Studies in Private International Law - Asia – serie

This collection offers a study of the regimes for the recognition and enforcement of foreign commercial judgments in 15 Asian jurisdictions: mainland China, Hong Kong, Taiwan, Japan, Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India. For practising lawyers, the book is intended as a practical guide to current law and procedures for enforcing judgments in the selected jurisdictions. However, it does not stop at describing current law and practice. Of interest to academics and students, it also analyses the common principles of the enforcement regimes across the jurisdictions, and identifies what should be regarded as the norm for enforcement in Asian countries for the purpose of attracting foreign direct investment and catalysing rapid economic development.In light of the common principles identified, the book explores how laws in Asia may generally be improved to enable judgments to be more readily enforced, while ensuring that legitimate concerns over indirect jurisdiction, due process and domestic public policy are respected and addressed. With this in mind, the book discusses the potential impact that the adoption of the 2005 Hague Convention on Choice of Court Agreements might have on Asian jurisdictions; it also considers the potential impact of the convention for the enforcement of judgments in civil and commercial matters presently being drafted by the Hague Conference on Private International Law.This timely book argues that it is imperative to adopt a uniform system for the recognition and enforcement of judgments throughout Asia if there is to be traction for the enhanced cross-border commerce that is expected to result from endeavours such as the ASEAN Economic Community (AEC), the Belt and Road Initiative (BRI), CPTPP (also known as TPP-11), and RCEP.

This is the leading reference on Japanese private international law in English. The chapters systematically cover the whole of Japanese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes. The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. The chapters also look into conflict of law questions arising in arbitration and assess Japanese involvement in the global harmonisation of private international law. In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible and identify deficiencies and anticipate difficulties in the existing law. The book thus presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.

This open access book is the leading reference on Indonesian private international law in English.The chapters systematically cover the whole of Indonesian private international law including commercial matters, family law, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. The chapters also look into conflict of law questions arising in arbitration and assess Indonesian involvement in the harmonisation of private international law globally and regionally within ASEAN. Similarly to the other volumes in the Studies in Private International Law - Asia series, this book presents the Indonesian conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

Written with the assistance of a team of lecturers at the Shanghai University of Political Science and Law, this book is the leading reference on Chinese private international law in English. The chapters systematically cover the whole of Chinese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes. The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. They also look into conflict of law questions arising in arbitration and assess China’s involvement in the harmonisation of private international law globally and regionally within the Belt and Road Initiative. Similarly to the Japanese and Indonesian volumes in the Series, this book presents Chinese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of Chinese private international law.

The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian states (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book’s chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes). The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian states in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian states may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian state to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India's BRICS partners - Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal. Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments. The book's international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India's private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.

This book is the leading reference on Thai private international law in English. The chapters systematically cover the whole of Thai private international law including commercial matters, family law, succession, electronic commerce, intellectual property, competition (antitrust), and environmental disputes.In addition to covering the traditional conflict of law areas of jurisdiction, applicable law (choice of law) and enforcement, the chapters also look into conflict of laws questions arising in arbitration and assess Thailand’s involvement in the harmonisation of private international law globally and regionally.Similarly to the other volumes in the Studies in Private International Law - Asia series, this book presents the Thai conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.

This book is the first authoritative reference on Philippine private international law in English. It covers all facets of Philippine private international law and its inevitable intersection with family and succession issues, commercial matters, intellectual property, competition, cross-border insolvency, and environmental disputes.This book goes beyond a systematic presentation of the traditional private international law issues on jurisdiction, applicable law, and enforcement mechanisms. Employing a problem-centred approach, the chapters also look into conflict of law questions arising in arbitration, and assess the Philippines’ involvement in the harmonisation of private international law globally and regionally within ASEAN. With the Philippine legal system uniquely blending common and civil law traditions, the book presents Philippine private international law through the perspectives and analytical techniques characteristic of both traditions. In doing so, the book provides readers worldwide with a more profound and comprehensive understanding of private international law in the Philippines.

This book is the leading reference on Cambodian private international law in English. The chapters systematically cover the whole of Cambodian private international law, including commercial matters, family law, succession, intellectual property, competition (antitrust), and environmental disputes.The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law) and enforcement. They also look into conflict of law questions arising in arbitration and assess Cambodia’s involvement in the harmonisation of private international law globally and regionally within the Association of Southeast Asian Nations (ASEAN).Similarly to the other volumes in the Studies in Private International Law - Asia series, this book presents the Cambodian conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.

