Choice of Law in the American Courts in 2021: Thirty-Fifth Annual Survey

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The 35th Annual Survey of Choice of Law in the American Courts (2021) has been posted to SSRN. The authors of this year’s survey owe an enormous debt to Symeon Symeonides who has, over the past three decades, provided an extraordinary service by authoring the previous thirty annual surveys. Having now finished our first survey, we are all the more impressed with his work. Thank you Symeon — and thank you all for reading.

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

Giustizia consensuale No 2/2021: Abstracts

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The second issue of 2021 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released and it features:

Silvia Barona Vilar (Professor at the University of València) Sfide e pericoli delle ADR nella società digitale e algoritmica del secolo XXI (Challenges and Pitfalls of ADR in the Digital and Algorithmic Society of the XXI Century; in Italian)

In the XX century, dispute resolution was characterized by the leading role played by State courts: however, this situation has begun to change. With modernity and globalization has come the search of ways to ensure the ‘deconflictualisation’ of social and economic relations and solve conflicts arising out of them. In this context, ADR – and now ODR – have had a decisive impulse in the last decades and are now enshrined in the digital society of the XXI century. ADR mechanisms are, in fact, approached as means to ensure access to justice, favouring at the same time social peace and citizens’ satisfaction. Nevertheless, some uncertainties remain and may affect ADR’s impulse and future consolidation: among such uncertainties are the to-date scarce negotiation culture for conflict resolution, the need for training in negotiation tools, the need for State involvement in these new scenarios, as well as the attentive look at artificial intelligence, both in its ‘soft’ version (welfare) and its ‘hard’ version (replacement of human beings with machine intelligence).

Amy J. Schmitz (Professor at the Ohio State University), Lola Akin Ojelabi (Associate Professor at La Trobe University, Melbourne) and John Zeleznikow (Professor at La Trobe University, Melbourne), Researching Online Dispute Resolution to Expand Access to Justice

In this paper, the authors argue that Online Dispute Resolution (ODR) may expand Access to Justice (A2J) if properly designed, implemented, and continually improved. The article sets the stage for this argument by providing background on ODR research, as well as theory, to date. However, the authors note how the empirical research has been lacking and argue for more robust and expansion of studies. Moreover, they propose that research must include consideration of culture, as well as measures to address the needs of self-represented litigants and the most vulnerable. It is one thing to argue that ODR should be accessible, appropriate, equitable, efficient, and effective. However, ongoing research is necessary to ensure that these ideals remain core to ODR design and implementation.

Marco Gradi (Associate Professor at the University of Messina), Teoria dell’accertamento consensuale: storia di un’incomprensione (The Doctrine of ‘Negotiation of Ascertainment’: Story of a Misunderstanding; in Italian)

This article examines the Italian doctrine of ‘negotiation of ascertainment’ (negozio di accertamento), by means of which the parties put an end to a legal dispute by determining the content of their relationship by mutual consent. Notably, by characterizing legal ascertainment as a binding judgment vis-à-vis the parties’ pre-existing legal relationship, the author contributes to overcoming the misunderstandings that have always denoted the debate in legal scholarship, thus laying down the foundations towards a complete theory on consensual ascertainment.

Cristina M. Mariottini (Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law), The Singapore Convention on International Mediated Settlement Agreements: A New Status for Party Autonomy in the Non-Adjudicative Process

The United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’), adopted in 2018 and entered into force in 2020, is designed to facilitate cross-border trade and commerce, in particular by enabling disputing parties to enforce and invoke settlement agreements in the cross-border setting without going through the cumbersome and potentially uncertain conversion of the settlement into a court judgment or an arbitral award. Against this background, the Convention frames a new status for mediated settlements: namely, on the one hand it converts agreements that would otherwise amount to a private contractual act into an instrument eligible for cross-border circulation in Contracting States and, on the other hand, it sets up an international, legally binding and partly harmonized system for such circulation. After providing an overview of the defining features of this new international treaty, this article contextualizes the Singapore Convention in the realm of international consent-based dispute resolution mechanisms.

