Fourth issue of 2012’s Journal du Droit International

The fourth issue of French Journal du droit international (Clunet) for 2012 was just released. It contains two articles addressing issues of private international law and several casenotes. A full table of content is accessible here.

In the first article, Walid Ben Hamida, who lectures at Evry University, discusses the application of the UNIDROIT Principles in arbitration proceedings involving states or international organizations (Les principes d’UNIDROIT et l’arbitrage transnational : L’expansion des principes d’UNIDROIT aux arbitrages opposant des États ou des organisations internationales à des personnes privées).

Originally destined to international commercial contracts, UNIDROIT principles are now experiencing a remarkable growth in transnational relationships. Due to their neutrality, universality and quality, they have been well received by the arbitrators and the parties in many arbitrations opposing private parties to States or international organizations. In this article, the author makes an inventory of the references to UNIDROIT principles in transnational arbitral jurisprudence and analyzes the reasons of their application. He analyses both traditional transnational arbitration based on classical arbitration clauses and unilateral transnational arbitration resulting from the acceptance by the private party of an offer of arbitration expressed by a State or by an international organization.

In the second article, Olivier Dubos, who is a professor of public law at the University of Bordeaux, explores the issues raised by the different interpretations of Article 33 of the Montreal Convention adopted by French and American courts (Juridictions américaines et juridictions françaises face à l’article 33 de la Convention de Montréal : un dialogue de sourds ?).

Article 33 of the Montréal Convention « for the Unification of certain rules for International Carriage by air », gives the victims of an air transport accident an « option » to bring their action for damages before different fora that the aforementioned article designates. The French Supreme Court (Cour de cassation) recently considered that this freedom of option took on an imperative character and accordingly considers that the French jurisdictions are not available if the plaintiff first chose a jurisdiction of another State (the USA in the latter case). On the other hand, for some American jurisdictions, article 33 can be combined with the theory of « ‘forum non conveniens » which allows them to refuse to adjudicate a claim grounded on the Montreal convention. However, such an interpretation of article 33 does not win unanimous support amongst American judges. The victims who, in accordance with article 33, have chosen to take their case before the American jurisdiction could find themselves in a deadlock…

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About Gilles Cuniberti

Gilles Cuniberti is a professor of law at the University of Luxembourg. Previously, he taught for 10 years at the Faculty of Law of Paris 12 University (Paris Val-de-Marne). His primary teaching and research interests are comparative law, conflict of laws, international arbitration and international litigation. He is a regular contributor to the Journal de Droit International (Clunet). He has been a visiting faculty at Duke Law School, Renmin University of China and Sheffield Hallam University. He holds a Doctorate in Law from Paris I Panthéon-Sorbonne University and an LL.M. degree from Yale Law School. He was also a Paris-Oxford Doctoral Program Scholar for a year at Trinity College, Oxford. He is admitted to the Paris Bar and practiced on a part-time basis in the Paris office of a leading English firm from 1999 to 2004. SELECTED ARTICLES: Beyond Contract - The Case for Default Arbitration in International commercial Disputes, 32 FORDHAM INT'L L.J. 417 (2009) Le principe de territorialité des voies d'exécution, JOURNAL DU DROIT INTERNATIONAL 2008.963 The Recognition of Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance and Efficiency, 57 INT’L & COMP. L. Q. 25 (2008) L’apprezzamento dell’efficacia della clausola arbitrale da parte del giudice statale : un conflitto tra Italia e Francia, 21 DIRITTO COMMERCIO INTERNAZIONALE 2007.789 (with M. Winkler) E-mail: gilles.cuniberti@conflictoflaws.net