Showing papers in "Journal of Private International Law in 2017"
TL;DR: In the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be...
Abstract: Over the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be ...
24 citations
TL;DR: In this article, the authors analyse the implications of some recent developments relating to reciprocity on the practice of the recognition and enforcement of foreign judgments, and argue that reciprocity has become a toothless principle that should not pose serious concern.
Abstract: This article’s main purpose is to analyse the implications of some recent developments relating to reciprocity on the practice of the recognition and enforcement of foreign judgments. It shows that reciprocity has become a toothless principle that should not pose serious concern. It also argues that even if it is not abolished entirely, reciprocity no longer plays a significant role in the field of the recognition and enforcement of foreign judgments, and therefore, should not be an issue of concern for jurisdictions that accept the principle of recognition. This is because, the test for establishing reciprocity has now become so relaxed that the requirement will normally be met if it is shown that the courts of the rendering State are likely to recognize the enforcing State’s judgments. In other words, reciprocity can prove to be a serious hurdle only when it comes to the recognition of judgments rendered in a State that manifestly adheres to an unduly restrictive recognition regime such as regimes where...
11 citations
TL;DR: In this article, the authors defend a nuanced position, referring to the true meaning of "establishment" in the internal market, the policy of "safe" regulatory competition and the equivalence of the Member States’ conflict of laws rules.
Abstract: Cross-border corporate mobility in the internal market has developed in particular through the interpretation by the Court of Justice of the European Union of the Treaty provisions on freedom of establishment. Certain issues at the crossroads of conflict of laws and European Union (EU) law are still the subject of debate. One of these is whether freedom of establishment includes a right to solely transfer a company’s registered office between Member States. As such transformation results in a change of the company’s lex societatis, it is intrinsically linked to the debate on regulatory competition in the EU internal market, freedom of choice and the proper balancing of the public and private interests involved. The author defends a nuanced position, referring to the true meaning of “establishment” in the internal market, the policy of “safe” regulatory competition and the equivalence of the Member States’ conflict of laws rules.
11 citations
TL;DR: In this article, the authors discuss the key ethical challenges connected with surrogacy and show how, in private international law, the public policy exception works as a vehicle to shield national prohibitive policies against international system shopping and how it continues to do so precisely in the best interest of the child.
Abstract: Mother surrogacy in and of itself, as a procreative technique, poses a series of social, ethical and legal problems, which have been receiving widespread attention. Less prominent but equally important is the implementation of national surrogacy policies in private international law. The article isolates the key ethical challenges connected with surrogacy. It then moves on to show how, in private international law, the public policy exception works as a vehicle to shield national prohibitive policies against international system shopping and how it continues to do so precisely in the best interest of the child. Rather than recognizing foreign surrogacy arrangements, national legislators with intellectual support by an EU model law, should focus on adoption reform in order to re-channel intended parents’ demand for children.
7 citations
TL;DR: In this article, the authors compare the two instruments in respect to their most important policy decisions: the definition of the internationality of the case as a prerequisite of the applicability of the respective instrument, the understanding of the choice-of-law rule on the nullity of an agreement, the scope and mode of a public policy control of the...
Abstract: Choice of court agreements are widely used. Harmonized private international laws have entered into force recently, namely the Hague Convention of 30 June 2005 on Choice of Court Agreements on 1 October 2015 and the Brussels Ia Regulation on 10 January 2015. Both instruments are formally independent but in the legislative process the drafters of the Convention took notice of the Brussels I Regulation, and the EU legislator took notice of the Convention while working on the Recast of the Brussels I Regulation in order to “strengthen” choice of forum agreements and to bring about “coherence” of the Brussels regime with the Hague Convention. Against this background, the two instruments now in place are compared in respect to their most important policy decisions: the definition of the internationality of the case as a prerequisite of the applicability of the respective instrument, the understanding of the choice-of-law rule on the nullity of the agreement, the scope and mode of a public policy control of the...
6 citations
TL;DR: In this paper, an empirical study of 56 cases from 19 jurisdictions dealing with a paradigmatic instance of ubiquitous infringement, cross-border online infringement of intellectual property rights (IPRs), is presented.