 

Observatory on Legislation and Regulations

Ivan Cardillo (Senior Lecturer at the Zhongnan University of Economics and Law in Wuhan), Recenti sviluppi della mediazione in Cina (Recent developments in mediation in China; in Italian)

This article examines the most recent developments on mediation in China. The analysis revolves around, in particular, two prominent documents: namely, the ‘14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives for 2035’ and the ‘Guiding Opinions of the Supreme People’s Court on Accelerating Steps to Motivate the Mediation Platforms of the People’s Courts to Enter Villages, Residential Communities and Community Grids.’ In particular, the so-called ‘Fengqiao experience’ ? which developed as of the 1960s in the Fengqiao community and has become a model of proximity justice ? remains the benchmark practice for the development of a model based on the three principles of self-government, government by law, and government by virtue. In this framework, mediation is increasingly identified as the main echanism for dispute resolution and social management: in this respect, the increasing use of technology proves to be crucial for the development of mediation platforms and the efficiency of the entire judicial system. Against this background, the complex relationship becomes apparent between popular and judicial mediation, their coordination and their importance for governance and social stability: arguably, such a relationship will carry with it in the future the need to balance the swift dispute resolution with the protection of fundamental rights.

Angela D’Errico (Fellow at the University of Macerata), Le Alternative Dispute Resolution nelle controversie pubblicistiche: verso una minore indisponibilità degli interessi legittimi? (Alternative Dispute Resolution in Public Sector Disputes: Towards an Abridged Non-Availability of Legitimate Interests?; in Italian)

This work analyzes the theme of ADR in publicity disputes and, in particular, it’s understood to deepen the concepts of the availability of administrative power and legitimate interests that hinder the current applicability of ADRs in public matters. After having taken into consideration the different types of ADR in the Italian legal system with related peculiarities and criticalities, it’s understood, in the final part of the work, to propose a new opening to the recognition of these alternative instruments to litigation for a better optimization of justice.

 

Observatory on Jurisprudence

Domenico Dalfino (Professor at the University ‘Aldo Moro’ in Bari), Mediazione e opposizione a decreto ingiuntivo, tra vizi di fondo e ipocrisia del legislatore (Mediation and Opposition to an Injunction: Between Underlying Flaws and Hypocrisy of the Legislator; in Italian)

In 2020, the plenary session of the Italian Court of Cassation, deciding a question of particular significance, ruled that the burden of initiating the mandatory mediation procedure in proceedings opposing an injunction lies with the creditor. This principle sheds the light on further pending questions surrounding mandatory mediation.

 

Observatory on Practices

Andrea Marighetto (Visiting Lecturer at the Federal University of Rio Grande do Sul) and Luca Dal Pubel (Lecturer at the San Diego State University), Consumer Protection and Online Dispute Resolution in Brazil

With the advent of the 4th Industrial Revolution (4IR), Information and Communication Technology (ICT) including the internet, computers, digital technology, and electronic services have become absolute protagonists of our lives, without which even the exercise of basic rights can be harmed. The Covid-19 pandemic has increased and further emphasized the demand to boost the use of ICT to ensure access to basic services including access to justice. Specifically, at a time when consumer relations represent the majority of mass legal relations, the demand for a system of speedy access to justice has become necessary. Since the early ’90s, Brazil has been at the forefront of consumer protection. In the last decade, it has taken additional steps to enhance consumer protection by adopting Consumidor.gov, a public Online Dispute Resolution (ODR) platform for consumer disputes. This article looks at consumer protection in Brazil in the context of the 4IR and examines the role that ODR and specifically the Consumidor.gov platform play in improving consumer protection and providing consumers with an additional instrument to access justice.

In addition to the foregoing, this issue features the following book review by Maria Rosaria Ferrarese (Professor at the University of Cagliari): Antoine Garapon and Jean Lassègue, Giustizia digitale. Determinismo tecnologico e libertà (Italian version, edited by M.R. Ferrarese), Bologna, Il Mulino, 2021, 1-264.

Out now: Zeitschrift für vergleichende Rechtswissenschaft (ZVglRWiss) 120 (2021) No. 4

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The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

 

Jürgen Samtleben: Internationales Privatrecht in Guatemala

Guatemala’s rules on private international law of Guatemala are found in the Law of Judicial Organization of 1989. But conflict-of-law questions are also regulated in other laws. All these legislative texts are based on older laws, since Guatemala has a rich legal tradition on this subject. It is only against the background of this tradition that one can understand the meaning of the laws actually in force. The article discusses the different aspects of Guatemalan private international law, which today is generally based on the principle of domicile. The law of 1989 introduces two innovations which are worth emphasizing: the application of foreign law ex officio and the principle of party autonomy for international contracts.

