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Books > Law > International law > Private international law & conflict of laws
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.
On the 27th of September 1968, the six EC Member States signed the
Brussels Convention on jurisdiction and the enforcement of
judgments in civil and commercial matters. 50 years later, the
European Court of Justice and the Max Planck Institute Luxembourg
organised an international conference on the major developments,
achievements and challenges of the European law of civil procedure.
This book brings together contributions written by members of the
Court of Justice of the European Union, established academics and
young researchers reflecting on the Brussels Regime. It offers
insights on the dialogue between the Court of Justice and national
courts on the interpretation of the European law of civil procedure
and how it shaped the Europeanisation of private international law.
Beyond this assessment of the past, the book offers some
reflections on the future architecture of the European law of civil
procedure and the suitability of the Brussels regime to the
challenges of the current era. This will be read with interest by
academics, practitioners and policy-makers.
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 explores the application of foreign law in civil
proceedings in the British and German courts. It focuses on how
domestic procedural law impacts on the application of choice of law
rules in domestic courts. It engages with questions involved in the
investigation and determination of foreign law as they affect the
law of England and Wales, Scotland, and Germany. Although the
relevant jurisdictions are the focus, the comparative analysis
extends to explore examples from other jurisdictions, including
relevant international and European conventions. Ambitious in
scope, it expertly tracks the development of the law and looks at
possible future reforms.
This volume collects all the relevant instruments in the field of
EU private international law (PIL) in family matters (the Brussels
II ter Regulation, the Brussels II bis Regulation, the Maintenance
Regulation, the Rome III Regulation, the Succession Regulation, the
twin Regulations on property regimes and three international
conventions: the 1980 Hague Convention on international child
abduction, the 1996 Hague Convention on measures for the protection
of children and the 2007 Hague Protocol on
maintenance).International instruments are complemented by
referencing decisions issued by the CJEU on these Regulations
(currently around 70). Decisions are not published in their
entirety, nor limited to the official operative part of the
judgments. Distinctively and importantly, each and all of the many
passages and/or obiter dicta that are disseminated through the
decisions have been considered, sorted out and reported in a
concise and clear synopsis which has been inserted as a footnote to
each relevant passage of the applicable rule or Article. This makes
the volume a succinct, yet complete and accurate, tool both for
practitioners and academics who need to keep track of the
overwhelming EU case law in PIL in family matters.
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 book provides answers to the following questions: how do
traditional principles of private international law relate to the
requirements of the internal market for the realisation of the EU's
objectives regarding the protection of weaker parties such as
consumers and employees? When and how should private international
law ensure the applicability of EU directives concerning the
protection of weaker parties? Are the EU's current private
international law, rules on conflict of laws, and private
international law approach sufficient to ensure the realisation of
its objectives regarding weaker contracting parties, or is a
different approach to private international law called for? The
book concludes with several proposed amendments, mainly regarding
the Rome I Regulation on the law applicable to contractual
obligations, as well as suggestions on the EU's current approach to
private international law. This book is primarily intended for an
academic audience and to help achieve better regulation in the
future. It also seeks to dispel certain lingering doubts regarding
the current practice of EU private international law.
This is a fresh series of concise study and revision guides for
students of law. Private International Law Essential is an
invaluable study guide for students. It provides up-to-date,
concise and comprehensive coverage of private international law and
is the ideal text for students who come new to the subject and for
those preparing for exams. This book is also an excellent resource
for those who need to refresh or update their knowledge. EU law in
this area has influenced national law to a great extent, making
this an essential area of study and of increasing importance to
lawyers throughout the EU. This book provides a summary of the key
elements and issues of PIL, as well as the statutes and Conventions
(e.g. Brussels, Lugano) and EU Regulations applying throughout the
UK. The book will also appeal to lawyers as a summary of PIL in UK
jurisdictions. The aspects most specific to Scotland cover how
jurisdiction is allocated in cases having both Scottish and other
UK characteristics and how judgments issued in one UK jurisdiction
can be recognised and enforced in another.
