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François-Xavier Licari, Sandrine Brachotte and Nathalie Najjar

Are arbitrators employees for the purpose of the Employment Equality (Religion or Belief) Regulations, 2003? This is an unlikely question to open a debate about the role of religious norms in the global sphere! Yet it arose in the context of an international commercial contract with a religious arbitration clause, triggering controversy not only within the arbitration community (which feared the potential fiscal and other consequences of a legal characterisation of arbitration as employment) but also far beyond. In a world where religious norms are gaining (or regaining) increasing prominence, how exactly do our multiple belief systems fit with global economic governance by contract? The case arises from a joint venture agreement between Mr. Jivraj and Mr. Hashwani, that contained the controversial arbitration clause. It provided that any dispute between the parties should be resolved by arbitration before three arbitrators, all of whom should be ‘respected members of the Ismaili community’ (a religious community comprised of Shia Ismaili Muslims). The parties terminated their joint venture agreement in 1988 (seven years after its inception) and appointed three Ismaili arbitrators to assist them in dividing the joint venture assets. However, as the panel was unable to resolve all the issues between the parties, they remained in dispute for some years. In 2008, Mr. Hashwani initiated another arbitration and appointed Sir Anthony Colman as an arbitrator, despite the fact that he was not a member of the Ismaili community.

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Horatia Muir Watt

When the bankruptcy of Lehman Brothers Holdings, Inc. (LBHI) produced shockwaves throughout the global financial market and calls for regulation of systemic risk, the role of private international law was hardly a central preoccupation with either financial institutions or the general public. It is well known that Lehman’s over-the-counter (OTC) derivatives portfolio (containing over 900,000 OTC derivatives transactions) was governed by the default provisions of the ISDA Master Agreement. On the terrain of private law, the question arose in the aftermath of the crisis as to whether the Master Agreement played any meaningful role in Lehman Brothers’ bankruptcy and its catastrophic outcome and more generally whether a modification of its terms could reduce the systemic risk associated with derivatives transactions. In respect of the transnational dimension of the Agreement, a more theoretical debate concerned the extent to which attempts to create global certainty by the financial industry through the use of standardised agreements could be seen as a present-day renewal of the lex mercatoria. Might privately created norms provide an alternative frame of reference for the governance of contracts concluded in global financial markets? In such a perspective, the interference of divergent local laws was seen to thwart the operation of uniform contractual terms. However, the presence of a conflict of laws in relation to the interpretation of the ISDA Master Agreement also suggests that private international law plays an essential role in constituting the rules of the game against the backdrop of which the Master Agreement is given legal effect.

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Patrick Kinsch, Chris Thomale and Fabien Marchadier

Kiobel is a landmark decision, handed down by the United States Supreme Court in 2013, in the field of jurisdiction for corporate human rights violations. The claims here were brought under the Alien Tort Statute, by Esther Kiobel and other Nigerian nationals, in a putative class action against The Shell Petroleum Development Company of Nigeria and other related entities before the United States District Court for the Southern District of New York. It was alleged that the respondents, while operating oil production facilities in the Ogoniland region of the Niger Delta between 1992, were complicit with the Nigerian government’s human rights abuses. The crimes consisted of murder, torture, unlawful detention, expropriation and exile of the group of petitioners and their relatives. The District Court dismissed the claims. Both parties cross-appealed to the US Court of Appeals for the Second Circuit. The question was whether civil liability could be attached to corporations under the law of nations for the purposes of the Alien Tort Statute, which provides that ‘the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ On 17 September 2010, the Second Circuit found that claims could not be brought against corporations under the Alien Tort Statute. The petitioners asked the Supreme Court to grant a review of the Second Circuit’s decision. Oral arguments were held on 28 February 2012.