 

Christoph Wendelstein: Eigenes und Fremdes im Kollisionsrecht

The article sheds light on the relationship between the conflict of laws and the substantive laws (potentially) called upon to apply. In doing so, the question is addressed whether the substantive law influences the conflict of laws. The focus is on the question of characterisation, which traditionally represents a kind of crystallization point between conflict of laws and substantive law. If the conflict of laws rules apply to foreign substantive law, the question may arise as to whether this completely displaces the own domestic substantive law or whether it is still relevant in some way. This refers to the ordre public and the overriding mandatory provisions (Eingriffsnormen), which are also object of the study. The focus lies on their functioning.

 

Jean Mohamed: Die aktienrechtliche actio pro socio im globalen Kontext – Zur Abgrenzung von materiellem Recht und Verfahrensrecht im anglo-amerikanischen Rechtskreis am Beispiel der derivative action in New York

The German procedure for the admission of corporate claims (derivative claims), a special institution based on stock corporation law for the so-called actio pro socio, has taken a long journey all the way to New York at present. In keeping with the verse by Frank Sinatra: “If I can make it here, I’ll make it anywhere”, the subject is whether an international movement of the shareholder action – i. e. claims of the corporation asserted in the shareholder’s own name – may be imminent. In the New York proceeding Zahava Rosenfeld, derivatively as a shareholder of Deutsche Bank AG and on behalf of Deutsche Bank AG v. Paul Achleitner et al., the conflict of laws matches the German system known in § 148 of the German Stock Corporation Act with the New York’s (and the US) concept of the related derivative suit, also known as derivative action or derivative claim. Given the potential risks involved, it seems highly relevant from a legal, academic, and political point of view to discuss and model this quite complex but so far barely studied issue. In the following, the global procedural rules of derivative actions will therefore be discussed.

 

David B. Adler: Extraterritoriale US-Discovery für Schieds- und Gerichtsverfahren im Ausland

For decades, 28 U.S.C. § 1782(a) has offered a powerful tool for parties to obtain discovery through U.S. courts for use in foreign proceedings. Referring to the statute’s twin goals to provide “efficient assistance to participants in international litigation and encourag[e] foreign countries by example to provide similar assistance to our courts”, U.S. courts have time and again demonstrated that they are willing to readily grant respective discovery requests from foreign applicants. While the U.S. Supreme Court has answered various questions regarding the applicability and scope of § 1782(a) in its Intel Corp. v. Advanced Micro Devices, Inc. decision, two key issues remained undecided. The first issue U.S. courts have been grappling with, and which has been an ongoing topic of interest among international arbitration practitioners and scholars for several decades, is whether the statute allows parties of foreign private arbitration proceedings to seek discovery via § 1782(a), or if § 1782(a) is limited to parties that seek support for a foreign court or administrative proceedings. The second issue concerns the extraterritorial reach of § 1782(a). Courts have issued diverging rulings on whether Section 1782 allows an applicant to seek the production of documents that are located outside the U.S. and on whether § 1782(a) contains a per se bar to its extraterritorial application. This article analyzes the recent appellate decisions of the United States Court of Appeals for the Second, Fourth and Sixth Circuit – which are the first appellate rulings since Intel to weigh in on these issues in detail. This article further discusses whether there should be a per se bar to the extraterritorial application of Section 1782 and explains the broad implications that the recent appellate courts’ decisions on both issues have for foreign litigants and entities that are subject to the United States’ jurisdiction.

Nudging in Private International Law: The Design of Connecting Factors in Light of Behavioural Economics

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Dr Johannes Ungerer (Lecturer, University of Oxford)

Cross-border disputes are particularly complex due to the challenges involved in understanding and deciding on the applicable law and international jurisdiction. Contrary to this reality, it is commonly assumed that all private parties are capable of rational choices in pursuit of efficiency, which however disregards the fact that humans are not always guided by rationality but can be affected by psychological biases. Acknowledging ‘bounded rationality’ in cross-border cases calls for reconsidering the way private international law determines which law shall apply and which court may hear the case. In particular, it requires analysing connecting factors from this new perspective, thus appreciating the significance of how bounded rationality affects private parties in choosing a law or court or abstaining from choice.

