full program.