Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0013
James J. Edelman, Madeleine Salinger
This essay considers the underlying rationale for the principle of comity in private international law. It explains the meaning and operation of a widely accepted limit to the principle which applies when comity runs contrary to fundamental principles of justice, by drawing on insights provided by Adrian Briggs in his lectures on comity to the Hague Academy of International Law. The essay uses the principle of privacy as a case study to assess whether new fundamental principles of justice might arise and, if so, how they might be recognised.
本文探讨了国际私法中礼让原则的基本原理。通过借鉴阿德里安·布里格斯(Adrian Briggs)在海牙国际法学院(Hague Academy of International Law)关于礼让的讲座中提供的见解，解释了在礼让与正义的基本原则相违背时，适用于礼让的原则的广泛接受的限制的含义和操作。本文以隐私原则为个案研究，评估是否可能出现新的基本正义原则，如果出现，它们将如何得到认可。
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Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0007
A. Burrows
This essay revisits the relationship between the conflict of laws and the law of unjust enrichment (or, more widely, the law of restitution) in light of shifts in the legal landscape over the past forty years. It considers the rules of jurisdiction and of choice of law applied by the English courts, accounting for the effects of the UK’s departure from the European Union.
{"title":"The Conflict of Laws and Unjust Enrichment","authors":"A. Burrows","doi":"10.1093/oso/9780198868958.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0007","url":null,"abstract":"This essay revisits the relationship between the conflict of laws and the law of unjust enrichment (or, more widely, the law of restitution) in light of shifts in the legal landscape over the past forty years. It considers the rules of jurisdiction and of choice of law applied by the English courts, accounting for the effects of the UK’s departure from the European Union.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121073929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0008
M. Ooi
In this essay, the author examines how the conflict of laws has approached the task of determining the law applicable to issues relating to securities, and whether that approach is suitable for determining the law applicable to the proprietary aspects of securities created or traded through the use of distributed ledger technology (DLT), including cryptosecurities, and other new forms of securities holding and trading.
{"title":"Choice of Law in the Shifting Sands of Securities Trading","authors":"M. Ooi","doi":"10.1093/oso/9780198868958.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0008","url":null,"abstract":"In this essay, the author examines how the conflict of laws has approached the task of determining the law applicable to issues relating to securities, and whether that approach is suitable for determining the law applicable to the proprietary aspects of securities created or traded through the use of distributed ledger technology (DLT), including cryptosecurities, and other new forms of securities holding and trading.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131397133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0012
E. Peel
This essay assesses the extent to which some of the central questions of private international law (jurisdictional venue, applicable law) can be subjected to the re-distributive will of the parties, like any other subject matter of a contract, and the extent and reach of the remedies available as a consequence. It focuses principally on the decisions of the English courts and critically examines Adrian Briggs’ contribution to the development of the law in this area.
{"title":"How Private is English Private International Law?","authors":"E. Peel","doi":"10.1093/oso/9780198868958.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0012","url":null,"abstract":"This essay assesses the extent to which some of the central questions of private international law (jurisdictional venue, applicable law) can be subjected to the re-distributive will of the parties, like any other subject matter of a contract, and the extent and reach of the remedies available as a consequence. It focuses principally on the decisions of the English courts and critically examines Adrian Briggs’ contribution to the development of the law in this area.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123436205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0006
Koji Takahashi
This essay proposes a principled approach to determining the governing law of arbitration agreements and jurisdiction agreements. Acknowledging the usefulness of the principle of severability in the sphere of substantive law, the author opposes the extension of the principle to the sphere of choice of law analysis to treat such agreements as a distinct contract severed from the matrix contract. The author, however, accepts that such agreements are, like any other terms in the same matrix contract, subject to the choice of law technique for splitting up terms within a single contract known as dépeçage, while suggesting that the possibility of involuntary dépeçage should be circumscribed. It is noted that splitting up terms within a contract by means of dépeçage is not the same as treating a term as a distinct contract in terms of choice of law methodology. This essay also examines English cases and seeks to reconcile the proposed approach with the text of existing instruments.
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Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0001
A. Bell
This essay considers and revisits the concept of the ‘natural forum’ thirty-five years after the landmark decision of the House of Lords in Spiliada Maritime Corporation v Cansulex. It considers the role of that concept throughout the common law world and whether the concept is still fit for purpose in light of changes in the legal and procedural landscape during this period.