This is the leading reference on Taiwan’s private international law in English.The chapters systematically cover the whole of Taiwan’s private international law, including designated chapters on the law of obligations, property, family law, corporations and insolvency, together with separate chapters on international commercial arbitration and investment treaty arbitration.Taiwan’s legal framework is a hybrid civil law system that evolved from the Chinese legal tradition and the adoption of the modern Roman system, as well as increasing influences from common law jurisdictions and international law. Its unique status and prominence in international trade and investment provide unique opportunities for aligning with, and contributing to, regional and international harmonisation of private international law. Through a combination of civil law and common law approaches and perspectives, the book provides a balanced and nuanced presentation of Taiwan’s private international law that will appeal to practitioners and scholars worldwide.

This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation. With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.

This book is a one-stop reference to Hong Kong private international law.It provides clear expositions on questions of jurisdiction, choice of law, recognition and enforcement, transnational arbitration, and inter-regional and international harmonisation of Hong Kong conflict of laws. It covers a range of areas, including the law of obligations at common law and in equity, the law of real and personal property, intellectual property law, family law, company law, insolvency and bankruptcy law, competition law, and admiralty law. It includes discussions of cross-border dispute resolution, jurisdiction and choice of law clauses.The book focuses on the practical issues, emphasising the rapidly developing local jurisprudence of recent years. It also offers theoretical insights and suggestions for law reform when appropriate. Moreover, it systematically analyses conflict of laws issues arising out of inter-regional cases between Hong Kong on the one hand and Mainland China, Taiwan, and Macao on the other.The book will be indispensable to judges, practitioners, scholars, and students in Hong Kong, Greater China, Asia, and worldwide.

How do Asian courts ascertain, interpret, and apply a foreign law as the law governing the merits of the case? What should judges do if parties do not raise or disagree on the content of foreign law? This thematic volume in the Studies in Private International Law – Asia series analyses the treatment of foreign law before judicial authorities, that is, how the courts of Asian states deal with the proof of foreign law in court litigation involving cross-border elements. The individual chapters cover 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka, and India. The Introduction and Conclusion examine similarities and differences in the approaches taken by the 15 Asian states with a view to assessing the extent to which those approaches are consistent or different from each other. The book also puts forward suggestions for harmonising differing approaches, especially between Asian common law and civil law states. The book is a one-stop reference guide on the treatment of foreign law in Asia and will be indispensable to judges, practitioners, and scholars not just in Asia, but worldwide.

Covering 17 Asian jurisdictions – representing differing stages in the development of data protection regulatory systems – this book offers an in-depth, cross-jurisdictional commentary on the developing world of Asian privacy and personal data protection, with a special focus on private international law issues.It brings together an international team of contributors who reflect on the framework of data privacy and protection laws in their respective regions. Topics discussed range from the extent to which such laws may have extraterritorial effect or may conflict with the laws of other states, to shortcomings of existing systems and their potential for improvement.More than a valuable contribution to comparative private conflict of laws literature from an Asian perspective, the book also considers possible future trajectories for existing laws. It covers the extent to which Asian regimes will inevitably need to integrate with ever-evolving privacy and personal data protection initiatives in the EU, the USA and China. It also assesses the extent to which existing regimes are sufficiently robust to handle the challenges of future technical developments in data collection and data transfer across borders, especially in relation to the activities of giant corporations such as Meta (Facebook), Google, Amazon, Alibaba and Tencent.The result is a wide-ranging and forward-thinking resource, which provides practitioners and researchers with an account of data privacy law and personal data protection laws in Asia and their cross-border implications – as those regulations are now and as they might be in the future.

This book compares and explains the approaches taken by Asian courts when choice of forum clauses in international commercial contracts are challenged in litigation. It examines key common law jurisdictions (Singapore, Hong Kong and Malaysia), civil law jurisdictions (China, Japan, and Indonesia), and hybrid jurisdictions (the Philippines).With Asia’s ascent in cross-border trade and investment, alongside a corresponding increase in cross-border litigation, understanding how Asian courts address choice of forum clauses in international commercial contracts has never been more critical. Employing a comparative law method, the book identifies and explains the relief and remedies used by Asian courts in enforcing choice of forum clauses, analysing how their classification as either contractual or procedural in nature shapes judicial approaches. It further distinguishes choice of forum clauses from arbitration agreements and explores their interaction with other contractual provisions. Party autonomy – as the parties’ freedom to determine the contents of the choice of forum clause and the freedom to control the flow of litigation – is also critically scrutinised. Furthermore, the book investigates the factors courts consider in resolving key choice of forum clause issues (ie, enforceability; specific relief to be granted; existence, validity, interpretation of choice of forum clauses; role of mandatory rules, public policy, and international interests) and explores the prospects for future development of this area of law in Asia.Crucially, the book highlights the unique approaches of Asian courts, while underscoring the differences and similarities among common law, civil law, and hybrid jurisdictions.

