JPIL 15 (2019), Issue 1

Issue 1 of the Journal of Private International Law is now available. It contains the following articles:

Rhona Schuz, Choice of law in relation to matrimonial property in the 21st century, pp. 1-49

Abstract: The traditional lack of consensus in relation to the choice of law rule/s governing matrimonial property has become topical and relevant over the last few years. The European Union, concerned about the impact of the disparities between the laws of Member States in this field, in the light of increasing divorce and migration, embarked on an initiative to harmonize private international law rules in relation to matrimonial property. However, the Regulation which it produced did not command universal support. Moreover, the recent demographic changes in Europe have added a new dimension to the problem. To date, relatively little attention has been paid to the choice of law implications of migration from non-Western States, in which religious or customary law governs the economic consequences of marriage and which typically have separate property systems which discriminate against women. The mass migration into Europe from such States over the past few years makes it imperative to consider the implications of the choice of law rules in relation to matrimonial property for migrants from non-Western States.

Accordingly, in the light of these developments, there is a need to revisit critically the issues involved and the different approaches to choice of law in relation to matrimonial property in the light of modern choice of law theory. This article meets this need by analysing the extent to which the various approaches best promote central choice of law objectives. In addition, insights are gleaned from the experience of the Israeli legal system in relation to couples migrating from Islamic States. The conclusions drawn from this analysis, which are significantly different from those which informed the EU Regulation, will be of value to law and policymakers throughout the world, when facing the challenge of making decisions pertaining to choice of law in relation to matrimonial property in the twenty-first century.

Liam W. Harris, Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook, pp. 50-96

Abstract: This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.

Adeline Chong & Man Yip, Singapore as a centre for international commercial litigation: party autonomy to the fore, pp 97-129

Abstract: This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

Muyiwa Adigun, Enforcing ECOWAS judgments in Nigeria through the common law rule on the enforcement of foreign judgments, pp. 130-161

Abstract: The ECOWAS Court was established by the Revised ECOWAS Treaty. By virtue of that treaty, the Court has assumed an existence at the international plane and has delivered a number of judgments. This study therefore examines the enforcement of the judgments of the ECOWAS Court in Nigeria as a Member State. The study finds that Nigeria has not been enforcing the judgments of the Court like other Member States. The study further finds that there are five sources of international law namely: treaties, custom, general principles of law recognised by civilised nations, judicial decisions and the writings of the most qualified publicists and that while Nigerian law has addressed domestic effect of treaties and custom, that of other sources most notably the decisions of international tribunals has not been seriously addressed. The study therefore argues that the common law on the enforcement of foreign judgments can be successfully adapted to give domestic effect to the judgments of the ECOWAS Court as an international tribunal in Nigeria. The study therefore recommends that the Nigerian judiciary should take the gauntlet to make the judgments of the ECOWAS Court effective in Nigeria.

Justin Monsenepwo, Contribution of the Hague Principles on Choice of Law in International Commercial Contracts to the codification of party autonomy under OHADA Law, pp. 162-185

Abstract: The Organization for the Harmonization of Business Law in Africa (hereinafter referred to as OHADA) was created on 17 October 1993 to foster economic development in Africa by creating a uniform and secure legal framework for the conduct of business in Africa. In an effort to reform the law of contracts in its Member States, OHADA has prepared the Preliminary Draft of the Uniform Act on the Law of Obligations (hereinafter referred to as the Preliminary Draft). Several provisions of the Preliminary Draft set forth general principles concerning choice of law in international commercial contracts. Indeed, the Preliminary Draft encompasses innovative provisions on party autonomy in international contracts, such as the explicit recognition of the right of parties to choose the law applicable to their contracts and the inclusion of limited exceptions to party autonomy (overriding mandatory rules and public policy). Yet, it still needs to be improved in respect of various issues, including for instance the ability of parties to choose different laws to apply to distinct parts of their contract and the possibility for the parties to expressly include in their choice of law the private international law rules of the chosen law. This paper analyses the provisions of the Preliminary Draft in the light of the Hague Principles on Choice of Law in International Commercial Contracts (hereinafter referred to as the Hague Principles). More particularly, it explores how the Hague Principles can help refine the rules on party autonomy contained in the Preliminary Draft to enhance legal certainty and predictability in the OHADA region.

Jeanne Huang, Chinese private international law and online data protection, pp. 186-209

Abstract: This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Giorgio Risso, Product liability and protection of EU consumers: is it time for a serious reassessment? pp 210 – 233 

Abstract: The European Union (EU) has not enacted a coherent and fully-fledged product liability regime. At the substantive level, the Product Liability Directive – adopted in 1985 – is the only piece of legislation harmonising the laws of the Member States. At the private international law level, the special choice-of-laws provision in the Rome II Regulation coexists with the general rules in the Brussels I-bis Regulation. Cross-border product liability cases are therefore subject to different pieces of legislation containing either “general” or “specific” provisions. In turn, such general and specific provisions do have their own rationales which, simplistically, can be inspired by “pro-consumer”, “pro-producer”, or more “balanced” considerations, or can be completely “indifferent” to consumer protection. This article examines the interactions between the Directive, the Rome II and the Brussels I-bis Regulations in cross-border product liability cases. The aim of this article is to assess whether the piecemeal regime existing at the EU level risks undermining the protection of EU consumers. The analysis demonstrates that the regime is quite effective in guaranteeing an adequate level of consumer protection, but reforms are needed, especially to address liability claims involving non-EU manufacturers or claims otherwise connected to third States, without requiring a complete overhaul of the EU product liability regime.

Guangjian Tu, The flowing tide of parties’ freedom in private international law: party autonomy in contractual choice of law in China, pp. 234-240 (Review Article)