Studies in Private International Law - Böcker

This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings. The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such. Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

This book grew out of a major European Union (EU) funded project on the Hague Maintenance Convention of 2007 and on the EU Maintenance Regulation of 2009. The project involved carrying out analytical research on the implementation into national law of the EU Regulation and empirical research on the first year of its operation in practice. The project also engaged international experts in a major conference on recovery of maintenance in the EU and worldwide in Heidelberg in March 2013. The contributions in this book are the revised, refereed and edited versions of the best papers that were given at the conference. The book is divided into four parts: (i) comparative context (ii) international, looking at national and non-European regional practice and how the Hague Convention could change things; (iii) international and the EU, looking at issues covered by both the Hague Convention and the EU Regulation; and (iv) the EU - looking at the Maintenance Regulation. This is the first study to look carefully at both of the new cross-border maintenance regimes globally and in Europe and to begin the examination of the practical operation of the latter regime. The approval of the Hague Convention by the EU on 9 April 2014 is a major step forward for its practical significance in enabling the recovery of child and spousal support, as from 1 August 2014 all of the 28 EU Member States apart from Denmark will be bound by the Convention.

This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

A nation's prosperity depends not only on the willingness of its businesses to export goods and services, and of its citizens and residents to travel to take advantage of opportunities overseas, but also on the willingness of the businesses and citizens of other nations to cross the nation's borders to do business. Economic expansion, and parallel increases in tourism and immigration, have brought Australians more frequently into contact with the laws and legal systems of other nations. In particular, in recent years, trade with partners in the Asia-Pacific Region has become increasingly important to the nation's future. At the same time, Australian courts are faced with a growing number of disputes involving foreign facts and parties. In recognition of these developments, and the need to ensure that the applicable rules meet the needs both of transacting parties and society, the Attorney-General's Department launched in 2012 a full review of Australian rules of private international law. This collection examines the state and future of Australian private international law against the background of the Attorney-General's review. The contributors approach the topic from a variety of perspectives (judge, policy maker, practitioner, academic) and with practical and theoretical insights as to operation of private international law rules in Australia and other legal systems.This title is included in Bloomsbury Professional's International Arbitration online service.

PRAISE FOR THE BOOK:"This constitutes a work of impressive scholarship that will become a major reference point for future discourse on choice of court agreements. Dr Ahmed advances a firm thesis in a lucid manner that will satisfy both academics and practitioners. The discussion is supported by a monumental foundation of underpinning research. Ahmed’s monograph throughout shows clear understanding of underlying substantive laws and in Chapter 11 displays a refreshing willingness to engage in intelligent speculation on the implications of Brexit."Professor David Milman, University of Lancaster"The book is an excellent attempt to understand the theoretical underpinnings of choice of court agreements in private international law ... Anyone with an interest in the theory and practice of choice of court agreements, in particular in mechanisms for their enforcement, should read this book. They will find much of value by doing so."Professor Paul Beaumont, University of Aberdeen (from the Series Editor’s Preface)This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (‘Hague Convention’) and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions.

No one would dispute that the duty to provide for those that you have a legal and moral obligation to support is very important. With the movement and migration of people both within Europe and globally, there are more and more families and relations who live in different States. Therefore it is imperative that suitable and workable methods exist to create maintenance obligations and then secure the transfer of funds, particularly from abroad. In the book the provisions in EU Maintenance Regulation no 4/2009 and the Hague Maintenance Convention of 2007 are analysed in order to discover what developments and therefore potential improvements have been made in relation to the recovery of maintenance from abroad. The book also includes an empirical study on the first year of operation of the Maintenance Regulation. Data collected has been analysed in order to supplement the critique of the instruments. The information and analysis is used to suggest suitable solutions for the future, which include amendments to the Regulation and recommendations for best practice.

This important book systematically analyses the private international law issues regarding private antitrust damages claims which arise out of transnational competition law infringements. It identifies those problems that need to be considered by injured parties, defendants, judges and policy-makers when dealing with cross-border private antitrust damages claims in a global context. It considers the post-Brexit landscape and the implications in cross border private proceedings before the English courts and suggests how the legal landscape should be developed. It also sets out how private international law techniques could play an increasingly important role in private antitrust enforcement.Comprehensive and rigorous, this is required reading for scholars of both competition litigation and private international law.

