A Guide to Global Private International Law

Description

This book provides a substantial overview of the discipline of private international law viewed from a global perspective. The guide is divided into four key sections: theory; institutional and conceptual framework issues; civil and commercial law; and family law. The chapters are written by leading experts. They address specific areas/aspects of private international law, consider the existing global solutions, and assess the potential to improve or create new ones. Where appropriate, the chapters are co-authored by experts from different legal perspectives in order to achieve as balanced a picture as possible. The range of contributions includes authors from Europe, North America, Latin America, Africa, Asia and Oceania. It is an essential resource for academics, practitioners and students alike. Volume 32 in the series Studies in Private International Law Series Editor’s Preface Preface Contents List of Contributors Part I: Introduction 1. Introduction Part II: Theory 2. Pragmatism and Private International Law I. Introduction II. Pragmatic Movements III. Pragmatism and Law IV. A Pragmatic Theory of Private International Law V. Conclusion 3. Characterisation I. Introduction II. The Characterisation Problem III. Peculiarities of Unified Private International Law IV. Characterisation Rules in International Instruments V. Autonomous Characterisation VI. Institutional Aspects: Judges, Legislators and Professors 4. Connecting Factors I. Introduction II. Outline and Focus of the Chapter III. Connecting Factors in HCCH Family Conventions IV. The Influence of EU Cross-Border Family Law V. Geneva Refugee Convention Interpretation VI. National Courts VII. Discussion VIII. Final Conclusions 5. Renvoi and Preliminary Questions I. Introduction II. Renvoi III. Preliminary Question 6. Public Policy and Mandatory Provisions I. Introduction II. The Concept of an Escape Mechanism III. When Public Policy Applies IV. When Mandatory Rules Apply V. The Doctrine of Overriding Statutes: Another Mechanism with Similar Effects VI. How Strong an Interest? VII. The American Theory of Interest Analysis VIII. Interest Analysis Compared with Conventional PIL Theories IX. Public Policy and Mandatory Provisions in International Instruments X. Conclusion Part III: Institutional and Framework Issues 7. Hague Conference on Private International Law I. Introduction II. The HCCH as the Cradle of Global Private International Law III. The Hague Conference as a Contemporary Intergovernmental Organisation IV. Organisation and Working Methods V. Contribution to Global Private International Law VI. Looking Ahead: The Hague Conference as an Evolving Forum for Global Private International Law 8. National Organs and Central Authorities under HCCH Conventions I. Introduction II. National Organs III. Central Authorities IV. The Continuing Legacy of National Organs and Central Authorities 9. Substance and Procedure I. Introduction II. Background III. General Principles IV. The Principles Applied V. Conclusion 10. Application of Foreign Law I. Introduction II. The Procedural Treatment of Foreign Law III. Access to Foreign Law (and Making One's Law Available) IV. Future Outlook 11. States as Litigants in International Matters before Domestic Courts I. Introduction II. Case Study Method III. Cases Relating to Commercial Activity or Employment Contracts IV. Foreign Military Operations and Personal Damages Suffered by Civilians V. Cross-Border Enforcement of Regulatory Laws VI. General Conclusion 12. Service of Process I. Introduction II. The Hague Service Convention III. European Union Arrangements IV. Inter-American Arrangements V. The CIS Convention VI. Other Conventions and Arrangements VII. Conclusion 13. Taking of Evidence I. Introduction II. Foreign Evidence and the Convention III. Uncertainties and Interpretative Inconsistencies IV. The Convention's Character: The Only, the First or the Last Resort? V. Conclusion Part IV: Civil and Commercial Law (Excluding Family Law) 14. Law Applicable to Contracts I. Introduction II. Party Autonomy III. Law Applicable in the Absence of Contractual Choice IV. Conclusions 15. Contract Jurisdiction I. Introduction II. The 2019 Judgments Convention: Global Convergence on a Rule for Indirect Jurisdiction III. Contract Rules for Direct Jurisdiction 16. Companies I. Introduction II. Lex societatis III. (Attempts at) International Unification of Private International Law for Companies IV. (Attempts at) Regional Unification of Private International Law for Companies V. Outlook: From Unification to Coordination, and from Rules to Principles 17. Competition Law Enforcement: Private International Law and Access to Effective Legal Remedies in Cross-Border Cases I. Introduction II. Main Limitations of the New Hague Judgments Convention (and the HCCH)41 III. Challenges Concerning International Cooperation in Cross-Border Cases IV. PIL Mechanisms and International Cooperation in Cross-Border Competition Law Cases V. Access to Legal Remedies in Cross-Border Cases: Adjudicatory Jurisdiction and Regulatory Jurisdiction107 VI. Concluding Remarks 18. Tort: Applicable Law I. Existing Unification II. A Hague Convention on the Law Applicable to Torts? 