This book compares and explains the approaches taken by Asian courts when choice of forum clauses in international commercial contracts are challenged in litigation. It examines key common law jurisdictions (Singapore, Hong Kong and Malaysia), civil law jurisdictions (China, Japan, and Indonesia), and hybrid jurisdictions (the Philippines).With Asia’s ascent in cross-border trade and investment, alongside a corresponding increase in cross-border litigation, understanding how Asian courts address choice of forum clauses in international commercial contracts has never been more critical. Employing a comparative law method, the book identifies and explains the relief and remedies used by Asian courts in enforcing choice of forum clauses, analysing how their classification as either contractual or procedural in nature shapes judicial approaches. It further distinguishes choice of forum clauses from arbitration agreements and explores their interaction with other contractual provisions. Party autonomy – as the parties’ freedom to determine the contents of the choice of forum clause and the freedom to control the flow of litigation – is also critically scrutinised. Furthermore, the book investigates the factors courts consider in resolving key choice of forum clause issues (ie, enforceability; specific relief to be granted; existence, validity, interpretation of choice of forum clauses; role of mandatory rules, public policy, and international interests) and explores the prospects for future development of this area of law in Asia.Crucially, the book highlights the unique approaches of Asian courts, while underscoring the differences and similarities among common law, civil law, and hybrid jurisdictions.

This book is the only reference in English on private international law in Uzbekistan. Dispelling a common misconception that the law of ex-USSR countries is largely the same, the book provides an authoritative account of private international law in Uzbekistan, as well as the role the country plays in the harmonisation of private international law in the region and beyond. The chapters provide authoritative guidance on conflict-of-law rules, issues of jurisdiction in contractual and non-contractual matters, as well as the practice and procedure of enforcement of foreign judgements and arbitral awards in Uzbekistan. The book is the first that systematically explores private international law in Uzbekistan and is an essential tool in understanding the peculiarities of the country and their impact on legal practice.

This open access book analyses how to identify and treat overriding mandatory rules in international commercial litigation and arbitration from a Korean and comparative law perspective. In addition to providing a deeper understanding of the concept of overriding mandatory rules and setting out standards and factors to identify such rules, the book provides a solution to the problems that third-country mandatory provisions pose in international commercial disputes.The book examines the jurisprudence of the European Court of Justice under the Rome Convention and the Rome I Regulation, Swiss IPRG, and German and English law to help interpret and propose an amendment to the Korean Act on Private International Law. The book also establishes tests to identify the overriding mandatory character and then empirically applies them to assess various provisions in 10 different Acts in Korea.Furthermore, the book provides a ‘balancing interest test’ for third-country mandatory rules and suggests a new provision that harmonises the conflicting interests of the parties, the forum country, the third country and interests of international harmony of decisions. It also explores the arbitrability of disputes in relation to overriding mandatory rules, the validity of an arbitration agreement, the extent to which overriding mandatory rules should apply, and whether the national courts can refuse enforcement of or revoke arbitral awards which did not apply/consider overriding mandatory rules.This book is an invaluable resource to legal practitioners, judges, arbitrators, researchers, and parties to international commercial contracts.Winner of the 16th Simdang Academic Prize 2023. Judge Dr Min Kyung Kim is the second-youngest recipient of this prestigious award and it is the first time that the prize has been awarded for a PhD thesis.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