This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes.The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

The second edition of this highly recommended work addresses the interaction between conflict of laws, dispute resolution, electronic commerce and consumer contracts. In addition it identifies specific difficulties that conflicts lawyers and consumer lawyers encounter in electronic commerce and proposes original approaches to balance the conflict of interest between consumers’ access to justice and business efficiency. The European Union has played a leading role in this area of law and its initiatives are fully explored. It pays particular attention to the most recent development in collective redress and alternative/online dispute resolution. By adopting multiple research methods, including a comparative study of the EU and US approach; historical analysis of protective conflict of laws; doctrinal analysis of legal provisions and economic analysis of law, it provides the most comprehensive examination of frameworks in cross-border consumer contracts.

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.

This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from territorial power of states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests. The book applies this normative view to the existing rules of jurisdiction in the European Union and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. The book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules.

This book offers a contractual framework for the regulation of party autonomy in choice of law. The party autonomy rule is the cornerstone of any modern system of choice of law; embodying as it does the freedom enjoyed by parties to a cross-border legal relationship to agree on the law applicable to it. However, as this study shows, the rule has a major shortcoming because it fails to give due regard to the contractual function of the choice of law agreement. The study examines the existing law on choice of law agreements, by reference to the law of both common and civil law jurisdictions and international instruments. Moreover, it suggests a new coherent approach to party autonomy that integrates both the law of contract and choice of law. This important new study should be read with interest by private international law scholars.

This monograph provides an in-depth analysis of Article 7 of the Rome II Regulation, and its interplay with other EU PIL provisions, from a litigation perspective. Simultaneously, due to its critical approach, it provides a blueprint for the European legislator to implement future legislative amendments in the said rules, in order to suppress their limitations. Overall, the book reaches conclusions on:*whether it is effective at all, from the standpoint of environmental protection, to intervene in environmental matters though PIL means; *whether PIL interventions in environmental matters enhance and spread the EU’s environmental law policy, both inside and outside the EU*whether the EU is adequately using the PIL tools at its disposal to intervene in (environmental) global governance.

In recent decades, the rise in cross-border law violations has harmed numerous victims around the globe. The damages are often dispersed and low-level. As a result, the private enforcement gap has deepened and collective redress represents an interesting procedural instrument that is able to provide effective access to justice.This book analyses thoroughly the dominant collective redress models adopted in the EU. Data from 13 Member States has been catalogued and categorised. The research mainly focuses on the consumer law field but frequent references to financial and data protection-related cases are made. The dominant collective redress models are then studied from a private international law perspective. In particular, the book highlights the current mismatch between collective redress on the one hand, and rules on international jurisdiction on the other. Additionally, it notes that barriers to cross-border litigation remain significant for victims and their representatives. The unprecedented empirical study included in this book confirms that statement. Observing that EU measures have not satisfactorily lowered those barriers, the author proposes the creation of a new head of jurisdiction for cases of international collective redress.This book will be of interest to private international law scholars, researchers, students, legal practitioners, judges and policy-makers. It is a reference point for those with an interest in cross-border collective redress in particular, and private international law in general.

This book provides a substantial overview of the discipline of private international law viewed from a global perspective. The guide is divided into 4 key sections. Theory Institutional and Conceptual Framework Issues Civil and Commercial Law (apart from Family Law) Family LawEach chapter is written by a leading expert(s). The chapters address specific areas/aspects of private international law and consider the existing global solutions and the possibilities of improving/creating them. 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. An essential resource for academics, practitioners and students alike.

This book offers a global solution for determining the law applicable to a claim to clawback an inter vivos gift from a third party within the context of a succession. The book aims to identify an appropriate and applicable legal framework which supports legal certainty for cross-border estate planning and protects the legitimate expectations of the relevant parties. This is an area of private international law that has yet to be handled satisfactorily – as can be seen by the inadequate treatment of clawback from third parties in the 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, and the 2012 EU Succession Regulation.