19. Tort: Jurisdiction I. Tort and Tort Jurisdiction II. The Context: European, American and Commonwealth Tort Jurisdictions III. The Grounds of Special Tort Jurisdiction IV. The Possibility of Unifying Tort Jurisdiction 20. Unjust(ified) Enrichment I. Introduction II. Substantive Laws on Unjust(ified) Enrichment III. Jurisdiction IV. Applicable Law V. Conclusion 21. Property I. The Current State of Play Regarding Private International Law and Property II. Working Towards the Progressive Unification of Private International Law in Relation to Property: Opportunities and Challenges 22. Succession I. Introduction II. The Current Framework for Private International Law of Succession III. The Failure of the 1989 Convention and a New Convention on Clawback IV. Conclusion 23. Trusts I. Introduction II. Meaning of 'Trust' under the Convention III. Types of Trust Falling within the Ambit of the Convention IV. Preliminary Issues Excluded from the Convention V. Applicable Law Rules VI. 'Recognition' of a Trust under the Hague Trusts Convention VII. Mandatory Rules and Public Policy VIII. Sceptical Reaction in Some States IX. Trusts Falling Outside the Scope of the Convention: Constructive and Resulting Trusts X. Conclusion 24. Insolvency and Bankruptcy I. Introduction II. Normative Models III. EU Insolvency Regulation (Recast) IV. UNCITRAL Model Laws V. UNCITRAL Legislative Guide VI. Other Initiatives VII. Concluding Remarks 25. Intellectual Property I. Introduction II. Jurisdiction III. Applicable Law IV. Conclusion 26. Arbitration I. Introduction II. Delocalisation and Re-Localisation III. The Role of Private International Law in Arbitration IV. Which Private International Law? V. How Private International Law Contributes to the Effectiveness of Arbitration VI. Conflict Rules in Arbitration Law VII. Towards a Uniform Private International Law for Arbitration? 27. Maritime Exceptionalism in Global Private International Law I. Introduction II. Challenges to Global PIL Unification: Focus on Jurisdiction III. Disparity in Interpretation and Application of Unifying Provisions: Focus on Applicable Law IV. Contemporary Exceptionalism: The Recent Exclusion of Carriage of Goods by Sea Contracts from the HCCH 2019 Convention on the Recognition and Enforcement of Foreign Judgments V. What Bridges for Private International Maritime Law? VI. Conclusion 28. Choice of Court Agreements I. Introduction II. Defining Exclusive Choice of Court Agreements III. Effects of Choice of Court Agreements IV. Conclusion 29. Recognition and Enforcement of Judgments in Civil or Commercial Matters I. Introduction II. Objectives of the Two Hague Conventions III. Duty to Recognise and Enforce a Judgment IV. Bases of Jurisdiction V. Grounds for Refusal VI. Scope and Declarations Reducing the Scope VII. Minimum Harmonisation: Article 15 of Judgments and Chapter III of Choice of Court VIII. Bilateralisation IX. Conclusion 30. Conflicts of Jurisdiction I. Introduction II. Civil Law and Common Law Responses to Conflicts of Jurisdiction: An Introduction III. Civil Law and Common Law Responses to Conflicts of Jurisdiction: An Evaluation IV. Responding to Conflicts of Jurisdiction: A 'Global' Solution? V. Conclusion 31. Collective Redress I. Overview II. Aspects of Private International Law III. Recognition and Enforcement of Foreign Judgments Arising from a Collective Procedure IV. Cross-Border Recognition and Enforcement of Court-Approved Collective Settlements V. Conclusion Part V: Family Law 32. Divorce I. Introduction II. The 1970 Hague Convention on Recognition of Divorces and Legal Separations III. Necessity for a Renewed Focus on the 1970 Divorce Convention and a Complementary Convention on Conflicts of Jurisdiction IV. Conclusion 33. Parental Responsibility, Custody and Access I. Introduction II. The 1996 Child Protection Convention III. The Impact on the EU: The 2003 Brussels IIa Regulation and its 2019 Recast IV. Conclusion 34. Child Abduction I. Introduction and Aims of the 1980 Convention II. Wrongful Removal or Retention of the Child III. Exceptions to the Return of the Child under the 1980 Child Abduction Convention: An Overview IV. Conclusion 35. Adoption of Children I. Introduction II. The 1993 Adoption Convention: More than a PIL Convention III. Challenges to Unification IV. Problems with the Content and Interpretation of Unifying Laws V. Remaining Gaps to be Rectified VI. Conclusion: A Convention which Protects Children 36. Maintenance I. Introduction II. Applications III. Some Recent Statistics on Applications IV. CAs and Legal Aid V. Jurisdiction VI. Recognition and Enforcement VII. Conclusion 37. Matrimonial Property I. Introduction II. Matrimonial Property Regimes III. Personal Connecting Factor IV. Party Autonomy V. Effect of Migration During Marriage VI. The Law Applicable to Property Division on Divorce VII. The Way Ahead 38. Family Agreements Involving Children I. Introduction II. How the Current Hague Conventions Work for Family Agreements III. Binding Instrument 39. The Protection of Adults I. The Protection of Adults: An Overview II. Adults' Protection as a Human Rights Concern III. The Role of Private International Law in the Realisation of the Fundamental Rights of Adults IV. The Hague Adults Convention V. The International Protection of Adults in Prospect VI. Concluding Remarks 40. International Surrogacy and International Parentage: Hopes for a Global Solution I. The Emerging Need for Uniform Private International Law Rules on Parentage II. The Interplay between Private and Public Values in Matters of Filiation III. The Possible Features of a General Instrument in Parentage Matters IV. The Challenges of Surrogacy: National Fragmentation and Intervention of Supranational Courts V. International Surrogacy Arrangements: The Cautious Approach of an Optional Instrument VI. Concluding Remarks Part VI: Conclusion 41. Conclusion: Mapping of the Strength of Global Private International Law I. Strong II. Developing Strongly III. Great Potential IV. Weak but could be Revived V. (Largely) Non-Existent but could be Created VI. Not the Time to Act on a New Global Instrument (but Some Practical Suggestions for Application of Foreign Law) VII. Final Remark Index