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In international arbitration, arbitrators must often navigate a complex maze of norms from different legal systems. The arbitrators’ decision on which of these legal norms apply to the merits of the proceedings can have far-reaching consequences.
Private international law is often considered and antiquated and formalistic methodology, not particularly relevant for international commercial arbitration. Actually, private international law – in all three its components: conflicts of jurisdiction, conflict of laws and recognition and enforcement of decisions – is crucial to international arbitration. Almost all issues that arise in connection with an international arbitration raise the question of the law under which they are to be solved and, very often, of jurisdiction. This contribution explores the different situations that raise issues of private international law in the context of international arbitration and identifies the most commonly adopted solutions. It also explains that, particularly as regards the applicable law, the rules of private international law applicable before domestic courts are not suitable when conflict of laws issues arise before arbitral tribunals. More generally, the point is made that in many situations the conflict of laws method does not yield satisfactory solutions because, either the relevant conflict rules are not clear, or they designate a national law that often will not contain a specific solution for arbitration. In any case, the conflict of laws method may lead to uncertainty and to a fragmentation of the answers to important arbitration law problems, which is at odds with arbitration’s aspiration to be an international dispute settlement mechanism with a predictable, uniform and non-parochial solutions.
Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.
This paper proposes a historical contextual pedagogy for private international, which helps students reflect on the impact of the field's legal techniques in different historical contexts. To emphasise the richness of a historical lens, the paper reflects on the development and use of private international law tort rules in a colonial, intellectual and gender historical context. By taking Phillips v. Eyre as a reference, the goal is to illustrate how the canonical cases in private international law can serve as entry points towards a broader historical contextualisation of private international law, beyond the doctrine, though inspired by it.
In this chapter, the law scholar Jan von Hein analyses and evaluates the European Parliament’s proposal on a civil liability regime for artificial intelligence against the background of the already existing European regulatory framework on private international law, in particular the Rome I and II Regulations. The draft regulation (DR) proposed by the European Parliament is noteworthy from a private international law perspective because it introduces new conflicts rules for AI. In this regard, the proposed regulation distinguishes between a rule delineating the spatial scope of its autonomous rules on strict liability for high-risk AI systems (Article 2 DR) on the one hand, and a rule on the law applicable to fault-based liability for low-risk systems (Article 9 DR) on the other hand. The latter rule refers to the domestic laws of the Member State in which the harm or damage occurred. In sum, compared with Rome II, the conflicts approach of the draft regulation would be a regrettable step backwards in many ways.
Emerging and developing states are home to powerful corporations capable of deploying economic activities on a global scale through the rapid pace of technological change and globalisation. But such corporations have to date been largely overlooked in the field of business and human rights. Treatment of such corporations has typically been in the context of supply chain studies, as subsidiaries of corporations from economically developed Western states. This book takes a radically different approach. It aims to investigate the conditions under which the European Union and its Member States regulate and remedy human rights violations by corporations from emerging and developing states. Stemming from the hypothesis that the EU intends to play a central role, Aleydis Nissen explores how the EU and its Member States attempt to ensure that EU-based businesses are not undercut by emerging competition, drawing on global examples to illustrate this developing phenomenon.
This book provides the first detailed analysis of recognition and enforcement of foreign judgments and awards in civil and commercial matters from a transnational perspective. This perspective facilitates greater understanding of the present state of recognition and enforcement and offers insight into the establishment and operation of key modern instruments. This book represents a timely contribution, as instruments harmonising and promoting recognition and enforcement are increasingly being considered and implemented internationally. Many countries have recently reiterated their commitment to improving access to justice and have indicated an intention to sign one or both of the treaties designed to harmonise and promote recognition and enforcement of civil and commercial judgments internationally: the 2005 Choice of Court Convention or the 2019 Judgments Convention. This book is an essential resource for policymakers, scholars, and intergovernmental organisations to understand the nature and origin of recognition and enforcement approaches, as well as their application, interpretation, and future directions.
This chapter examines the extent to which the current jurisdictional preconditions for freezing injunctions are consistent with any theories underpinning the rules of jurisdiction in private international law. As a starting point, it identifies different perspectives on the purpose of private international law and the purpose of jurisdictional rules. The chapter engages in a detailed discussion of the use of the term jurisdiction and its different interpretations in an attempt to eliminate the confusion surrounding the application of private international rules in the context of freezing injunctions. It explores the difference between personal jurisdiction and subject-matter jurisdiction and their respective relevance in extraterritorial freezing injunction cases. The core of the chapter is the emphasis on the link between public international and private international law, drawing upon Mills’ international systemic perspective. The potential significance of the doctrine of comity is taken into consideration.
