Pub Date : 2023-05-04DOI: 10.1080/17441048.2023.2236388
Gerard McCormack
The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).
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Pub Date : 2023-05-04DOI: 10.1080/17441048.2023.2236419
Dan Jerker B. Svantesson, Symeon C. Symeonides
AbstractConflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.Keywords: Internetdefamationcross-border casesjurisdictionapplicable lawrecognition and enforcement of foreign judgmentsinternational law reform proposals Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 The term “libel tourism” describes situations in which a non-resident plaintiff sues a non-resident defendant in a tenuously connected country solely because of its pro-plaintiff defamation law. Until the enactment of the Defamation Act 2013, England was a magnet forum for defamation plaintiffs—mostly the rich and famous—because of its pro-plaintiff substantive law, its lenient jurisdiction law, and its forum-centric choice-of-law rules. See Trevor C. Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25.2 As an American court noted in the famous Yahoo! case, The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely en
摘要跨国诽谤案件中的法律冲突具有政治和文化敏感性，其解决一直是一个难题。但互联网的无处不在增加了它们的频率、复杂性和强度。面对网络环境的现实——包括国界的消失——一些国家已经采取单边行动来维护他们的价值观和保护他们的利益。一些国家颁布了有利于消费者或其他潜在原告的法律，而其他国家则采取措施保护包括出版商和互联网服务提供商在内的潜在被告。因此，这些冲突现在比以往任何时候都更具争议性。我们认为有更好的办法——公平的多边行动，而不是自私自利的单边行动。在本文中，我们提出了两项多边行动建议。第一个是国际法学会2019年通过的一项决议形式的一套软法律原则。第二是拟议的《诽谤示范公约》。在介绍和比较了这两种工具之后，我们将它们应用于由法院最终裁决的两个主要案例(互联网时代的第一个和最新的一个)衍生的两种场景。第一种情况是基于2002年澳大利亚高等法院对道琼斯公司诉古特尼克案的判决。第二个是基于2021年底欧盟法院判决的netflix Tv v. DR案。我们相信，这两项文书将为这些和其他跨境诽谤冲突提供更合理的解决方案。但是，如果我们不能在细节上说服读者，我们希望证明其他多边解决方案是可行和可取的，而且它们远远优于持续的单边“军备竞赛”。无论如何，我们希望这一条款将促进拟订其他多边行动建议。关键词:互联网诽谤跨境案件管辖权适用法律承认和执行外国判决国际法改革建议披露声明作者未报告潜在的利益冲突。注1“诽谤旅游”一词描述了一种情况，即非居民原告起诉非居民被告在一个关系薄弱的国家，仅仅是因为其有利于原告的诽谤法。在2013年《诽谤法》颁布之前，英国一直是诽谤原告——主要是富人和名人——的一个极具吸引力的论坛，因为它有有利于原告的实体法，宽松的管辖权法，以及以论坛为中心的法律选择规则。参见Trevor C. Hartley，“‘诽谤旅游’与法律冲突”(2010)59《国际与比较法季刊》25.2。现代世界是多元文化的家园，价值体系大相径庭。毫无疑问，美国的互联网用户经常发表违反法律的言论，例如，中国禁止宗教表达的法律，各国禁止倡导性别平等或同性恋的法律，甚至英国对新闻自由的限制。雅虎， Inc.诉La Ligue Contre Le Racisme and L 'Antisemitisme, 169 F.Supp。[d] [d] .2001。[2002]《中华人民共和国著作权法》第5卷第1期，《中华人民共和国著作权法》第4卷，《中华人民共和国著作权法》第4卷，《中华人民共和国著作权法》第4卷《华尔街日报》，2002年12月18日，at A19(致编辑的信:“言论自由将在袋鼠法庭中幸存”)[2002]李建军，陈建军，陈建军参见《保护我国持久和确立的宪法遗产(SPEECH)法》，28 U.S.C.§4102(2010)。本法禁止承认外国诽谤判决，除非:(1)外国法院的管辖权符合美国宪法正当程序条款的要求;(2)外国法院适用的诽谤法对“言论和出版自由的保护至少与美国宪法第一修正案所规定的一样多”。8见47 U.S.C.§230(c)(1)(“交互式计算机服务的提供者或用户不得被视为由另一信息内容提供者提供的任何信息的发布者或演讲者。”)参见2016年4月27日欧洲议会和理事会条例(EU) 2016/679，关于在个人数据处理和此类数据自由流动方面保护自然人，并废除指令95/46/ EC(一般数据保护条例)在18个国家中，有14个国家制定了针对跨境侵犯人格权冲突(包括诽谤)的具体法律选择规则，允许原告从几个州的法律中选择适用法律，如伤害州、原告原籍州、被告原籍州等。 见下文第44段及其所附案文IDI于1873年在比利时根特成立，其目标是“促进国际法的进步”——无论是公共的还是私人的——特别是“努力制定国际法的一般原则，以符合文明世界的法律良知”。该决议在Symeon C Symeonides，《通过互联网的跨境侵犯人格权》(Brill, 2021) 148及后续文献中得到了广泛讨论。海德堡大学的Erik Jayme教授担任联合报告员。报告员得到了由Bernard Audit教授、jrgen Basedow教授、Michael Bogdan教授、lassna gannag<e:1>教授、hassine Gaudemet-Tallon教授、Paul Lagarde教授、Alain Pellet教授、Emmanuel Roucounas教授和Walter Rudolf教授组成的IDI第八委员会的协助。西蒙尼德独自负责随附的逐条评论14 .参见丹·杰克·B·斯万特森:《国际私法与互联网》(Wolter Kluwer出版社，2021年第4版)，650-79(附逐条评论)分辨率，Art 1.2.15分辨率，Art 7.1-2。然而，如果原告在被告目前的“家乡州”提起诉讼，而被告在遭受伤害时不是在家乡州，则适用的法律是考虑到所有情况，具有最密切和最重要联系的州的国内法。同上第7.2.16条分辨率，第5.1(c)和(d)条见决议第1.11(a)-(b)条。18决议，第5.1(a)条决议，第1.8条(重点增加)见决议第4(a)条。21决议，第4(a)条参见案例c -68/93 Shevill [1995] ECR 1-415.23参见决议，第5.3.24条决议，第5.1(c)条25决议，第4(c)条。26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28参见Case C-509/09和C-161/10 eDate Advertising GmbH v. X和Martinez v. MGN Limited, EU:C:2011:685， [2011] ECR I-10269.29 Supra . 22.30参见Case C-251/20 netflix TV v. DR, EU:C:2021:1036。同样的差异存在于Gutnick的维多利亚法院的管辖基础，以及2013年诽谤法之前的英格兰和威尔士以及遵循马赛克原则的其他国家第1.11条第(a)和(b)项将被告和原告的“母国”定义为自然人的住所或经常居住地，以及法人的法定所在地、主要营业地、注册或成立地。此外，(c)项规定，如果某人的专业或商业利益受到损害，则该人的主要专业或商业机构所在州被视为该人的家乡州。33 .广告(参见n . 28)， at¶49。法院还指出，根据具体情况，原告的利益中心可能在受害者“追求……”的州。这是一项专业活动。”同上，该决议通过第1.11(c)条涵盖了这种可能性，该条指的是原告的专业或业务所在地。见上文，前一注即使原告的家乡州不符合原告利益中心的资格，只要原告在那里遭受了损害，仍然有很好的理由允许那里的管辖权。然而，由于该决议也涉及对被告的公平，它为被告提供了下文讨论的管辖权逃避决议，第5.2.36条见Keeton v. Hustler Magazine, Inc.， 465 U.S. 770 (1984).37参见Calder v. Jones, 465 U.S. 783 (1984).38它还背离了这些制度，不授权对netflix TV诉DR(见第30条
