Pub Date : 2020-09-01DOI: 10.1080/17441048.2020.1810864
R. F. Oppong
A new book on foreign judgment enforcement in Nigeria and South Africa seeks to ground their foreign judgment enforcement regimes – and perhaps other African countries – on a new theoretical foundation and inform judicial decisions in new directions. In a quest to promote the free movement of judgments, judges are urged to presumptively enforce foreign judgments subject to narrowly defined exceptions. This review article examines the new theory of qualified obligation and some selected issues arising from the discussion, recommendations, and findings of the book.
{"title":"The dawn of the free and fair movement of foreign judgments in Africa?","authors":"R. F. Oppong","doi":"10.1080/17441048.2020.1810864","DOIUrl":"https://doi.org/10.1080/17441048.2020.1810864","url":null,"abstract":"A new book on foreign judgment enforcement in Nigeria and South Africa seeks to ground their foreign judgment enforcement regimes – and perhaps other African countries – on a new theoretical foundation and inform judicial decisions in new directions. In a quest to promote the free movement of judgments, judges are urged to presumptively enforce foreign judgments subject to narrowly defined exceptions. This review article examines the new theory of qualified obligation and some selected issues arising from the discussion, recommendations, and findings of the book.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"575 - 593"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1810864","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49014526","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 : 2020-09-01DOI: 10.1080/17441048.2020.1845111
Kah-Wai Tan
It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.
{"title":"All that glisters is not gold? Deconstructing Rubin v Eurofinance SA and its impact on the recognition and enforcement of foreign insolvency judgments at common law","authors":"Kah-Wai Tan","doi":"10.1080/17441048.2020.1845111","DOIUrl":"https://doi.org/10.1080/17441048.2020.1845111","url":null,"abstract":"It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"465 - 492"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1845111","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49193440","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 : 2020-09-01DOI: 10.1080/17441048.2020.1846259
P. Okoli
Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.
{"title":"The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective","authors":"P. Okoli","doi":"10.1080/17441048.2020.1846259","DOIUrl":"https://doi.org/10.1080/17441048.2020.1846259","url":null,"abstract":"Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"519 - 548"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1846259","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42141043","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 : 2020-09-01DOI: 10.1080/17441048.2020.1855735
G. Laganière
This article addresses the jurisdiction of Canadian courts over transboundary pollution. It argues that a tort lawsuit brought by foreign victims of climate change against local greenhouse gas emitters could overcome jurisdictional obstacles, notably the local action rule, and proceed in Canada. The local action rule provides that Canadian courts have no jurisdiction to hear a claim involving foreign land, even when the claim lies solely in tort. It is thought to be a significant jurisdictional obstacle in transboundary environmental disputes involving foreign land. This assumption is misleading. A growing corpus of soft law instruments supports the notion of equal access to the courts of the state of origin for all victims of transboundary pollution. The courts of Canadian provinces have jurisdiction over pollution originating in the province, and the case law is more divided than generally assumed over the effect of the local action rule in tort litigation. The conclusions of this article have important implications for transboundary environmental disputes in Canada and other top greenhouse gas-producing countries. They also highlight a modest but potentially meaningful role for private international law in our global response to climate change.
{"title":"Local polluters, foreign land and climate change: the myth of the local action rule in Canada","authors":"G. Laganière","doi":"10.1080/17441048.2020.1855735","DOIUrl":"https://doi.org/10.1080/17441048.2020.1855735","url":null,"abstract":"This article addresses the jurisdiction of Canadian courts over transboundary pollution. It argues that a tort lawsuit brought by foreign victims of climate change against local greenhouse gas emitters could overcome jurisdictional obstacles, notably the local action rule, and proceed in Canada. The local action rule provides that Canadian courts have no jurisdiction to hear a claim involving foreign land, even when the claim lies solely in tort. It is thought to be a significant jurisdictional obstacle in transboundary environmental disputes involving foreign land. This assumption is misleading. A growing corpus of soft law instruments supports the notion of equal access to the courts of the state of origin for all victims of transboundary pollution. The courts of Canadian provinces have jurisdiction over pollution originating in the province, and the case law is more divided than generally assumed over the effect of the local action rule in tort litigation. The conclusions of this article have important implications for transboundary environmental disputes in Canada and other top greenhouse gas-producing countries. They also highlight a modest but potentially meaningful role for private international law in our global response to climate change.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"390 - 422"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1855735","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45264803","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 : 2020-09-01DOI: 10.1080/17441048.2020.1809773
Bashayer Alghanim
This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments. An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.
{"title":"The enforcement of foreign judgments in Kuwait","authors":"Bashayer Alghanim","doi":"10.1080/17441048.2020.1809773","DOIUrl":"https://doi.org/10.1080/17441048.2020.1809773","url":null,"abstract":"This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments. An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"493 - 518"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1809773","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44937649","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 : 2020-09-01DOI: 10.1080/17441048.2020.1823068
Saloni Khanderia
An international contract calls for the identification of the law that would govern the transaction in the event of a dispute on the matter between the parties. Indian private international law adopts the doctrine of “the proper law of contract” to identify the legal system that will regulate an international contract. In the absence of any codification, the interpretation of the doctrine has been left to the courts. The judiciary adopts the common law tripartite hierarchy, viz., the “express choice”, “implied choice” and “the closest and most real connection” test to determine the proper law. However, the existing case law demonstrates the diverse interpretations given to each of these factors in India in the post-colonial era. The paper examines the manner in which the blind adoption of the decisions of the English courts has considerably hindered the development of Indian private international law. In this regard, the author suggests some plausible solutions to render India more amenable to international trade and commerce – such as the adoption of mechanisms similar to those formulated by its continental counterpart.