Launched in 1993, The Common Core of European Private law is the
oldest ongoing collective comparative law efort in Europe. Putting
cases at their heart, each book in this series analyses a selected
legal topic on the basis of real and fctional facts across diferent
European and other jurisdictions. The likely outcome of the
decision and its underlying legal rules are clearly set out case by
case and jurisdiction by jurisdiction. In addition, the national
reporters put the respective legal rules into the relevant cultural
context. In this way, the collaborative efort brings not only the
inner structures of national laws in Europe to the fore, but also
the diferent cultural sensitivities forging their development in
the frst place. It allows a reliable map of what is diferent and
what is common in the various private laws across Europe to be
drawn, without any specifc agenda for or against the further
harmonisation of private law in Europe. The series comprises more
than 20 volumes of work of more than 300 academics and is an
invaluable tool to understand private law across Europe. In this
book, which is part of the Common Core of European Private Law
series, reporters consider legal institutions - such as the
well-known acquisitive prescription and adverse possession - that
allow squatters and other persons who have occupied the private or
public land of others to acquire that land through mere long-term
use. Rules permitting such acquisition have existed since Roman
times and are said to promote legal certainty as regards ownership
of land. The reporters investigate how these rules work in their
legal systems today and whether this justifcation still holds
water, especially given that land is now registered in most
countries. Registration seems to obviate the necessity for rules
permitting acquisition of land through mere long-term use, as land
registration systems create clarity as to who owns the land. The
continued existence of these rules also comprises a human-rights
dimension. Landowners enjoy constitutional property protection
under many constitutions and other legal instruments. The loss of
protected ownership draws the constitutional validity of rules on
long-term use into question. Yet, the rights to housing and human
dignity are also relevant, especially where such users have lived
on the land for extended periods and regard it as their home or
where they are vulnerable to landlessness. As such, these rights
must be balanced against each other. The reporters represent 19
jurisdictions from all over the world, including civil law, common
law and mixed legal systems, and are from both the global north and
the global south. A comparison between these legal systems and
their experience with their rules on long-term use reveals a common
core and guidelines against which these rules may be measured in
other countries. As such, this book will be valuable to
practitioners dealing with both private and public law, academic
lawyers and government ofcials tasked with land use planning. With
contributions by Miriam Anderson (University of Barcelona), Michel
Boudot (Universite de Poitiers), Dmitry Dozhdev (Moscow School of
Social and Economic Sciences), Magdalena Habdas (University of
Silesia in Katowice), Karoline Rakneberg Haug (Norwegian
Parliamentary Ombud for Scrutiny of the Public Administration),
Bjoern Hoops (University of Groningen), Eran S. Kaplinsky
(University of Alberta), John A. Lovett (Loyola University New
Orleans College of Law), Ernst J. Marais (University of
Johannesburg), Francesco Mezzanotte (University of Roma Tre), Matti
Ilmari Niemi (University of Eastern Finland), Alasdair Peterson
(University of Glasgow), Hector Simon (University Rovira i Virgili,
Tarragona), Jozef Stefanko (University of Trnava), Johan Van de
Voorde (University of Antwerp), Filippo Valguarnera (Stockholm
University), Leon Verstappen (University of Groningen), Emma J.L.
Waring (University of York) and Una Woods (University of Limerick).
Since a reform in 2010, foreign investors can establish a
Foreign-Invested Limited Partnership Enterprise (FILPE) in China
together with Chinese or foreign investors. The FILPE can be
combined with a domestic or foreign corporate general partner, thus
allowing for a structure that offers the flexibility and taxation
conditions of a partnership while protecting its investors against
personal liability like a company. The book explores from the
perspective of a foreign investor if the FILPE is an attractive
investment vehicle by analysing whether it provides the
characteristics that are internationally recognized as constituting
a standard corporate form. Among these characteristics, the three
that are most strongly interconnected and interdependent form the
core of the analysis: legal personality, limited liability and
transferable ownership interest. These are analyzed in context of
China's restrictive framework of foreign investment regulations and
enterprise organization law.
Internal displacement has become one of the most pressing
geo-political concerns of the twenty-first century. There are
currently over 45 million internally displaced people worldwide due
to conflict, state collapse and natural disaster in such high
profile cases as Syria, Yemen and Iraq. To tackle such vast human
suffering, in the last twenty years a global United Nations regime
has emerged that seeks to replicate the long-established order of
refugee protection by applying international law and humanitarian
assistance to citizens within their own borders. This book looks at
the origins, structure and impact of this new UN regime and whether
it is fit for purpose.
This book covers the pressing issues of cross-border cases
involving admiralty and bankruptcy law. For example, what should
happen when a shipowner files an insolvency proceeding in one
country, while at the same time facing an in rem action against its
vessel in another country? Should the in rem action arising in one
country be stayed or dismissed because of the existence of
insolvency proceedings in another country? The book discusses the
relevant issues regarding the treatment of maritime creditors
throughout insolvency proceedings, the determination of the 'centre
of main interest' of an offshore shipping company, and the scope of
a debtor's assets. The author uses a comparative law analysis,
selecting four leading shipping countries - Australia, the UK, the
US, and Singapore - and examines their approaches to the above
three problems when applying the UNCITRAL Model Law regime. The
book also proposes a solution to help eliminate the ambiguity
arising from maritime cross-border insolvency cases under the
UNCITRAL Model Law regime, with a view to enhancing the development
of the shipping industry.
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).
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.
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