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Pub Date : 2023-05-04DOI: 10.1080/17441048.2023.2236396
Diego Zannoni
AbstractPartly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.Keywords: recognition of marriagesunderage marriagesforced marriageshuman rightsHague Convention on Celebration and Recognition of the Validity of Marriages Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Art 37 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul, 11 May 2011).2 PACE Resolution 2233(2018), Forced Marriage in Europe, adopted on 28 June 2018, para 7.5.2 in combination with para 3; PACE Resolution 1468 (2005), Forced marriages and child marriages, adopted on 5 October 2005, para 12.3 See UNICEF, Child Marriage in West and Central Africa. A Statistical Overview and Reflections on Ending the Practice, 2022, 1–108; UNICEF, Child Marriage in Eastern and Southern Africa, A Statistical Overview and Reflections on Ending the Practice, 2022, 1–100; UNICEF, Mapping of Child Marriage Initiatives in South Asia, 2016, 1–42.4 See Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, 14 November 2014, paras 21–22; PACE Resolution 1468 (2005), supra n 2, para 8. Art 19 of the Convention on the Rights of the Child obliges states to protect children from “all forms of physical or mental violence,” and the Committee on the Rights of the Child has interpreted this all-encompassing formula as including forced and early marriage. The Committee noted that given the specific vulnerability of children to maltreatment the obligation to protect them from all forms of violence should continue to apply when children under the age of 18 attain the age of majority or emancipation through early marriage and/or forced marriage. See Committee on the Rights of the Child, General Comment no. 13, 18 April 2011, footnote 13. See infra section G.5 UNFPA, S
人们可能会想到伊斯兰家庭法制度与欧洲巩固的法律原则之间可能存在的对比。关于文明的冲突，见J dvangprez，“国际私权和文明冲突”(1988)，海牙课程汇编，19-365;M-C Najm，《国际私法与文明冲突原则》(Dalloz, 2005);A Malatesta，“文化多样性与国际私法”，载于G . Venturini和S . barariatti(编)，《国际私法研究》(2009)，第643页;L . gannag<e:1>，“国际私权的交换和交换的交换”(2011年)357海牙课程汇编，235-489.13见《庆祝和承认婚姻有效性公约》序言部分(海牙，1978年3月14日)。迄今为止，《公约》有三个缔约国:澳大利亚、卢森堡和荷兰。14《庆祝和承认婚姻有效公约》第9条。15见《庆祝和承认婚姻有效公约》第11条第3款和第5款以及Ake Malmström.16的解释性报告见《庆祝和承认婚姻有效公约》第14条以及Ake Malmström.17的解释性报告中对第14条的评论参见欧洲人权法院，沙尔克和科普夫诉奥地利案，第2页。30141/04, 2010年6月24日的判决，第62段;M.等人诉意大利和保加利亚，申请号:见关于《消除对妇女一切形式歧视公约》的声明、保留、反对意见和撤回保留的通知，2006年4月10日，CEDAW/SP/2006/2。因此，很难说禁止配偶之间基于性别的歧视是一项习惯规则。相反，参见G . Carella, Diritti umani, conflitti di legge e conflitti di civilizazione (Cacucci, 2011)， 50.19 A . Del Vecchio认为，正是由于这个原因，《非洲人权和人民权利宪章》没有考虑到自由结婚的权利。A Del Vecchio，“La tutela dei diritti delle donne nelle conventions iazioni internionali”，载于T Vassalli di Dachenhausen(主编)，Atti Del convgno in memoria di Luigi Sico (Editoriale scientiica, 2011)， 323-324.20《世界人权宣言》第16条既涉及“满年龄”，也涉及拟结婚配偶的“自由和完全同意”。《消除对妇女一切形式歧视公约》(1979年12月18日，纽约)第16条要求缔约国确保“自由选择配偶的权利和只有在其自由和完全同意的情况下才结婚的权利”和“规定最低结婚年龄”。《关于同意结婚、最低结婚年龄和婚姻登记的公约》(1962年11月7日，纽约)第1条和第2条分别规定，“未经双方充分和自由同意，不得合法缔结婚姻”，并要求缔约国“规定最低结婚年龄”。《公民权利和政治权利国际盟约》(1966年12月16日)第23条同样提到“适婚年龄”和未来配偶的“自由和充分同意”。《美洲人权公约》第17条第2款和第3款提到“达到结婚年龄的男女有结婚的权利”，并规定“未经拟结婚的配偶自由和充分同意，不得缔结婚姻”。在这种背景下，《非洲宪章》所附《马普托议定书》第6 (b)条是一个例外，因为它规定(妇女)最低结婚年龄为18岁。非洲人权和人民权利法院谴责马里，因为马里没有违反《马普托议定书》将结婚年龄提高到18岁。见非洲人权和人民权利法院，《促进马里妇女权利进步协会和非洲人权与发展研究所诉马里共和国案》，2018年5月11日。22 .关于《马普托议定书》，见A·米尼奥利，“关于非洲妇女权利的说明”(2021年)《保护人权和基本自由公约》第606-637.21号国际人权法令(1950年11月4日，罗马)A .布赫，《国际私法家庭》，(2000)283海牙汇编课程96-101。这种方法通常被称为“侦察局势”[确认局势]方法，因为它的目的是使实质性局势生效，而不是使起源国为造成这种局势而采取的措施生效。Cf。