Economic sanctions are instruments of foreign policy. However, they can also affect legal relations between private parties – principally in contract. In such cases, the court or arbitration tribunal seized must decide whether to give effect to the economic sanction in question. Private international law functions as a ‘filter’, transmitting economic sanctions that originate in public law to the realm of private law. The aim of this book is to examine how private international law rules can influence the enforcement of economic sanctions and their related foreign policy objectives. A coherent EU foreign policy position – in addition to promoting legal certainty and predictability – would presuppose a uniform approach not only concerning the economic sanctions of the EU, but also with regard to the restrictive measures imposed by third countries. However, if we examine in detail the application of economic sanctions by Member States’ courts and arbitral tribunals, we find a somewhat different picture. This book argues that this can be explained in part by the divergence of private international law approaches in the Member States.

This book provides an unprecedented analysis on the place of performance. The central theme is that the place of performance is of considerable significance as a connecting factor in international commercial contracts. This book challenges and questions the approach of the European legislator for not explicitly giving special significance to the place of performance in determining the applicable law in the absence of choice for commercial contracts. It also contains, inter alia, an analogy to matters of foreign country mandatory rules, and the coherence between jurisdiction and choice of law. It concludes by proposing a revised Article 4 of Rome I Regulation, which could be used as an international solution by legislators, judges, arbitrators and other stakeholders who wish to reform their choice of law rules.

PRAISE FOR THE BOOK:"This constitutes a work of impressive scholarship that will become a major reference point for future discourse on choice of court agreements. Dr Ahmed advances a firm thesis in a lucid manner that will satisfy both academics and practitioners. The discussion is supported by a monumental foundation of underpinning research. Ahmed’s monograph throughout shows clear understanding of underlying substantive laws and in Chapter 11 displays a refreshing willingness to engage in intelligent speculation on the implications of Brexit."Professor David Milman, University of Lancaster"The book is an excellent attempt to understand the theoretical underpinnings of choice of court agreements in private international law ... Anyone with an interest in the theory and practice of choice of court agreements, in particular in mechanisms for their enforcement, should read this book. They will find much of value by doing so."Professor Paul Beaumont, University of Aberdeen (from the Series Editor’s Preface)This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (‘Hague Convention’) and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions.

This substantial and original book examines how the EU Private International Law (PIL) framework is functioning and considers its impact on the administration of justice in cross-border cases within the EU. It grew out of a major project (ie EUPILLAR: European Union Private International Law: Legal Application in Reality) financially supported by the EU Civil Justice Programme. The research was led by the Centre for Private International Law at the University of Aberdeen and involved partners from the Universities of Freiburg, Antwerp, Wroclaw, Leeds, Milan and Madrid (Complutense). The contributors address the specific features of cross-border disputes in the EU by undertaking a comprehensive analysis of the Court of Justice of the EU (CJEU) and national case law on the Brussels I, Rome I and II, Brussels IIa and Maintenance Regulations. Part I discusses the development of the EU PIL framework. Part II contains the national reports from 26 EU Member States. Parts III (civil and commercial) and IV (family law) contain the CJEU case law analysis and several cross-cutting chapters. Part V briefly sets the agenda for an institutional reform which is necessary to improve the effectiveness of the EU PIL regime. This comprehensive research project book will be of interest to researchers, students, legal practitioners, judges and policy-makers who work, or are interested, in the field of private international law.

As the world becomes smaller, family law is becoming truly global, giving rise to more and more questions for private international law. This book looks at the sensitive and complex question of child abduction, with a unique child rights perspective. Taking Islamic law as its case study, it delves into child abduction in key jurisdictions from Iran to Saudi Arabia and Libya to Pakistan. Rigorous doctrinal analysis is enhanced by empirical insights, namely interviews with abductees, parents and professionals. It is an excellent guide to a complicated field.

This book provides an unprecedented analysis on the place of performance. The central theme is that the place of performance is of considerable significance as a connecting factor in international commercial contracts. This book challenges and questions the approach of the European legislator for not explicitly giving special significance to the place of performance in determining the applicable law in the absence of choice for commercial contracts. It also contains, inter alia, an analogy to matters of foreign country mandatory rules, and the coherence between jurisdiction and choice of law. It concludes by proposing a revised Article 4 of Rome I Regulation, which could be used as an international solution by legislators, judges, arbitrators and other stakeholders who wish to reform their choice of law rules.