In an English paper published in RabelsZ volume 1/2022 of mine, such a new approach is pursued based on the insights of behavioural economics, which have been neglected in private international law to date. Looking at the existing EU instruments, the paper investigates how the connecting factors of the Rome and Brussels Regulations are designed to ‘nudge’ private parties towards a particular jurisdiction, both with regard to subjective and objective connecting factors. Special consideration is given to the requirements of nudging to justify its libertarian paternalism. Particularly illustrative is the application of behavioural insights to the paradigmatic area of consumer protection.

The paper finds that, amending the traditional economic analysis and its assumption of rational decision-making in pursuit of efficiency, behavioural economics contributes a more realistic understanding of private international law and its connecting factors. Objective connecting factors in the Rome and Brussels Regulations, such as the habitual residence or domicile of a particular party to the case in addition to more specific factors, are relied upon in the absence of a valid choice of law or court by the parties. These objective connecting factors can be understood as the lawmaker’s nudges towards a predetermined jurisdiction for the benefit of the parties, and not merely for the sake of individual efficiency. Behavioural economics appreciates that objective connecting factors are majoritarian default rules, but unlike the traditional economic understanding of this term and its hypothetical consensus explanation, the new perspective can openly acknowledge that default rules are set by the lawmaker, who is legitimised by the majority, as a form of libertarian paternalism. Yet, because of their characteristic as a safety net, which still allows the parties to make deviating arrangements, the objective connecting factors are defaults which serve as both choice-preserving and debiasing decisions without being coercive.

Subjective connecting factors, which enable and regulate party autonomy with regard to choice of law and court, are to be conceived as choice architecture from the perspective of behavioural economics. This understanding is to be preferred to previous explanations which draw on a naturalist or positivist reasoning in analogy to substantive private autonomy or which solely proclaim individualist freedom striving for efficiency. By ensuring a choice-preserving design which complements the default rules, the lawmaker can be understood to pursue nudging by providing for a suitable and legitimised choice architecture that steers the choice of law and court. From this perspective, the regulation and limitations of party autonomy are to be seen as measures of libertarian paternalism which intend to protect private parties from their own fallibility and from exploitation by others when making choices.

In response to existing criticism against nudging as a form of libertarian paternalism, the requirements of transparency and a choice-preserving design have proved particularly important. They are met by providing for specific and general defaults (sector-specific and residual objective connecting factors) alongside a choice architecture with clear validity

EAPIL founding conference: Aarhus, 2-4 June 2022

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As many our readers know the first conference of the European Association of Private International Law (EAPIL), established in late 2019, had to be rescheduled (twice) due to the Corona pandemic. It will now (hopefully) take place from 2-4 June 2022 at the University of Aarhus (Denmark).

The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing. For more information please visit the conference website.

Registration is possible here. For questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

For more information about EAPIL (including about how to join and how to get involved) please visit the Association’s website at https://eapil.org.

Call for Abstracts: Climate Change and International Economic Law

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The editors of the European Yearbook for International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the focus section of the EYIEL 2022. This year’s focus will be on the impact of climate change on international economic law.

Abstracts may cover any topic relating to dispute settlement in the field of international economic law, though preference is given to topics focusing on the perspective from public and private international or EU law. We particularly welcome contributions addressing the following aspects:

  • Climate change in WTO and international trade law
  • Impact of investment protection treaties on energy transformation
  • Reform of the Energy Charter Treaty
  • Financial and monetary law aspects of climate change
  • Relationship between UNFCCC and Glasgow Climate Pact and international economic law
  • Climate change litigation in domestic and international courts
  • Liability for climate change in private (international) law
  • …

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts may be submitted until 28 February 2022 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified by 1 April 2022 that their proposal has been accepted. They are expected to send in their final contribution by 30 June 2021.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

RabelsZ: New issue alert

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Issue 1/2022 of RabelsZ is out. It contains the following articles (including three open-access articles focusing on “Decolonial Comparative Law”):

Johannes Ungerer: Nudging in Private International Law. The Design of Connecting Factors in Light of Behavioural Economics, Volume 86 (2022) / Issue 1, pp. 1–31, DOI: 10.1628/rabelsz-2022-0002.