Abstract: An empirical study of 56 cases from 19 jurisdictions dealing with a paradigmatic instance of ubiquitous infringement – cross-border online infringement of intellectual property rights (IPRs) – show...
6 citations
TL;DR: In this article, the proper ambit of trust jurisdiction clauses is investigated and the authors propose that whether a trust-related proceeding is or is not subject to any jurisdiction clause in the trust instrument should be decided according to two key criteria: the proximity of the parties to the proceeding to the drafting of the trust instruments and whether the issues under review in the proceeding are part of the routine running of trust, an attempt to undermine the trust, or an attack on an officer's functioning within the trust framework.
Abstract: This article investigates the proper ambit of trust jurisdiction clauses. The author proposes that whether a trust-related proceeding is or is not subject to any jurisdiction clause in the trust instrument should be decided according to two key criteria: the proximity of the parties to the proceeding to the drafting of the trust instrument and whether the issues under review in the proceeding are part of the routine running of the trust, an attempt to undermine the trust, or an attack on an officer’s functioning within the trust framework. Other factors to be taken into account are the likely costs of proceedings before the chosen court and elsewhere (including difficulties over security for costs), the extent to which the chosen court offers a realistic prospect of a fair hearing, and the extent to which any court orders granted, whether by the court named in a jurisdiction clause or another court, are likely to be enforceable in practice.
5 citations
TL;DR: The Asian Principles of Private International Law (APPIL) as mentioned in this paper is a project undertaken by private international law scholars of 10 East and Southeast Asian jurisdictions to harmonize the region's private international international law rules or principles.
Abstract: The Asian Principles of Private International Law (APPIL) finalized in 2017 is a project undertaken by private international law scholars of 10 East and Southeast Asian jurisdictions to harmonize the region’s private international law rules or principles. Containing principles on choice of law, international jurisdiction, the recognition and enforcement of foreign judgements, and the judicial support of international commercial arbitration, they are the first harmonization effort in Asia based on comparative analyses of the private international law of the 10 participating APPIL-Jurisdictions. Being the first “voice of Asia” in private international law, they may serve as a model for national and regional instruments and thus may be used by the private international law legislators of Asian jurisdictions to interpret, supplement and enact their own private international law statutes; and may even be applied by state courts and arbitral tribunals, albeit not as legally binding instrument but as “soft law”....
5 citations
TL;DR: The Hartley-Dogauchi Report's interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm as mentioned in this paper.
Abstract: This article contends that the system of “qualified” or “partial” mutual trust in the Hague Choice of Court Agreements Convention (“Hague Convention”) may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably23 not permit remedies for breach of exclusive jurisdiction agreements as they may infringe the principles of mutual trust and effectiveness of EU law (effet utile) underlying the Brussels I Recast Regulation. The relationship between Article 31(2) of the Brussels I Recast Regulation and Articles 5 and 6 of the Hague Convention is mapped in this article. It will be argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nat...
4 citations
TL;DR: In this paper, the authors highlight the drawbacks of such geographical limitation concerning different aspects of the EU insolvency Regulation: in particular, jurisdiction, groups of companies, recognition of insolvencies proceedings, cooperation and communication among courts and insolventcy practitioners, and conclude that the preferred approach is to extend the scope of application of the Regulation unilaterally.
Abstract: During the recasting process of the EU Insolvency Regulation, issues relating to the relationship between the Regulation and the outer world were not debated. Indeed, the new Regulation (EU) 2015/848 maintains its territorial scope of application by making the application of the Regulation subject to the location of the centre of main interests within the territory of a Member State. This article tries to highlight the drawbacks of such geographical limitation concerning different aspects of the Regulation: in particular, jurisdiction, groups of companies, recognition of insolvency proceedings, cooperation and communication among courts and insolvency practitioners. Considering various possibilities to establish a truly universal regime, the article concludes that, in the light of the objective of an efficient administration of insolvency proceedings, the preferred approach is to extend the scope of application of the Regulation unilaterally, thereby including insolvencies significantly linked with third ...
3 citations
TL;DR: In this article, the authors propose that restitutionary claims dependent on a defendant's legal or equitable wrongdoing will in most cases be characterized in accordance with the operative cause of action, which has significant implications for private international law.
