Private International Law Applied to Business

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Yasmine Lahlou & Marina Matousekova have written an article in the latest issue of the International Business Law Journal on "Private International Law Applied to Business" (No.4, 2006, p.547-573). The abstract states:

In the field of conflicts of laws, French courts were referred disputes relating to employment and factoring agreements. The issues of procedural agreements and court’s duty in applying foreign laws were dealt with, as well as the impact of public policy rules on insurance contracts. French courts also ruled on the issue of court’s jurisdiction as regards agency agreements and insolvency proceedings as well as on States’ jurisdictional immunities.

The Regime for the Circulation of Judgments under the EC Insolvency Regulation

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Ettore Consalvi (University of Rome) has published an article in the latest issue of International Insolvency Review on "The regime for circulation of judgements under the EC regulation on insolvency proceedings" (Vol. 15, Issue 3, 2006, p. 147-162). Here's the abstract:

The regime for recognition and enforcement of judgements under the EC Regulation 1346/00 on insolvency proceedings raises several issues due to gaps in its provisions (Chapter II). This article analyses these rules and suggests solutions to its principal shortcomings particularly focusing on the prohibition against reviewing decisions as to their merits and conflicts between judgements opening main insolvency proceedings in different member states. This analysis draws on the European Court of Justice's interpretation of the 1968 Brussels Convention in preliminary rulings, which is a valuable tool for dealing with problems concerning recognition and enforcement of judgements as the Regulation is based on a similar framework.

The full article is available on the International Insolvency Review website.

Articles on the Conflict of Laws in International Arbitration

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There are two articles in the new issue of Abitration International that deal with private international law issues arising out of international commercial arbitration. They are:

Thomas Buergenthal, “The proliferation of disputes, dispute settlement procedures and respect for the rule of law” Arbitration Int. 2006, 22(4), 495-499. Abstract:

Considers the reasons for the proliferation of disputes, particularly international disputes, and of dispute resolution mechanisms. Discusses whether respect for the rule of law has kept pace with these trends, especially with regard to conflict of laws issues and the selection of arbitrators and judges.

Klaus Peter Berger, “Evidentiary privileges: best practice standards versus/and arbitral discretion” Arbitration Int. 2006, 22(4), 501-520. Abstract:

U.S. Decisions: December 2006 Round-Up: Part II

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Again with thanks to the International Civil Litigation Blog for many of the citations below, Part II of the December 2006 round-up will discuss a few significant case developments in the fields of International Discovery and Foreign Sovereign Immunity.  More expanded discussion of these cases, and a few others pertaining to these topics, can be found at that site and other sites linked below.

INTERNATIONAL DISCOVERY

Linde v. Arab Bank, PLC, 2006 WL 3422227 (E.D.N.Y. Nov. 25, 2006).

In this case, a number of Israeli and American individuals and estates pressed actions against Arab Bank for aiding and abetting murder, conspiracy to commit murder, provision of material support to terrorists, committing and financing terrorism and other related claims.  Arab Bank claimed that bank secrecy laws in Jordan, Lebanon, and the Palestinian Monetary Authority (recognized by the United States) prevent the disclosure of certain records. At issue here is whether foreign bank secrecy laws can shield Arab Bank’s records from discovery. Violations of these laws involve criminal penalties of fines and incarceration, and plaintiffs apparently conceded that some of the information they sought in discovery would require violating the secrecy laws.

ECJ judgment on Art 34(2) of the Brussels I Regulation

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On 14 December 2006, the European Court of Justice handed down a preliminary ruling on the interpretation of Article 34(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Art 34(2) of the Brussels I Regulation, it will be remembered, provides that a judgment is not to be recognised ‘where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’. In ASML (C-283/05), after litigation in the German courts, the reference was made in the course of proceedings between ASML Netherlands BV (‘ASML’), a company established in Veldhoven (Netherlands), and Semiconductor Industry Services GmbH (‘SEMIS’), a company established in Feistritz-Drau (Austria), concerning the enforcement in Austria of a judgment given in default of appearance by the Rechtbank ’s-Hertogenbosch (Netherlands) ordering SEMIS to pay ASML the sum of EUR 219 918.60 together with interest and the costs of the proceedings. The question essentially referred to the ECJ by the Oberster Gerichtshof was (para. 15):

Natural Forum and the Elusive Significance of Jurisdiction Agreements

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Tiong Min Yeo (National University of Singapore) has posted “Natural Forum and the Elusive Significance of Jurisdiction Agreements” on SSRN. Here’s the abstract:

The Singapore court’s power to stay its proceedings by reason of its “not being the appropriate forum the proceedings ought not to be continued” is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum, i.e., the forum best suited to try the case for the interests of all the parties and the ends of justice. The approach in forum non conveniens is undisputed. A defendant who has been served with process within the jurisdiction seeking a stay of proceedings has to show that there is another available and competent forum which is clearly the more appropriate forum for the trial of the action. At this stage the court looks primarily to factors of convenience and expense and the connections of the parties and the issues in the case to determine the forum with which the action has the most real and substantial connection. If no clearly more appropriate forum is shown to exist, stay would ordinarily be refused. If there is such a forum, then the local proceedings will be stayed unless the circumstances show that the stay would deprive the plaintiff of substantial justice; the mere deprivation of the legitimate advantages of the plaintiff in having the trial in the forum is not decisive.

Warnings for a new Beginning: Singapore Choice of Law in Tort

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To complete our round-up of newly available articles today, we have an article on “Warnings for a New Beginning” by William Tong (University of Nottingham), which explores the tort choice of law rules in Singapore, and how they compare with other common law jurisdictions such as the UK. Here’s the abstract:

In striking contrast with some of the Commonwealth developments in the area of tort choice of law, where notably even the United Kingdom has abandoned the English common law position in relation to tort choice of law for a statutory regime embodied by Part III of the Private International (Miscellaneous Provisions) Act 1995, Singapore has largely maintained its adherence to the English common law position with the unequivocal acceptance by the Singapore Court of Appeal that the “applicable choice of law rule in Singapore with respect to torts committed overseas is that laid down in Phillips v. Eyre” and that the “exception to the rule as formulated in Boys v. Chaplin, Johnson v. Coventry Churchill and Red Sea Insurance” is part of Singapore law as well.

Available to download from here.

The Application of the Statute Law of Singapore within its Private Internatinal Law

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A note written By Adrian Briggs (Univeristy of Oxford) has been made available for download on the SSRN network: “A Note on the Application of the Statute Law of Singapore within Its Private International LawSingapore Journal of Legal Studies, pp. 189-203, 2005. The abstract reads:

The purpose of this Note is to raise a question on which the rules of private international law of the common law, including Singapore, are less satisfactory than they should be. It is written in the light of one part of a seminar conducted at the Singapore Academy of Law in April 2005, but the proximate cause of the investigation was an enquiry as to the application of certain aspects of Singapore’s statutory employment law in cases in which the factual and legal context contains points of contact to countries outside Singapore, or to laws other than the law of Singapore. It is presented in the form of a Note because its aim is to raise the issue as one for thought and further analysis, rather than pretending to give answers which are, in the writer’s opinion, fixed and final. In the current state of the law’s development it is not possible to claim any more for any individual analysis.

Governing Cyberspace: a US Approach

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A highly theoretical, and interesting, article on the rules governing e-commerce transactions (or “cyberspace”, as the author puts it) has been posted on SSRN. David G. Post’s article, “Governing Cyberspace“, was originally in the Wayne Law Review, Vol. 43, p. 155, 1996. Here’s the abstract:

Some English Articles in December

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There have been a couple of articles in various journals concerning the conflict of laws this month. Without further ado, they are:

1) E.C. Ritaine, "Harmonising European Private International Law: A Replay of Hannibal's Crossing of the Alps?" International Journal of Legal Information, Vol. 34, No. 2, (2006) pp. 419-439.

2) Nikiforos Sifakis, "Exclusive jurisdiction clauses – Article 27 and 28 of the Brussels I Regulation – the ‘Italian torpedo’ – anti-suit injunctions" Journal of International Maritime Law, Issue 5, Vol. 12, (2006).

3) There's also a forthcoming article in the International Company and Commercial Law Review: P.J. Omar, "The extra-territorial reach of the European Insolvency Regulation" I.C.C.L.R. 2007, 18(2), 57-66. There's an abstract available for this article:

Assesses the extent to which the provisions of Council Regulation 1346/2000 may conflict with those of the UNCITRAL Model Law on Cross Border Insolvency 1997 in the event of an international insolvency which crosses EC borders and how priorities might be determined by EC courts in such circumstances. Reviews the limits of the Regulation's application and case law on its potential effect on non EC debtors bound by the Model Law, including the circumstances in which a company incorporated elsewhere may be deemed to have its centre of main interests within the EC. Considers the international relevance of the Regulation and the position of groups of companies with some non EC members.

Merry Christmas and Happy Holidays to you all.