This open access book analyses how to identify and treat overriding mandatory rules in international commercial litigation and arbitration from a Korean and comparative law perspective. In addition to providing a deeper understanding of the concept of overriding mandatory rules and setting out standards and factors to identify such rules, the book provides a solution to the problems that third-country mandatory provisions pose in international commercial disputes.The book examines the jurisprudence of the European Court of Justice under the Rome Convention and the Rome I Regulation, Swiss IPRG, and German and English law to help interpret and propose an amendment to the Korean Act on Private International Law. The book also establishes tests to identify the overriding mandatory character and then empirically applies them to assess various provisions in 10 different Acts in Korea.Furthermore, the book provides a ‘balancing interest test’ for third-country mandatory rules and suggests a new provision that harmonises the conflicting interests of the parties, the forum country, the third country and interests of international harmony of decisions. It also explores the arbitrability of disputes in relation to overriding mandatory rules, the validity of an arbitration agreement, the extent to which overriding mandatory rules should apply, and whether the national courts can refuse enforcement of or revoke arbitral awards which did not apply/consider overriding mandatory rules.This book is an invaluable resource to legal practitioners, judges, arbitrators, researchers, and parties to international commercial contracts.Winner of the 16th Simdang Academic Prize 2023. Judge Dr Min Kyung Kim is the second-youngest recipient of this prestigious award and it is the first time that the prize has been awarded for a PhD thesis.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

This open access book examines the conflict of law rules in East Asian states. With a focus on the laws in Mainland China, Japan and South Korea, the book also looks at the rules of Hong Kong and Taiwan.Beyond a description of the substance of the current law, the book highlights the evolution these jurisdictions have undergone since being adopters of rules developed in European and North American legal systems. As evidenced by recent modernisations in their private law regimes, these East Asian states are now innovators, creating rules that are more suited to the local concerns. Significantly, the new approaches to private international law taken by China and Japan are themselves being adopted by other jurisdictions, shifting the locus of influence in this important area of law.The chapters in Part 1 give a contextual overview of the legal regimes of Mainland China, Japan, and South Korea. This part is intended to foster a deeper understanding of how the systems are changing to better fit the particular national approaches to law. A more in-depth view of the rules on private international law follows in Part 2, where the rules of Hong Kong and Taiwan are set forth in addition to those of the rest of China, Japan and South Korea. Part 3 provides a detailed look at the conflict rules relevant to commercial law, specifically as regards international jurisdiction of courts, while Part 4 examines the rules applying to family and succession law.Written in an easily accessible style, the book is a valuable resource for scholars as well as practitioners of East Asian law, private international law, and comparative law.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

This open access book examines the conflict of law rules in East Asian states. With a focus on the laws in Mainland China, Japan and South Korea, the book also looks at the rules of Hong Kong and Taiwan.Beyond a description of the substance of the current law, the book highlights the evolution these jurisdictions have undergone since being adopters of rules developed in European and North American legal systems. As evidenced by recent modernisations in their private law regimes, these East Asian states are now innovators, creating rules that are more suited to the local concerns. Significantly, the new approaches to private international law taken by China and Japan are themselves being adopted by other jurisdictions, shifting the locus of influence in this important area of law.The chapters in Part 1 give a contextual overview of the legal regimes of Mainland China, Japan, and South Korea. This part is intended to foster a deeper understanding of how the systems are changing to better fit the particular national approaches to law. A more in-depth view of the rules on private international law follows in Part 2, where the rules of Hong Kong and Taiwan are set forth in addition to those of the rest of China, Japan and South Korea. Part 3 provides a detailed look at the conflict rules relevant to commercial law, specifically as regards international jurisdiction of courts, while Part 4 examines the rules applying to family and succession law.Written in an easily accessible style, the book is a valuable resource for scholars as well as practitioners of East Asian law, private international law, and comparative law.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

This book investigates the availability in Asian jurisdictions of civil remedies against multinational businesses for human rights abuses. Various means have been developed in Europe and elsewhere to hold businesses accountable to victims for human rights abuses. Techniques include legislating due diligence requirements for companies operating abroad, broadening court jurisdiction to include foreign companies having subsidiaries within a country, expanding international jurisdiction, promoting universal jurisdiction, and implementing international conventions and sanctions.On the 15th anniversary of the 2011 UN Guiding Principles on Business and Human Rights, the book assesses whether the norms of the UN Guiding Principles have taken root in Asia, which has only had a mixed record for upholding human rights. The book first considers the international state of play in the field. It moves on to case studies of corporate governance and human rights in Asia (especially Japan, South Korea, India, Thailand and the Philippines). It then examines emerging issues (environmental damage and climate change, crimes against humanity, and compliance programs and corporate criminal responsibility), and considers how Asia has dealt and can deal with corporate responsibility in connection with those matters. By way of conclusion, the book offers an action plan for implementing the UN Guiding Principles in Asia.