Amending the traditional economic analysis of law and its assumption of rationality, this paper suggests that behavioural economics can inform a more realistic understanding of private international law, which has been missing to date. Acknowledging the psychological biases which private parties are facing when dealing with complex cross-border cases, the paper introduces a new perspective on the design of connecting factors in EU private international law which are to be conceived as nudges that steer the applicable law and international jurisdiction to counteract bounded rationality. Objective connecting factors can be perceived as default rules, whereas the framework for exercising party autonomy can be construed as choice architecture of subjective connecting factors. Revealing the underlying libertarian paternalism of connecting factors requires addressing existing concerns about nudging, which is insightful for establishing the requirements of a transparent and choice-preserving design. Behavioural economics prove to be particularly suitable for explaining the restriction of choice and other connecting factor modifications for consumer protection in private international law.

 Johanna Croon-Gestefeld: Der Einfluss der Unionsbürgerschaft auf das Internationale Familienrecht, Volume 86 (2022) / Issue 1, pp. 32–64, DOI: 10.1628/rabelsz-2022-0003

The Influence of EU Citizenship on International Family Law. – European Union citizenship is a multifaceted concept. It vests a formal status in the citizens of member states and grants them individual rights. In addition, it symbolically affirms the ideal of integration. The different facets of EU citizenship are mirrored in the various ways in which the concept influences international family law. First, the rights connected to the status of EU citizenship shape the outcome of international family law cases. Second, art. 21 para. 2 TFEU bestows a competence on EU legislators to harmonize international family law. Third, EU citizenship is invoked to support the ideal of mobile citizens roaming freely within the EU, an ideal which for its part legitimizes habitual residence as a central connecting factor in EU international family law regulations.

 Jochen Hoffmann, Simon Horn: Die Neuordnung des internationalen Personengesellschaftsrechts, Volume 86 (2022) / Issue 1, pp. 65–90, DOI: 10.1628/rabelsz-2022-0004

Reshaping Germany’s Private International Law on Partnerships. – The recent German act on the modernization of partnership law (MoPeG) reforms not only the substantive law but also the determination of connecting factors for conflict-of-law purposes. A newly created provision introducing a “registered seat” in § 706 of the German Civil Code (BGB) is relevant to conflict-of-law considerations as it abandons the “real seat” as a connecting factor for registered partnerships. Since the law applicable to a partnership now depends on the partnership’s place of registration, substantive provisions such as the prohibition of voluntary deregistration (§ 707a BGB para. 4) will now have a considerable impact on questions of private international law. Conversely, those interpreting the substantive law must take conflict-of-law issues into account, especially to avoid unintentionally changing the law to which an entity will be subject. Moreover, the eligibility of the registered partnership (eGbR) for domestic conversions, mergers, and divisions considerably expands the range of possibilities for cross-border transactions of that kind.

Francesco Giglio: Roman dominium and the Common-Law Concept of Ownership, Volume 86 (2022) / Issue 1, pp. 91–118, DOI: 10.1628/rabelsz-2022-0005

On the basis of a comparison between common law and Roman law, it is argued in this paper that, despite the common-law focus on title, the common-law and civil-law concepts of ownership are not as far apart as often thought. Title and ownership right are not logically incompatible, and the common law has room for both: ownership is a substantive right; title is an operative, procedural tool that supplies the essential dynamism to the static right of ownership. Nor are relative and absolute ownership systemically incompatible in the civil law, as evidenced by Roman law. A study of the works of Blackstone, Austin and Honoré – three influential authors with expertise in Roman law – suggests that Roman law provides helpful elements for a comparison with the common law, but only if it is used to understand the common law, as opposed to forcing inadequate structures upon it. Austin’s and Honoré’s attempts to read common-law ownership through the lenses of Roman law offer two instances of the risks linked to such an approach.

 Jing Zhang: Functional Reform of the Chinese Law of Secured Transactions in Movables from a Comparative Perspective, Volume 86 (2022) / Issue 1, pp. 119–165, DOI: 10.1628/rabelsz-2022-0006

 The Chinese law of secured transactions concerning movables was reformed through a partial implementation of a functional approach. But by mixing formalism and functionalism, this functional reform, carried out first by the legislature through a codification and then by the Supreme People’s Court through a judicial interpretation, leads to a modular system with links between the various modules. Different modules are linked in the sense that the rules concerning property rights of security are extended to title-based security devices through the making of several “connection points”. After introducing the old law, this article focuses on issues of publicity, priority and enforcement under the new law. The functional reform establishes a unified notice-filing register for movables, which is accompanied by several specialist registers. Moreover, it provides a set of predictable priority rules that dispense with the factor of good faith in most circumstances. It also provides a flexible but complicated and somewhat uncertain system of enforcement and remedies for reservations of ownership and financial leases. In general, the new law is more modern and internationally oriented than the old law, but it still lacks systematic completeness and coherence and needs to be improved.