{"title":"The Natural Forum Revisited","authors":"A. Bell","doi":"10.1093/oso/9780198868958.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0001","url":null,"abstract":"This essay considers and revisits the concept of the ‘natural forum’ thirty-five years after the landmark decision of the House of Lords in Spiliada Maritime Corporation v Cansulex. It considers the role of that concept throughout the common law world and whether the concept is still fit for purpose in light of changes in the legal and procedural landscape during this period.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124798574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0009
Adam Rushworth
This essay seeks to outline the theoretical basis underpinning the approach to remedies in the conflict of laws in light of the application of the rules contained within the Rome I and Rome II Regulations. It examines issues that have arisen in practice, in particular in cases before the courts of England and Wales, including with respect to matters of evidence, damages and interest, interim remedies and declaratory relief.
{"title":"Remedies and the Conflict of Laws","authors":"Adam Rushworth","doi":"10.1093/oso/9780198868958.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0009","url":null,"abstract":"This essay seeks to outline the theoretical basis underpinning the approach to remedies in the conflict of laws in light of the application of the rules contained within the Rome I and Rome II Regulations. It examines issues that have arisen in practice, in particular in cases before the courts of England and Wales, including with respect to matters of evidence, damages and interest, interim remedies and declaratory relief.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129849998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0002
M. Davies
This essay addresses the development of the forum conveniens doctrine across the common law world, in particular in the United Kingdom, United States and Australia, and examines in particular the role played by public interest factors in light of technological developments marginalising the significance of the parties’ private interests.
{"title":"Forum Non Conveniens: Now We Are Much More Than Ten","authors":"M. Davies","doi":"10.1093/oso/9780198868958.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0002","url":null,"abstract":"This essay addresses the development of the forum conveniens doctrine across the common law world, in particular in the United Kingdom, United States and Australia, and examines in particular the role played by public interest factors in light of technological developments marginalising the significance of the parties’ private interests.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120813756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0004
A. Dickinson
This essay casts a critical gaze at the willingness of courts in the common law world, and elsewhere, to grant injunctions to restrain proceedings before courts of other legal systems (so called ‘anti-suit injunctions’). It scrutinises the legal basis for the granting of such relief by the courts of England and Wales, and seeks to build upon that foundation by identifying reasons for and against the granting of anti-suit injunctions and ascribing limits to the courts’ power to do so.
{"title":"Taming Anti-suit Injunctions","authors":"A. Dickinson","doi":"10.1093/oso/9780198868958.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0004","url":null,"abstract":"This essay casts a critical gaze at the willingness of courts in the common law world, and elsewhere, to grant injunctions to restrain proceedings before courts of other legal systems (so called ‘anti-suit injunctions’). It scrutinises the legal basis for the granting of such relief by the courts of England and Wales, and seeks to build upon that foundation by identifying reasons for and against the granting of anti-suit injunctions and ascribing limits to the courts’ power to do so.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116611096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-17DOI: 10.1093/oso/9780198868958.003.0003
Janet Walker
This essay addresses the role that judges play in shaping the grounds for the exercise of jurisdiction. It considers how courts, in particular in England and Wales and in Canada, have moulded the gateways for exercising jurisdiction in cross-border cases, with a particular focus on the approach in ‘holiday tort’ cases such as Brownlie v Four Seasons (UKSC) and Club Resorts v Van Breda (Can SC). It argues that most of the gateways should be treated as legal standards and exercised on a presumptive basis subject to the courts’ discretion to decline to do so in particular cases, but some gateways have the inherent potential to be exorbitant and so should be exercised only on a discretionary basis.
{"title":"The Distant Shore: Discretion and the Extent of Judicial Jurisdiction","authors":"Janet Walker","doi":"10.1093/oso/9780198868958.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198868958.003.0003","url":null,"abstract":"This essay addresses the role that judges play in shaping the grounds for the exercise of jurisdiction. It considers how courts, in particular in England and Wales and in Canada, have moulded the gateways for exercising jurisdiction in cross-border cases, with a particular focus on the approach in ‘holiday tort’ cases such as Brownlie v Four Seasons (UKSC) and Club Resorts v Van Breda (Can SC). It argues that most of the gateways should be treated as legal standards and exercised on a presumptive basis subject to the courts’ discretion to decline to do so in particular cases, but some gateways have the inherent potential to be exorbitant and so should be exercised only on a discretionary basis.","PeriodicalId":333808,"journal":{"name":"A Conflict Of Laws Companion","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115120819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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