The forum (non) conveniens doctrine provides the basis for the discretionary exercise of jurisdiction by English courts in private international law disputes. London’s pre-eminence as a centre for international commercial litigation has led to its frequent deployment in proceedings where parties disagree over where a case should be heard. The doctrine’s significance is not limited to England but extends to many Commonwealth jurisdictions which have embraced it. This is the first book-length study devoted entirely to examining the forum (non) conveniens doctrine’s past, present, and future from the perspective of the law in England. By offering a meticulous and critical analysis of relevant historical and contemporary sources in England and elsewhere, it seeks to fill gaps in relevant knowledge of the English forum (non) conveniens doctrine, and challenge certain views concerning its operation that have come to be regarded as representing the orthodoxy. In this respect, the book attempts to refine our understanding of the doctrine’s historical development, evaluate its application in the years following its formal recognition in England, and examine the case for revising it, given the changing nature of international commercial litigation in recent decades. The book’s ultimate objective is to act as an authoritative and comprehensive reference point for those with an interest in the forum (non) conveniens doctrine, more specifically, and cross-border private litigation, more generally.

This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings. The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such. Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

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.

In recent decades, the rise in cross-border law violations has harmed numerous victims around the globe. The damages are often dispersed and low-level. As a result, the private enforcement gap has deepened and collective redress represents an interesting procedural instrument that is able to provide effective access to justice.This book analyses thoroughly the dominant collective redress models adopted in the EU. Data from 13 Member States has been catalogued and categorised. The research mainly focuses on the consumer law field but frequent references to financial and data protection-related cases are made. The dominant collective redress models are then studied from a private international law perspective. In particular, the book highlights the current mismatch between collective redress on the one hand, and rules on international jurisdiction on the other. Additionally, it notes that barriers to cross-border litigation remain significant for victims and their representatives. The unprecedented empirical study included in this book confirms that statement. Observing that EU measures have not satisfactorily lowered those barriers, the author proposes the creation of a new head of jurisdiction for cases of international collective redress.This book will be of interest to private international law scholars, researchers, students, legal practitioners, judges and policy-makers. It is a reference point for those with an interest in cross-border collective redress in particular, and private international law in general.

This book undertakes a systematic analysis of the 2019 Hague Judgments Convention, the 2005 Hague Choice of Court Convention 2005, and the 2017 Commonwealth Model Law on recognition and Enforcement of Foreign Judgments from a pragmatic perspective. The book builds on the concept of pragmatism in private international law within the context of recognition and enforcement of judgments. It demonstrates the practical application of legal pragmatism by setting up a toolbox (pragmatic goals and methods) that will assist courts and policymakers in developing an effective and efficient judgments’ enforcement scheme at national, bilateral and multilateral levels.Practitioners, national courts, policymakers, academics, students and litigants will benefit from the book’s comparative approach using case law from the United Kingdom and other leading Commonwealth States, the United States, and the Court of Justice of the European Union. The book also provides interesting findings from the empirical research on the refusal of recognition and enforcement in the UK and the Commonwealth statutory registration schemes respectively.

This book undertakes a systematic analysis of the 2019 Hague Judgments Convention, the 2005 Hague Choice of Court Convention 2005, and the 2017 Commonwealth Model Law on recognition and Enforcement of Foreign Judgments from a pragmatic perspective. The book builds on the concept of pragmatism in private international law within the context of recognition and enforcement of judgments. It demonstrates the practical application of legal pragmatism by setting up a toolbox (pragmatic goals and methods) that will assist courts and policymakers in developing an effective and efficient judgments’ enforcement scheme at national, bilateral and multilateral levels.Practitioners, national courts, policymakers, academics, students and litigants will benefit from the book’s comparative approach using case law from the United Kingdom and other leading Commonwealth States, the United States, and the Court of Justice of the European Union. The book also provides interesting findings from the empirical research on the refusal of recognition and enforcement in the UK and the Commonwealth statutory registration schemes respectively.