Aug 26

EUROPEAN AND INTERNATIONAL UNIFORM LAW – HOW TO ACHIEVE A UNIFORM LEGAL PRACTICE OF THE RULES OF UNIFORM LAW

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CONFERENCE FLORENCE 26/27 OCTOBER 2007
The conference was organised by The European Legal Forum (IPR Verlag) and the AEA – Associatión Européenne d’Avocats – in cooperation with the Suisse Institute of Comparative Law and the Dutch ASSER Instituut. It took place in the European University Institute in Florence on the 26th and 27th October 2007.

The conference was dedicated to the development of uniform law, in the context of the European unification and in general at international level. In many fields of the law the development of uniform law has reached a point where a uniform legal order comes into sight. As a consequence, having regard to the practice of the uniform legal rules in the environment of the often highly diverging structures of the national jurisdictions the question arises: How uniform is the practice of uniform law?

THE CONFERENCE ADDRESSED THE SUBJECT OF THE DEVELOPMENT AND OF THE PRACTICE OF UNIFORM LAW UNDER FOUR DIFFERENT ASPECTS:
The first part of the conference was dedicated to a survey on the development of uniform law in different areas of the law. Dr. Mathias Lehmann, University of Bayreuth, informed on the development of uniform law in the field of civil and commercial law. Thereafter, Prof. Annette Kur, University of Stockholm and Max-Planck-Institute of intellectual property, competition and tax law in Munich, gave an overview on the highly progressive status of uniform law in the field of intellectual property law, followed by Dr. Andrea Schulz, researcher at The Hague Conference of private international law and today officer at the German federal office of justice, who discussed the development in the field of family and child law. Each of the three presentations addressed the relations between the international uniform law rules and the evolving European uniform legal order. The latter was the focus of the presentation by Prof. Ansgar Staudinger, University of Bielefeld, who lectured on “From international conventions to the Amsterdam Treaty and beyond: What has changed in judicial cooperation in civil mat-ters?” He discussed the development in EC law where since the Amsterdam Treaty the EU is acting, for an entire area of the law, as a legislator of uniform legal rules which apply indistinctively in all legal systems of the Member States. Nevertheless, he showed that due to the various forms of opting-out which have survived, the European system of judicial cooperation in civil matters is still only partly functional.

The second part of the conference raised the question of “How uniform is uniform law?” in regard to the fact that uniform legal rules typically develop in the environment of a multitude of legal systems and the different rules and conditions therein. Dr. Thomas Simons, President of the AEA and managing director of IPR Verlag, discussed problems of forum shopping, which he explained was a phenomenon typical of uniform law and a sensitive indicator of where the uniform legal order is yet only insufficiently developed, thus giving way to situations in which the addressing of one legal order rather than another may offer parties attractive choices for forum shopping. Prof. Jonathan Harris, University of Birmingham, discussed the particular difficulties and sometimes misunderstandings which may arise where the English common law system meets with European uniform legal rules which are not rarely inspired by concepts and views of continental law. Prof. Peter Hay, Emory Law School (USA) and University of Dresden, discussed the role of the public policy rule in European law of civil procedure as an “ultimate defence barrier” of the national legal systems against the intrusion of foreign legal concepts via the instruments of uniform law.

Dr. Thomas Simons,

President of the AEA
and
managing director of IPR Verlag

The afternoon of the first conference day was dedicated to legal aspects of information and information transfer in the field of uniform law. Prof. Rainer Hausmann, University of Konstanz, gave an in-depth comparative analysis of the rules under which foreign law is considered in civil proceedings, whether they are considered as facts or as equivalent to the national legal rules of the forum state, and on the solutions offered for the sometimes complicated issues which can arise therefrom. Dr. Daniela Tiscornia, Florence Institute of legal informatics, took a different approach, when lecturing on how information technique may assist the overcoming of the traditional barriers of language and material access to foreign legal information. Her presentation was followed by Eva Lein, researcher at the Institut Suisse de Droit Comparé, who informed on the ongoing work of the institute. Thereafter the editorial team of The European Legal Forum presented the unalex project (www.unalex.eu), which is being developed as a system of uniform legal information functional to enhance the distribution of multilingual information in the field of uniform law.

The second conference day was dedicated to the role of the judiciary in the field of European uniform law and to the discussion of “Ways to achieve conformity of European jurisprudence”. Prof. Peter Schlosser, University of Munich, addressed the conference with an in-depth analysis of the methods of applying uniform legal rules as used in the context of the different national legal systems. His presentation was followed by a panel discussion of European Supreme Court judges who disputed the question: How uniform is the European jurisprudence in the field of uniform law? Prof. Günther Hirsch, President of the German federal court, Francoise Pascal, 1ére chambre civil of the French Cour de cassation, and Lord Thomas Bingham, English House of Lords, unanimously agreed on the need for an increased and systematic knowledge and an opinion exchange between European Supreme Courts when called to apply the rules of European law. Finally, Prof. Carl Baudenbacher, President of the EFTA court, gave an overview over the role of the jurisprudence of the EFTA court alongside the ECJ in the pursuit of European uniformity.

The audience consisting of around 100 participants, among whom many judges from European supreme courts and many academic researchers from most European States, followed the conference with much interest in discussions at a level which was as high as that of the presentations. The European University Institute, expertly represented by Prof. Hans Micklitz, provided an outstanding background for a conference of high interest, which has opened a dimension in the discussion of uniform law where many different perspectives still remain to be discovered. The team of The European Legal Forum, at the end of their presentation of the unalex project, conveyed what can be taken as a motto not just for the development of an international system of uniform law information, but as a mission statement for the research and for the legal practice in the fields of uniform law: “There is a challenge to be met and much work to be done. The results will be worth the efforts.”