{"title":"How to balance respect for diversity and the rights of the vulnerable? (Non-)recognition of forced and underage marriage under the lens of the European Convention on Human Rights","authors":"Diego Zannoni","doi":"10.1080/17441048.2023.2236396","DOIUrl":"https://doi.org/10.1080/17441048.2023.2236396","url":null,"abstract":"AbstractPartly in view of the migratory phenomenon to which Europe is exposed, forced and underage marriages nowadays deserve careful consideration both as social phenomena and as legal institutions. This paper aims to verify whether and to what extent forced and underage marriages should be recognised in Europe. On the one hand, recognising the validity of these acts could arguably clash with fundamental values and rights protected by the European Convention on Human Rights and the Convention on Preventing and Combating Violence against Women and Domestic Violence. On the other hand, it is not possible to a priori exclude that a flat refusal to recognise a marriage validly established abroad might entail a violation of further rights of the spouses and ultimately have detrimental consequences for the parties that the refusal aims to protect. The aim is to assess whether private international law tools and techniques can offer a proper balance between respect for the fundamental values of reception societies and protection of the rights and interests of the parties involved.Keywords: recognition of marriagesunderage marriagesforced marriageshuman rightsHague Convention on Celebration and Recognition of the Validity of Marriages Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Art 37 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul, 11 May 2011).2 PACE Resolution 2233(2018), Forced Marriage in Europe, adopted on 28 June 2018, para 7.5.2 in combination with para 3; PACE Resolution 1468 (2005), Forced marriages and child marriages, adopted on 5 October 2005, para 12.3 See UNICEF, Child Marriage in West and Central Africa. A Statistical Overview and Reflections on Ending the Practice, 2022, 1–108; UNICEF, Child Marriage in Eastern and Southern Africa, A Statistical Overview and Reflections on Ending the Practice, 2022, 1–100; UNICEF, Mapping of Child Marriage Initiatives in South Asia, 2016, 1–42.4 See Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, 14 November 2014, paras 21–22; PACE Resolution 1468 (2005), supra n 2, para 8. Art 19 of the Convention on the Rights of the Child obliges states to protect children from “all forms of physical or mental violence,” and the Committee on the Rights of the Child has interpreted this all-encompassing formula as including forced and early marriage. The Committee noted that given the specific vulnerability of children to maltreatment the obligation to protect them from all forms of violence should continue to apply when children under the age of 18 attain the age of majority or emancipation through early marriage and/or forced marriage. See Committee on the Rights of the Child, General Comment no. 13, 18 April 2011, footnote 13. See infra section G.5 UNFPA, S","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134923447","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 : 2023-05-04DOI: 10.1080/17441048.2023.2239007
Leon Theimer