 

Focus: Decolonial Comparative Law

Lena Salaymeh, Ralf Michaels: Decolonial Comparative Law: A Conceptual Beginning, Volume 86 (2022) / Issue 1, pp. 166–188, DOI: 10.1628/rabelsz-2022-0007

 This article introduces the intellectual motivations behind the establishment of the Decolonial Comparative Law research project. Beginning with an overview of the discipline of comparative law, we identify several methodological impasses that have not been resolved by previous critical approaches. We then introduce decolonial theory, generally, and decolonial legal studies, specifically, and argue for a decolonial approach to comparative law. We explain that decoloniality’s emphasis on delinking from coloniality and on recognizing pluriversality can improve on some problematic and embedded assumptions in mainstream comparative law. We also provide an outline of a conceptual beginning for decolonial approaches to comparative law.

 Emile Zitzke: Decolonial Comparative Law: Thoughts from South Africa, Volume 86 (2022) / Issue 1, pp. 189–225, DOI: 10.1628/rabelsz-2022-0008

In this article, I problematise a popular approach to comparative law in South Africa that invariably seeks answers to legal problems in European law. This approach could potentially have neo-colonial effects. I propose that one version of a decolonial approach to comparative law could involve comparing South Africa’s European legal tradition (today called the South African common law) and its African legal tradition (today called the South African customary law). Utilising postcolonial, decolonial, and legal-pluralism theory, coupled with recent developments in the South African law of delict (torts), I suggest that the common/customary law interface ought to involve acts of both resistance and activism. There ought to be a resistance to the paradigms of “separatism”, “mimicry”, and “universality”. Simultaneously, there ought to be an embrace of “actively subversive hybridity”, “pluri-versality” and “delinking”. I contend that it is in this matrix of resistance and activism where at least one version of decolonial comparative law might be found.

Roger Merino: Constitution-Making in the Andes – A Decolonial Approach to Comparative Constitutional Change, Volume 86 (2022) / Issue 1, pp. 226–253, DOI: 10.1628/rabelsz-2022-0009

 How might the field of comparative constitutional change account for constitution- making processes and outcomes forged by historically subordinated and racialized social movements? Inspired by critical comparative approaches to constitutional change and engaging decolonial theory, this article explores how in the Andes of South America the “colonial question” shaped constitution-making struggles and was the rationale behind the enactment of the new plurinational constitutions of Bolivia (2009) and Ecuador (2008). This study focuses on the political aspirations of subaltern actors that have promoted constitutional changes in these settings and localizes their struggles and the historical and social context of continuous colonial grievances. Thus, the article provides a deeper understanding of the process of constitution-making in the Andes and reveals the colonial patterns that persist in current frameworks, such as the constitutional provisions that legitimate and perpetuate extractivism.

 

 

Mexican Journal of Private International and Comparative Law – issue No 46 is out

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The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 46 of the Revista Mexicana de Derecho Internacional Privado y Comparado (Mexican Journal of Private International and Comparative Law).  It is available here.

Click here to access the Journal page.

A call for papers has been issued for the next number, whose theme will be “Matrimonio poliamoroso en el Derecho internacional privado”. Contributions must be sent before 25 February 2022 to the following email address: < graham@jamesgraham.legal >. For more information, see the last page of the current issue.

Below is the table of contents of No 46:

ÍNDICE

LA VOZ DEL COMITÉ EDITORIAL

DOCTRINA

LA EVOLUCIÓN DEL DERECHO INTERNACIONAL PRIVADO EN NICARAGUA / Jürgen Samtleben

BRIEF REMARKS ON THE INTERPRETATION OF DOMESTIC CRIMINAL LAW IN INVESTMENT ARBITRATION / Fausto Pocar     

LA CONTRATACIÓN INTERNACIONAL EN EL DIPR / Leonel Pereznieto Castro

AUTONOMÍA DE LA VOLUNTAD Y LEX IMPERATIVA / Symeon C. Symeonides – traducción al español / Spanish translation      

