Commercial Issues in Private International Law: A Common Law Perspective

Description

As people, business, and information cross borders, so too do legal disputes. Globalisation means that courts need to apply principles of private international law with increasing frequency. Thus, as the Law Society of New South Wales recognised in its 2017 report The Future of Law and Innovation in the Profession, knowledge of private international law is increasingly important to legal practice. In particular, it is essential to the modern practice of commercial law. This book considers key issues at the intersection of commercial law and private international law. The authors include judges, academics and practising lawyers, from Australia, New Zealand, Singapore and the United Kingdom. They bring a common law perspective to contemporary problems concerning the key issues in private international law: jurisdiction, choice of law, and recognition and enforcement of foreign judgments. The book also addresses issues of evidence and procedure in cross-border litigation, and the impact of recent developments at the Hague Conference on Private International Law, including the Convention on Choice of Court Agreements on common law principles of private international law. Volume 22 in the series Studies in Private International Law Foreword Series Editor’s Preface Editors’ Preface Table of Contents List of Contributors Table of Cases Table of Legislation 1. Commercial Issues in Private International Law I. The Leges Maritima and Mercatoria II. Long-arm Service III. Stays and Anti-suit Injunctions IV. Electronic Communication V. Cross-border Insolvency VI. Conclusion PART I: JURISDICTION 2. In Absentia: The Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction I. Introduction II. The Development of Adjudicatory Jurisdiction in New South Wales III. The 2016 Reforms IV. Conclusion 3. The Exercise of Jurisdiction and the Role of Enforcement I. Introduction II. Recent Cases III. Discussion IV. Conclusion 4. The Case Management Stay in Private International Law I. Introduction II. The Case Management Stay in Europe III. The Case Management Stay Outside Europe PART II: FOREIGN JUDGMENTS 5. The 2005 Hague Convention: A Panacea for Non-Exclusive and Asymmetric Jurisdiction Agreements Too? I. What are Exclusive and Non-Exclusive Jurisdiction Agreements under the Convention? II. Conditions for Recognition and Enforcement of Judgments Rendered by Courts with Non-Exclusive Jurisdiction III. Evaluation: Recognition and Enforcement under the Convention Versus the Status Quo IV. Conclusion 6. Reciprocal Recognition and Enforcement of Foreign Judgments in China: The Proposal of a Registration System I. Introduction II. Promising Developments III. Institutional Design: A Foreign Judgment Registration System IV. What Judgments can be Registered? V. What are the Jurisdictional Grounds to Set Aside Registration? VI. Conclusion PART III: CHOICE OF LAW 7. Paying Attention to Choice of Law in International Commercial Arbitration – or – Why the Conflict of Laws Always Matters I. Introduction II. Definitions and Scope III. The Problem Stated–Presenting Choice of Law and Conflicts of Laws as Binary Alternatives IV. The Interactions of Choice of Law and Conflicts of Laws in International Commercial Arbitration V. Conclusion 8. The Conflict of Laws as a Shared Language for the Cross-Border Application of Statutes I. The Problem: Silent Statutes and Foreign Facts II. The Two Approaches III. A Conflict of Disciplines? IV. Resolving the Conflict V. Brown-Take Three VI. Conclusion 9. Choice of Law in the Age of Statutes: A Defence of Statutory Interpretation after Valve I. Introduction II. Valve III. Statutory Interpretation in Cross-Border Litigation IV. The Policy of the Law in Cross-Border Litigation V. Conclusion PART IV: THE DEVELOPING LEGAL LANDSCAPE 10. New and Alternative Approaches to Proof of Foreign Law: A Practitioners’ Perspective I. Introduction II. Orthodox Approach III. Addressing the Limitations of the Orthodox Approach IV. Conclusion 11. The Rise of Party Autonomy in Commercial Conflict of Laws I. Introduction II. The Hague Convention on Choice of Court Agreements III. The Hague Principles on Choice of Law for International Commercial Contracts IV. Choice of Law for Torts V. Choice of Law for Fiduciary Duties VI. Recognition and Enforcement of Foreign Judgments VII. Conclusion 12. Developing Australian Private International Law: The Hague Choice of Court Convention & The Hague Principles of Choice of Law in International Commercial Contracts I. Introduction II. Choice of Court Agreements III. Choice of Law Agreements IV. Conclusion PART V: CONCLUDING REMARKS 13. Conclusion I. Introduction II. The New Harmonised Rules for Service Ex Juris III. Concurrent Proceedings IV. Evidence and Procedure V. Conclusion Index