This article considers the problem of ‘libel tourism’ (forum shopping in transnational libel cases) from the point of view of English and EU law (both relevant in certain situations). If proceedings are brought in a forum having no real connection with the case, and if the lex fori is applied, free speech in other countries could be undermined. This is particularly a problem where the case is brought in England, because of the pro-claimant slant of English libel law. The article notes when English conflicts law is applicable and when EU conflicts law is applicable, and explains the English and EU law regarding choice of law, jurisdiction and forum non conveniens in order to assess whether there is a genuine problem. It concludes that there is, particularly with regard to the Internet. Possible solutions are suggested.

Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.

The judgment of the European Court of Justice in Cartesio was eagerly awaited as a clarification of the questions concerning the scope of the right of establishment (articles 49, 54 Treaty on the Functioning of the European Union (TFEU), (ex-articles 43, 48 EC) that remained after previous landmark decisions such as Centros, Überseering, and Inspire Art. This article analyses the implications of Cartesio in light of different scenarios of transfer of the registered and the real seat within the European Union. It assesses the interrelations of right of establishment and private international law rules for the determination of the law applicable to companies and concludes that the case law of the European Court of Justice after Cartesio, rather than providing for a coherent system of European company law, leads to arbitrary distinctions and significantly impedes the free movement of companies.

International fisheries law is no longer driven by the clash of interests between coastal and distant-water fishing States, but is increasingly about how States in existing international fisheries, mostly with some degree of responsibility for their depletion, are striving to exclude newcomers. The residual freedom of fishing on the high seas is an obstacle to regulation by international commissions since States outside are not bound by treaties to which they are not party—which in turn creates a disincentive for States inside to accept the necessary restraints. Rules to limit entry to international fisheries are therefore now needed, and articles 8 and 17 of the UN Fish Stocks Agreement come close to this, but their transformation into custom (or that of regulations adopted by fisheries commissions into objective regimes) so as to bind non-parties is being stunted by commissions' self-serving views on what cooperation with them by new entrants to the fisheries entails for the latter. The result is that the modern arguments for exclusion of newcomers bear an uncomfortable resemblance to the discredited 1950s abstention doctrine. This article suggests why those arguments are now meeting little resistance, despite being advanced by States collectively unwilling even to restore depleted stocks to the biomass corresponding to their maximum sustainable yield, as the doctrine would have required (and the current law also does).

Melding the power of the state with the power of capitalism, state-owned and state-controlled enterprises continue to control the commanding heights of the Chinese economy even though market-oriented reforms have led to a rapid expansion of the private sector in China. This article reflects on how China's practice of state capitalism challenges the world trading system and how WTO law, as interpreted by WTO Panels and the WTO Appellate Body (AB), addresses these challenges. The article concludes that the WTO Agreement on Subsides and Countervailing Measures (SCM Agreement) has been interpreted in such a manner that many key features of China's state capitalism could easily be challenged by its trading partners in a WTO-consistent manner. This finding has profound implications for China's domestic economic reforms, especially China's ongoing reforms of its state-owned enterprises and commercial banks.

This article investigates what effects a recognized foreign judgment in civil and commercial matters has in English proceedings. Does the judgment have the effects that it has in the foreign country (extension of effects) or the effects that a comparable English judgment would have (equalization of effects), or a combination of these? After a review of the current law, it will be discussed what approach is preferable on principle. The suggested approach will then be illustrated by considering whether a foreign decision on one legal basis of a certain claim ought to preclude English proceedings involving another legal basis of the same claim. Finally, it will be discussed whether and how the effects of a recognized foreign judgment in England are affected by interests of a third country.

On 1 July 2011 the UK Bribery Act 2010 and accompanying guidance finally came into force, marking the end of years of controversy about how and when the United Kingdom would implement the OECD Anti-Bribery Convention. The United Kingdom's very delayed implementation of the Convention provoked an increasingly threatening response from the OECD Working Group on Bribery, and highlighted this body's lack of binding enforcement procedures. By contrast, the OECD's reliance on non-binding guidelines has proved successful in that the UK Guidance draws heavily upon the OECD's guidance on how corporations should prevent the bribery of foreign public officials.