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Elsa Supiot and Michael Wells-Greco

The Blood case concerns access to health care and health services, in relation to assisted reproductive technology. It raises ethical and legal questions around the right to bodily integrity, the right to family life and the right to health within the framework of the European Union. Mrs. Diane Blood married her husband, Stephen, in 1991, according to the rites of the Anglican Church. In 1994, Mrs. Blood and her husband commenced plans to start a family. Soon after, Mr. Blood contracted meningitis. In March 1995, while her husband was in a comatose state, Mrs. Blood asked the doctors to take samples of Mr. Blood’s sperm. After his death, Mrs. Blood commenced a legal battle to use these samples, entrusted in the care of the Infertility Research Trust (IRT), so as to bear her late husband’s child. The Human Fertilisation and Embryology Act 1990 prohibited the storage or use of gametes without the clear written consent of the gamete provider. In the case at hand, Mr. Blood had never signed this document. As a result, the authorities (HFEA) could not allow Mrs. Blood to undergo assisted reproductive treatment in the United Kingdom. The question, therefore, was whether the HFEA would authorise the release of the sperm abroad for treatment in another EU country. Mrs. Blood requested that the sperm be exported to Belgium, where she could obtain treatment under Belgian law. Nevertheless, the authorization was not granted. In response, Mrs. Blood filed an application for judicial review.

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Sara Dezalay and Simon Archer

The Trafigura case concerns corporate liability related to environmental damage in a transnational setting, which raises questions of ethical responsibility of multinationals. The main lawsuits took place in Ivory Coast, in the United Kingdom and in the Netherlands. In late 2005, a multinational trading company called Trafigura decided to buy large amounts of an unrefined gasoline in order to use it as a blendstock for fuels. The process of refining this product is known as caustic washing and it was carried out on a ship named Probo Koala. The company knew beforehand that the resulting chemical waste would be difficult to treat or dispose of. On 19 August 2006, Probo Koala unloaded the waste shipment at open-air sites at Abidjan, Ivory Coast. Soon afterwards, according to the allegations in this case, the people living near the discharge sites began to suffer from a range of illnesses. Subsequently, at least 100,000 sought medical attention for conditions which were attributed to the presence of toxic waste and a considerable number of people died. In November 2006, the High Court of Justice in London agreed to hear an action by some 30,000 claimants from the Ivory Coast against Trafigura. Trafigura denied responsibility, claiming that the substances were standard waste from onboard operations of ships that were entrusted to an Ivorian disposal company.

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Hans van Loon and David Sindres

The Wagner case stemmed from the non-recognition by Luxembourg of the adoption, in Peru, of a Peruvian child by a Luxembourg national. In November 1996, the Family Court of the province of Huamanga had pronounced the adoption in accordance with the legal conditions for full adoption in Peru, so that the child lost her family ties with her original family and acquired the status of daughter of the adopting parent, Ms. Wagner. Once in Luxembourg, Ms. Wagner, relying on the pre-existent judicial practice, expected the foreign adoption to be registered. However, that practice had been abolished and Ms. Wagner had to make an application before the District Court in order to obtain the enforcement (exequatur) of the foreign judgment. The enforcement would allow the child to acquire Luxembourgish nationality, and thereby European Union citizenship, and be granted definitive permission to remain in the country. In 1998, the Court dismissed the application for enforcement, based on the Luxembourg rules on the conflict of laws, which provide that the conditions for adoption are governed by the national law of the adoptive parent. According to Luxembourg’s Civil Code, an application for full adoption could only be made by a married couple. Ms. Wagner contested that the Court was dealing with an application for enforcement and not an application to adopt; and that the real issue consisted in the rights of the child adopted following the Peruvian judgment.