{"title":"Practice does not make perfect: Rethinking the doctrine of “the proper law of the contract” – A case for the Indian courts","authors":"Saloni Khanderia","doi":"10.1080/17441048.2020.1823068","DOIUrl":"https://doi.org/10.1080/17441048.2020.1823068","url":null,"abstract":"An international contract calls for the identification of the law that would govern the transaction in the event of a dispute on the matter between the parties. Indian private international law adopts the doctrine of “the proper law of contract” to identify the legal system that will regulate an international contract. In the absence of any codification, the interpretation of the doctrine has been left to the courts. The judiciary adopts the common law tripartite hierarchy, viz., the “express choice”, “implied choice” and “the closest and most real connection” test to determine the proper law. However, the existing case law demonstrates the diverse interpretations given to each of these factors in India in the post-colonial era. The paper examines the manner in which the blind adoption of the decisions of the English courts has considerably hindered the development of Indian private international law. In this regard, the author suggests some plausible solutions to render India more amenable to international trade and commerce – such as the adoption of mechanisms similar to those formulated by its continental counterpart.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"423 - 450"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1823068","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49279593","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 : 2020-09-01DOI: 10.1080/17441048.2020.1853321
{"title":"Postponement of the next global Journal of Private International Law Conference","authors":"","doi":"10.1080/17441048.2020.1853321","DOIUrl":"https://doi.org/10.1080/17441048.2020.1853321","url":null,"abstract":"","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"594 - 594"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1853321","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45057555","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 : 2020-05-03DOI: 10.1080/17441048.2020.1763646
{"title":"Correction","authors":"","doi":"10.1080/17441048.2020.1763646","DOIUrl":"https://doi.org/10.1080/17441048.2020.1763646","url":null,"abstract":"","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"360 - 360"},"PeriodicalIF":0.4,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1763646","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46347615","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 : 2020-05-03DOI: 10.1080/17441048.2020.1762978
M. Poesen
This article sets out to map the different tests, and their corresponding theoretical foundations, used for determining whether the employment section of the Brussels Ia Regulation applies to concurrent liabilities. Thereby it will explicate the often unspoken theories that inform seemingly straightforward approaches to characterisation on which the applicability of the employment section to concurrent liabilities hinges. It argues that the preferable way forward is the “material link test”, under which the employment section should apply insofar as the facts underlying a claim have a material link to an employment relationship in terms of time, place, means or purpose. Other solutions, which are centred on the indispensability of interpreting the employment contract or the nature of a claim’s legal basis, are to be disregarded as ineffective and overly complex.
{"title":"Concurrent liabilities and jurisdiction over individual contracts of employment under the Brussels Ia Regulation","authors":"M. Poesen","doi":"10.1080/17441048.2020.1762978","DOIUrl":"https://doi.org/10.1080/17441048.2020.1762978","url":null,"abstract":"This article sets out to map the different tests, and their corresponding theoretical foundations, used for determining whether the employment section of the Brussels Ia Regulation applies to concurrent liabilities. Thereby it will explicate the often unspoken theories that inform seemingly straightforward approaches to characterisation on which the applicability of the employment section to concurrent liabilities hinges. It argues that the preferable way forward is the “material link test”, under which the employment section should apply insofar as the facts underlying a claim have a material link to an employment relationship in terms of time, place, means or purpose. Other solutions, which are centred on the indispensability of interpreting the employment contract or the nature of a claim’s legal basis, are to be disregarded as ineffective and overly complex.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"320 - 333"},"PeriodicalIF":0.4,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1762978","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48217793","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 : 2020-05-03DOI: 10.1080/17441048.2020.1795402
Kazuaki Nishioka
Japanese courts have held that a choice of court agreement should be respected even if it would lead to derogation from domestic competition law. The exception is where there would be such a discrepancy between the outcomes before the designated foreign court and the Japanese courts that it would be intolerable to enforce the agreement from the standpoint of maintaining the public policy objectives of Japanese competition law. However, this paper puts forward an alternative approach as the more appropriate course to take, submitting that choice of court agreements should generally be respected by courts in competition law claim situations, unless they are obviously unreasonable or contrary to public policy on their face. At the jurisdictional stage, a court should not treat an agreement as invalid merely because it could potentially lead to a derogation from domestic competition law, even where such law is regarded as a body of overriding mandatory rules.
{"title":"Choice of court agreements and derogation from competition law","authors":"Kazuaki Nishioka","doi":"10.1080/17441048.2020.1795402","DOIUrl":"https://doi.org/10.1080/17441048.2020.1795402","url":null,"abstract":"Japanese courts have held that a choice of court agreement should be respected even if it would lead to derogation from domestic competition law. The exception is where there would be such a discrepancy between the outcomes before the designated foreign court and the Japanese courts that it would be intolerable to enforce the agreement from the standpoint of maintaining the public policy objectives of Japanese competition law. However, this paper puts forward an alternative approach as the more appropriate course to take, submitting that choice of court agreements should generally be respected by courts in competition law claim situations, unless they are obviously unreasonable or contrary to public policy on their face. At the jurisdictional stage, a court should not treat an agreement as invalid merely because it could potentially lead to a derogation from domestic competition law, even where such law is regarded as a body of overriding mandatory rules.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"16 1","pages":"300 - 319"},"PeriodicalIF":0.4,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17441048.2020.1795402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45831914","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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