The seat of arbitration is fundamental to defining the legal framework for international arbitral proceedings. Although parties are able to select the arbitral seat, arbitration clauses are frequently ‘pathological’, failing to designate the seat or failing to do so clearly. If the seat is not clearly identified by the parties’ agreement, the court may be called upon to decide which country is the seat (typically, in order to determine whether or not it has jurisdiction to entertain certain types of arbitration application). The simplest situations are ‘uni-directional’ cases in which, in procedural terms, the parties' agreement points expressly or impliedly towards a single location. More difficult are ‘pluri-directional’ cases in which the agreement refers to more than one possible location. While certain scenarios are relatively straightforward, what constitutes a choice by the parties is more complicated if the parties' agreement contains signposts pointing in different directions. In ‘uni-directional’ cases, the English courts have developed a series of interpretative guidelines which solve most of the problems posed by potentially ambiguous clauses. However, in ‘pluri-directional’ situations, the English case law is less convincing. In such cases, the courts have not approached the identification of the arbitral seat in a consistent way; they have not laid down a clear doctrinal framework; and they may be legitimately criticized for displaying a measure of ‘forum preference’.

The legal framework pertaining to the use of private armed guards protecting merchant ships from Somalia-based piracy is complex, sometimes ambiguous, and currently in a state of flux. Against the background that commercial shipping increasingly relies on Private Maritime Security Companies and that various regulatory projects on the subject matter are underway, this article sketches out what domestic and international rules govern the use of force and firearms by private armed guards on board merchant ships today. It concludes that at this juncture an effort to coordinate this legal framework is necessary, both regarding the interpretation of existing rules and the creation of new norms.

English private international law generally gives a potential role, where appropriate, to foreign law, by allowing for the application of choice of law rules to determine its relevance. Yet in the context of anti-suit injunctions granted otherwise than in aid of a contractual right not to be sued, choice of law is conspicuously absent. In those cases, courts simply apply the lex fori without paying any regard to foreign law, although the notion of comity is taken into account in the final decision on whether to grant anti-suit relief. Clearer identification of the grounds for granting such relief should limit application of the lex fori to instances where the anti-suit injunction serves as a form of ancillary relief to protect the judicial processes of the forum, and in which comity plays no role. In all other cases, which ultimately concern private justice between the parties, comity is best understood as an expression of justice in cases involving foreign elements, and better reflected through choice of law rules, which might lead to the application of foreign law. This approach is preferable to invoking comity as a consideration relating to the manner in which the court regulates the grant of anti-suit relief, because courts tend to bestow rights, which parties may not otherwise have, under the cloak of comity. Understanding comity as the catalyst for taking account of foreign law assuages concerns about interfering with foreign courts, acts as a deterrent to remedy shopping, and provides greater certainty as regards the vindication of rights. The case for widening the application of choice of law in this context does not depend on Rome II, but if the principle is accepted, courts must follow the process which it specifies.

The principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straightforward, the application of the different legal elements which constitute a non-discrimination obligation has proven to be most challenging. Adjudicating bodies have been applying different interpretations and standards with regard to the legal elements of ‘less favourable treatment’, ‘likeness’ and ‘regulatory purpose’, which leads to a high fragmentation of the non-discrimination principle in international economic law. This article maps out the different theories for each of these elements on the examples of WTO law, NAFTA, bilateral investment treaties (BIT) and EU law and analyses how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of non-discrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of factors which are weighed and balanced by the adjudicating bodies.

This article deals with the avoidance of contracts for non-performance under the United Nations Convention on the International Sale of Goods 1980, which has been adopted by more than 70 States, though not yet by the United Kingdom. It critically analyzes the text of the Convention, and measures the contributions of national courts for fidelity to the text of the Convention and compatibility with the purposes served by that text.

This article examines the application of the principle of justiciability principally where it has been invoked in the context of claims in the UK courts related to foreign affairs or public international law. It is submitted that the modern judicial trend is to find that issues are justiciable and focus instead on the degree and intensity of the review exercised. The trend is directed and supported by the growing importance of human rights and the rule of law.