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Katja Langenbucher and Toni Marzal

European financial markets operate as a highly integrated regime that promotes transparency and tackles systemic financial risk. It is no surprise that insider trading and market manipulation are heavily regulated. And one of the key instruments that have been used to combat market abuse – the Market Abuse Directive 2003/124 – was the focus of this 2015 Court of Justice of the European Union (CJEU) case. In Lafonta v. Autorité des marchés financiers, the CJEU interpreted the meaning of ‘precise information’ in the context of inside information under the 2003 Directive, which was applicable at that time. Inside information referred to any undisclosed information relating to financial instruments, which could have a significant effect on the prices of those instruments if it were made public. The Implementing Directive further specified that information was to be considered precise if it allowed an investor to draw conclusions on the price movement of an investment. It was, however, unclear whether one was also required to predict a particular direction of the price movement – up or down – to meet this part of the test. Mr. Lafonta was a chairman in a company called Wendel that concluded a swap agreement with a number of credit institutions in September 2007. The underlying assets of the swaps were shares in Saint-Gobain. Wendel acquired more than 66 million shares in Saint-Gobain, which represented 17.6% of its share capital. Wendel informed the AMF, the French market regulator, that it exceeded the thresholds of 5%, 10%, 15% and 20% of the company’s share capital.

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Darren Rosenblum, Calixto Salomão Filho and Vitor Henrique Pinto Ido

Samsung controls a large part of the world market in electronics and related goods. In this respect, it provides a fascinating example of economy-wide specialisation in global value chains. The comments below look at the legal and institutional infrastructure that supports this situation of economic quasi-monopoly. One focuses on the power derived from intellectual property and looks at the anatomy of the recent high-profile smart phone dispute in the US Supreme Court. The other explores the makings of the corruption, bribery and political scandal that has dogged the footsteps of the chaebol electronics conglomerate as it takes off as a world player. It provides a perfect opportunity to compare the structural, political and cultural conditions in which similar phenomena affect emerging varieties and forms of monopolistic capitalism across the globe. In a high-profile patents case in US federal court, a jury found that various smartphones manufactured by Samsung infringed design patents owned by Apple Inc. These covered a ‘rectangular front face with rounded edges and a grid of colorful icons on a black screen’. Apple was awarded $399 million in damages – Samsung’s entire profit from the sale of its infringing smartphones. Under Section 289 of the Patent Act, a person who manufactures or sells ‘any article of manufacture to which [a patented] design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit’ (35 U.S.C. §289).

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Catalina Avasilencei and Gilles Cuniberti

This judgment handed down by the English High Court concerned the validity of nine derivative transactions, in the first affair ever having been litigated under the rules of the 2015 Financial List. Significantly from the point of view of private international law, the debate turned on what makes a contract international, as opposed to domestic, under Article 3(3) of the Rome Convention 1980 (now Regulation Rome I). According to this provision, Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement. In this case, both the claimant Banco Santander Totta and the defendants, Companhia de Carris de Ferro de Lisboa SA, Sociedade Transportes Coletivos do Porto SA, Metropolitano de Lisboa and Metro do Porto SA, were from Portugal. The defendants were public sector transport companies running the metro, bus and tram in Lisbon and Porto. They engaged in a number of long-interest rate swaps with Banco Santander between 2005 and 2007. These swaps took place under ISDA Master Agreements, subject to English law and their national jurisdiction. The swaps were very risky given their long life-span and the volatility of interest rates.

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Jeremy Heymann and Régis Bismuth

One of the challenges European law has had to face in recent years involves the harmonisation of company law. Practised by a significant number of Member States, the ‘real seat theory’ prevented the growth of an internal market for corporate charters analogous to the one which thrives (albeit under the dominance of Delaware) in the United States. According to this theory, company executives do not have the liberty to freely choose a charter – laws governing the constitution and internal management of the corporate entity – other than that of the place of its seat (defined as the centre of corporate decision-making, at least as far as it appears as such to third parties). In practice, this meant that a company with a seat in France cannot choose to incorporate in Germany. Doing so would be seen as invalid in both countries; either for noncompliance to French formal and substantive requirements for incorporation, or for not having its corporate seat in Germany. By contrast, when a country practises the ‘theory of incorporation’, companies are free to create their own rules, or corporate charter, regardless of the place of its seat. Under this system, companies are much more mobile: they may transfer their headquarters from one place to any other practising the same criterion (it takes two to tango!), without having to re-incorporate under that country’s laws. Certain Member States applied the ‘theory of incorporation’ as opposed to the ‘real seat theory.