Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law's light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue that some well-placed questions can elicit from all of us a commitment to this law. And this commitment is a reason to believe that the moral impact theory is correct.

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.

This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

The recent COVID-19 outbreak has pushed the tension of protecting personal data in a transnational context to an apex. Using a real case where the personal data of an international traveler was illegally released by Chinese media, this Article identifies three trends that have emerged at each stage of conflict-of-laws analysis for lex causae: (1) The EU, the US, and China characterize the right to personal data differently; (2) the spread-out unilateral applicable law approach comes from the fact that all three jurisdictions either consider the law for personal data protection as a mandatory law or adopt connecting factors leading to the law of the forum; and (3) the EU and China strongly advocate deAmericanization of substantive data protection laws. The trends and their dynamics provide valuable implications for developing the choice of laws for transnational personal data. First, this finding informs parties that jurisdiction is a predominant issue in data breach cases because courts and regulators would apply the law of the forum. Second, currently, there is no international treaty or model law on choice-of-law issues for transnational personal data. International harmonization efforts will be a long and difficult journey considering how the trends demonstrate not only the states’ irreconcilable interests but also how states may consider these interests as their fundamental values that they do not want to trade off. Therefore, for states and international organizations, a feasible priority is to achieve regional coordination or interoperation among states with similar values on personal data protection.

There has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract's governing law. This article revisits the so-called “Ralli Bros rule” and looks at how the scope of the rule has been developed and its nature misunderstood. It argues that the rule is neither a choice of law rule nor part of the rules discharging a contract for frustration but is instead a public policy rule favouring judicial abstention for reasons of comity. This has implications for how the rule interacts with the choice of law rules for contracts under the Rome Convention and the Rome I Regulation.

This article examines how the jurisdictional rules of the recast of the Brussels I Regulation, namely the rules of exclusive jurisdiction for immovable property and company law and governance matters and the rules of special jurisdiction for contracts and torts, deal with unjust enrichment claims and issues concerning unjust enrichment. It also asks whether a new special jurisdiction rule for unjust enrichment should be added to the Regulation.

In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google's search engines—whether accessed from google.ca, google.com, or any other entry point. Google objected. The Canadian Supreme Court, along with the two lower Canadian courts that considered the issue, sided with Equustek (para. 54). The ruling sets up a potential showdown between Canadian and U.S. law and raises critically important questions about the appropriate geographic and substantive scope of takedown orders, the future of free speech online, and the role of intermediaries such as Google in preventing economic and other harms.

Article 7(2) of the Brussels Regulation, 2012 confers jurisdiction, in matters relating to tort, on the courts of the Member State in which the harmful event occurred. In Bier v Mines de Potasse d'Alsace, the CJEU held that this covers both the place where the event which caused the damage takes place and the place where the damage itself takes place. In later cases, however, it held that does not cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by the victim in another Member State. A problem arises if there is no physical harm but only financial loss or some other kind of non-physical harm. It is not always clear in such a situation where the damage occurs. This article considers this problem with special reference to pure financial loss but also two other torts in which no physical harm occurs: defamation and intellectual-property infringement.

Overriding mandatory laws present one of the most pervasive and delicate problems of international arbitration because they affect party autonomy in both its substantive and procedural dimensions. The tension between these concepts both in theory and in practice is a classic emanation of the public–private divide, which is particularly problematic in international and transnational settings. This tension is even stronger in the context of economic integration and regulation, such as in the EU Internal Market. This article revisits and conceptualizes the operation of overriding mandatory laws in the context of arbitration from the perspectives of conflict of laws, public law, and EU law. Drawing on the principles of effectiveness and proportionality, it proposes a practical rather than a theoretical solution to the dialectical relationship between private and public interests in legal certainty.