Abstract: In various common law jurisdictions, the doctrine of unconscionability is increasingly being adopted as an explanatory principle of restitution. This equitable characterization at the municipal level has significant implications for private international law. In particular, the issues of characterization and choice-of-law are brought to the fore. This paper approaches those issues from an Australian perspective. Indeed, in the post-Brexit era, it may be expected that the courts of the United Kingdom will be looking more closely to other common law jurisdictions, notably Australia, New Zealand, Canada, and the United States. The paper proposes that restitutionary claims dependent on a defendant’s legal or equitable wrongdoing will in most cases be characterized in accordance with the operative cause of action. However, actions for money had and received and quantum meruit, which arise independently of contract or wrongs, warrant a unique characterization. For such claims, the traditional lex fori approach ...
TL;DR: The Rome I Regulation as discussed by the authors is an instrument of general application that can be applied in all types of legal proceedings in the territory of the Union, including in arbitration, since it is a directly applicable EU instrument for proceedings before courts and other authorities of the Member States.
Abstract: EU Regulation No 593/2008 on the Law Applicable to Contractual Obligations (the “Rome I Regulation”) establishes uniform EU conflict of laws rules for contracts. As a directly applicable EU instrument, the Regulation applies in proceedings before courts and other authorities of the Member States. Its role in arbitration is less clear. Like its predecessor, the 1980 Rome Convention on the Law Applicable to Contractual Obligations, the Regulation does not expressly provide whether it is addressed to arbitral tribunals. A view is gaining ground that, since the Regulation is an instrument of general application, it must be applied in all types of legal proceedings in the territory of the Union, including in arbitration. If this interpretation were to be accepted, the Regulation would significantly limit two fundamental principles established in arbitration laws of the Member States: autonomy of the parties to choose the applicable law and freedom of the arbitrator from any particular conflict of laws system. ...
TL;DR: Free choice of law appears to be the pivot and the unchallenged champion of the private international law of contracts as discussed by the authors. Yet to stop at this would be a fallacy and would disregard the challenges it...
Abstract: Free choice of law appears to be the pivot and the unchallenged champion of the private international law of contracts. Yet to stop at this would be a fallacy and would disregard the challenges it ...
TL;DR: The right of children to be heard is acknowledged as a fundamental human right, as the European Court of Human Rights in the case Iglesias Casarrubios and Cantalapiedra Iglesia v Spain of 11 Octob... as discussed by the authors.
Abstract: The right of children to be heard is acknowledged as a fundamental human right, as the European Court of Human Rights in the case Iglesias Casarrubios and Cantalapiedra Iglesias v Spain of 11 Octob...
TL;DR: Wang et al. as discussed by the authors reviewed contemporary literature on Chinese conflict of laws and concluded that China has partially modernized its conflicts system and the compilation of the Chinese Civil Code may ultimately improve this system.
Abstract: This review article aims to assess the achievements and challenges of Chinese conflicts of system in the past three decades. It reviews contemporary literature on Chinese conflict of laws. It argues that, although numerous journal articles and some valuable monographs and collections have been published, Professors Zheng Sophia Tang, Yongping Xiao, and Zhengxin Huo’s Conflict of Laws in the People’s Republic of China fills a gap in the literature because it provides a comprehensive and updated review of the Chinese conflicts system, achieves a balance of national pride and constructive criticism, and conducts a precise and concise comparative study between Chinese and international/foreign laws. This review article also comments on how 2017 Chinese Civil Law General Provisions would impact on Chinese conflict of laws. It concludes that China has partially modernized its conflicts system. The compilation of the Chinese Civil Code may ultimately improve this system.
TL;DR: In this paper, the authors argue that a statutist approach can lead to conflation of subject-matter jurisdiction and choice of law, and it impedes the development of coherent principles of subject matter jurisdiction.