In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.
{"title":"Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts","authors":"Leon Theimer","doi":"10.1080/17441048.2023.2239007","DOIUrl":"https://doi.org/10.1080/17441048.2023.2239007","url":null,"abstract":"In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134923448","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189214
Mohammed Mjed Kabry, A. Ansari
Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran's non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.
{"title":"The enforcement of jurisdiction agreements in Iran","authors":"Mohammed Mjed Kabry, A. Ansari","doi":"10.1080/17441048.2023.2189214","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189214","url":null,"abstract":"Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran's non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"92 - 112"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42035585","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189779
Benedikt Köhler
The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.
{"title":"Blaming the middleman? Refusal of relief for mediator misconduct under the Singapore Convention","authors":"Benedikt Köhler","doi":"10.1080/17441048.2023.2189779","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189779","url":null,"abstract":"The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"42 - 66"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44666739","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189102
A. Yekini
Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.
{"title":"The effectiveness of foreign jurisdiction clauses in Nigeria: an empirical inquiry","authors":"A. Yekini","doi":"10.1080/17441048.2023.2189102","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189102","url":null,"abstract":"Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"67 - 91"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45853729","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189077
Matthias B. Lehmann
The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.
{"title":"Incremental international law-making: The Hague Jurisdiction Project in context","authors":"Matthias B. Lehmann","doi":"10.1080/17441048.2023.2189077","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189077","url":null,"abstract":"The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"25 - 41"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42163472","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189215
A. Kostin, Daria D. Kuraksa
The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).
{"title":"International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)","authors":"A. Kostin, Daria D. Kuraksa","doi":"10.1080/17441048.2023.2189215","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189215","url":null,"abstract":"The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"113 - 135"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48341738","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 : 2023-01-02DOI: 10.1080/17441048.2023.2189072
D. McClean
There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.
{"title":"The transfer of proceedings in international family cases","authors":"D. McClean","doi":"10.1080/17441048.2023.2189072","DOIUrl":"https://doi.org/10.1080/17441048.2023.2189072","url":null,"abstract":"There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":"19 1","pages":"1 - 24"},"PeriodicalIF":0.4,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42069215","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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