The extent of available pre-judgment asset preservation relief is widely regarded as a unique characteristic of English law and one of the key factors attracting international commercial litigation to the English courts. By taking a novel view of the theoretical foundations of a freezing injunction, this book challenges the long-established view that such an injunction is an in personam form of relief whose sole purpose is to prevent unscrupulous defendants from making themselves judgment-proof. Dr Šaranović combines historical and comparative perspectives to identify several theoretical flaws in the court's jurisdiction to grant this popular form of interim relief. The book demonstrates that the current application of private international law rules in this field leads to inequality among litigants and illegitimate encroachment upon the sovereignty of foreign states. It proposes a range of possible solutions to alleviate concerns about the scope of freezing injunctions both in the domestic and international arena.
The jurisdiction of arbitral tribunals to entertain sovereign bond disputes, which is primarily governed by the definition of investment as provided in applicable investment treaties, is the first stage at which such an appropriate balance is to be explored. This study has found that both the inclusion and exclusion of sovereign bonds as a protected investment reflect the policy decisions of contracting parties, and the ‘negotiated restructuring’ exception may embody a possible balance between bondholder protection and respect for negotiated debt restructuring. In the absence of an explicit reference to sovereign bond instruments, interpretative yardsticks, such as contribution, risk and territoriality as identified either in investment treaties or in the ICSID Convention may afford a balanced consideration taking into account of both the modern development of financial markets and policy decisions regarding the extent to which treaty protection should be provided.
Mediation is neither novel nor new. However, traditional forms of mediation are different from modern mediation practice; in traditional forms, the role and social standing of the mediator are central to the process, and the outcome focuses more on social harmony than on the individual rights or interests of the parties. This difference has given rise to two broad mediation cultures. Cultural differences can be reflected in different approaches to meeting needs, and can shape the interests of the parties and party behaviour during the process. As an informal and adaptable process, mediation offers the possibility of greater sensitivity to cultural differences. A consequence of globalisation has been the increasing harmonisation of laws and practices, and the harmonisation of dispute resolution systems is an important part of this movement. This is reflected in the emergence of several regional and international instruments, the most recent of which is the Singapore Convention. What matters is the potential for any new regional or international legal instrument to be effective and have a positive impact on the people and corporations involved in cross-border legal relationships.
FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom's highest appellate court's most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority's decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court's pronouncements on the other question before it concerning proof of foreign law.
The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.
The chapter reviews some core points on the impact on the competition for dispute resolution in Europe raised by the withdrawal of the United Kingdom from the European Union. UK courts have been important providers of national case law on European private international law, and little is expected to change in practice in the immediate post-Brexit period. Moreover, litigants will continue resorting to UK courts that will thus remain strong competitors to international commercial courts all over the world. Still, courts in Europe are likely to discontinue their automatic recognition and enforcement of UK judgments. Such development would give ICommCs on the continent and elsewhere an opportunity to take litigation away from the UK – under one important condition: ICommCs within the EU will need to ensure an appropriate integration within the national judiciary.
The constant exchange of investment assets poses a risk of ‘commoditisation’ of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State ‘insiders’ and third State ‘intruders’ to create artificial access to arbitration. First, the definition of ‘investment’ can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between ‘investor’ and ‘investment’ strongly implies that ‘active contribution’ in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).
This chapter proposes that a carefully crafted private international law-based framework allocates regulatory authority between the national and institutional orders so as to allow maintaining institutional independence without sacrificing access to justice. It is argued that the ideal approach to implement the proposed regime is through an international arrangement. Of course, international agreements can take time to negotiate. Given that private international law rules can be adjusted nationally without the need for action on the international plain, the proposed framework can be implemented even in the absence of immediate international action. It is submitted that private international law techniques can help bring to an end the denial of justice age for the victims of IO conduct. A conundrum that public international law has not been able to address for decades can readily be resolve using private international law.
This chapter explains and maps the WA’s and the Protocol’s perhaps surprising silence on private international law, or the conflict of laws: the rules that govern international private law litigation. There is an explanation for the failure to provide for any matters in respect of choice of law: the UK can, and has been able to, adopt a quick fix in domestic law, with no need for EU involvement or reciprocity, that maintains the status quo ante. Jurisdiction and recognition and enforcement of judgments, however, do not admit of any easy or comprehensive answers. It appears that the UK’s best chance of minimizing disruption in this area has now been taken off the table by the EU, leaving uncertainty about the future.
The interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.
This chapter explores the concept of ‘entangled legalities’ in the context of pre-modern and (post-)modern localised legal orders: regional, imperial, national, international, transnational and postnational. The first section explores the juridification of the international legal sphere; it contrasts private international law approaches with postnational law approaches, exploring the ways in which the recent postnational shift from hierarchical to heterarchical governance structures in fact leads us back to fundamental questions first posed by (Classical) Roman law. The second section focuses on the striking predominance of ‘strong’ legal norms in current analyses of transnational and postnational legal entanglements. The third section, in contrast, argues for a shift in scholarly emphasis away from ‘strong’ legal norms towards a more explicit focus on the importance of strategic legal argumentation in the constructing localised legalities, via a case study of the multiple juris(dictional)-generative practices revealed in the record of a specific, sixth-century, Roman (Byzantine) dispute settlement: P. Petra IV.39.