Abstract: Common law courts frequently rely on statutory interpretation to determine the cross-border effect of legislation. When faced with a statutory claim that has foreign elements, courts seek to determine the territorial scope of the statute as a matter of Parliamentary intent, even if it is clear that Parliament did not give any thought to the matter. In an article published in this journal in 2012, Christopher Bisping argued that “statutism” – the idea that statutory interpretation should determine whether a statute applies to foreign facts – is inconsistent with established principles of choice of law. The purpose of this paper is to demonstrate that, in addition to cutting across principles of choice of law, a statutist approach has the potential to obscure fundamental questions of subject-matter jurisdiction. In particular, statutism can lead to conflation of subject-matter jurisdiction and choice of law, and it impedes the development of coherent principles of subject-matter jurisdiction.
TL;DR: In this article, it is shown that Van Breda's rule, formulated as a "presumptive connecting factor" that a Canadian court may assert jurisdiction over an extraterritorial defendant who is "carrying on business" in the province is particularly problematic in internet cases.
Abstract: With millions of daily online transactions, internet business or e-commerce is a key feature of modern life. Yet despite its ubiquity, the Canadian law on taking jurisdiction in disputes flowing from these transactions has fallen behind the commercial realities. In particular, it is unclear when Canadian common law courts may assert jurisdiction over defendants who are “virtually carrying on business” in a province. While the Supreme Court of Canada in Club Resorts Ltd v Van Breda ostensibly promoted a new era of certainty and predictability for the law of jurisdiction, the court’s decision does anything but in the internet context. Van Breda’s rule, formulated as a “presumptive connecting factor”, that a Canadian court may assert jurisdiction over an extraterritorial defendant who is “carrying on business” in the province is particularly problematic in internet cases. The rule is uncertain and inconstantly applied, consequently imposing costs on businesses, consumers and the Canadian court system. In lig...
TL;DR: The English courts have held that the Brussels I Regulation confers private law rights, such that an employee may obtain an anti-suit injunction on the basis of their "statutory right" to be sued in England under the employment provisions of the Regulation as mentioned in this paper.
Abstract: The English courts have held that the Brussels I Regulation confers private law rights, such that an employee may obtain an anti-suit injunction on the basis of their “statutory right” to be sued in England under the employment provisions of the Regulation. This article examines the correctness of this proposition and argues that the Regulation does not confer rights or impose obligations on private individuals that they may enforce against one another. The article goes on to consider the implications of the English decisions and their remedial consequences, including the possibility of seeking an award of damages for breach of the Regulation.
TL;DR: In a series of cases, beginning in 1990, the Supreme Court of Canada has engaged in a striking reorientation of Canadian private international law, premised on a newly articulated relationship between Private International Law and the Canadian constitutional system as discussed by the authors.
Abstract: Because of its structuring function, private international law tends to be given a status distinct from the ordinary rules of domestic law. In a federal system, private international law of necessity implicates some aspects of the constitution. In a series of cases beginning in 1990 the Supreme Court of Canada has engaged in a striking reorientation of Canadian private international law, premised on a newly articulated relationship between private international law and the Canadian constitutional system. This constitutional dimension has been coupled with an enhanced notion of comity. The new dynamic has meant that changes in private international law that were initially prompted by constitutional considerations have gone further than the constitutional doctrines alone would demand. This paper traces these developments and uses them to show the challenges that the Supreme Court of Canada has faced since 1990 in constructing a relationship between Canada’s constitutional arrangements and its private intern...
TL;DR: In this paper, the authors highlight the differences between a waiver of proof of the contents of foreign law by acceptance that foreign law is similar to the lex fori and acceptance that the foreign law and its contents are as agreed and pleaded.
Abstract: In a common law forum, post-dispute agreements to apply an agreed law such as the lex fori or the party-designated foreign law are likely to be construed as waivers of proof of the contents of foreign law. This article highlights important differences between a waiver of proof of the contents of foreign law by acceptance that foreign law is similar to the lex fori and a waiver of proof of the designated foreign law by acceptance that the foreign law and its contents are as agreed and pleaded. An agreement to substitute the parties’ designated foreign law for the law designated by the forum’s conflict rules is totally different. Such an agreement is not a matter of proof but, it is argued, operates as a conflicts rule of doubtful validity. As part of its conclusion, this article clarifies that the suggested analyses of agreements on waiver of proof of foreign law are not affected by the existence of a pertinent forum mandatory choice of law rule.