TRYING TO SQUARE THE CIRCLE: COMPARATIVE REMARKS ON THE RIGHTS OF THE SURVIVING SPOUSE ON INTESTACY / Jan Peter Schmidt

CHILE, PROPUESTAS DE CAMBIO EN SUS NORMAS EN DERECHO APLICABLE A LOS CONTRATOS INTERNACIONALES / Jaime Gallegos Zúñiga              

LA EXCEPCIÓN DE GRAVE RIESGO PARA LA SALUD POR COVID 19 EN LA SUSTRACCIÓN INTERNACIONAL DE MENORES / Ana Fernández Pérez

JURISPRUDENCIA

RECUSACIÓN DE UN ÁRBITRO

BIENVENIDO A DOS TESIS, UNA JURISPRUDENCIAL, SOBRE EL DERECHO INTERNACIONAL Y EL DERECHO INTERNO / Leonel Pereznieto Castro

EL RECONOCIMIENTO EN LOS TRIBUNALES DE LOS ESTADOS UNIDOS DE LAS SENTENCIAS DICTADAS POR LOS TRIBUNALES MEXICANOS / Richard B. Perrenot  – Traducción: Jorge Alberto Silva y José C. Suarez Arias

RESEÑAS

La convention d’arbitrage dans les nouvelles puissances économiques

(Bruselas, Bruylant, 2021, 890 pp.)

Texto y Contexto. Ley General de Derecho Internacional Privado N.º 19.920

(Uruguay, FCU, 2021, 280 pp.)

DOCUMENTOS  

CONTRATOS ENTRE COMERCIANTES CON PARTE CONTRACTUALMENTE DÉBIL (PROPUESTA AL COMITÉ JURÍDICO INTERAMERICANO)

(presentado por la doctora Cecilia Fresnedo de Aguirre)

 

Virtual Workshop (in German) on February 1: Wolfgang Wurmnest on International Jurisdiction for Antitrust Violation Claims

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On Tuesday, Feb 1, 2022, the Hamburg Max Planck Institute will host its  monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Wolfgang Wurmnest (University Hamburg) will speak, in German, about the topic.

International Jurisdiction for Antitrust Violation Claims

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Third Issue of Journal of Private International Law for 2021

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The third issue of the Journal of Private International law for 2021 was released today. It features the following articles:

Jonannes Ungerer, “Explicit legislative characterisation of overriding mandatory provisions in EU Directives: Seeking for but struggling to achieve legal certainty”

Traditionally, the judiciary has been tasked with characterising a provision in EU secondary law as an overriding mandatory provision (“OMP”) in the sense of Art 9(1) Rome I Regulation. This paradigm has however shifted recently as the legislator has started setting out such OMP characterisation explicitly, which this paper addresses with regard to EU Directives. The analysis of two Directives on unfair trading practices in the food supply chain and on the resolution of financial institutions reveals that their explicit legislative characterisations of OMPs can benefit legal certainty if properly drafted by the EU and correctly transposed into national law by the Member States. These requirements have not yet been fully met as there are inconsistencies and confusion with only domestically mandatory provisions, which need to be resolved. More generally, the paper elucidates the tensions of competence between legislators and courts on both the EU and national levels due to the explicit legislative characterisation. It also considers the side effects on pre-existing and future provisions in Directives without explicit legislative characterisation. Finally, it acknowledges that the extraterritorial effect of OMPs is intensified and therefore requires the legislator to seek international alignment.

 

Patrick Ostendorf, “The choice of foreign law in (predominantly) domestic contracts and the controversial quest for a genuine international element: potential for future judicial conflicts between the UK and the EU?”

The valid choice of a (foreign) governing law in commercial contracts presupposes, pursuant to EU private international law, a genuine international element to the transaction in question. Given that the underlying rationale of this requirement stipulated in Article 3(3) of the Rome I Regulation has yet to be fully explored, the normative foundations as to the properties that a genuine international element must possess remain unsettled. The particularly low threshold applied by more recent English case law in favour of almost unfettered party autonomy in choice of law at first glance avoids legal uncertainty. However, such a liberal interpretation not only robs Article 3(3) Rome I Regulation almost entirely of its meaning but also appears to be rooted in a basic misunderstanding of both the function and rationale of Article 3(3) Rome I Regulation in the overall system of EU private international law. Consequently, legal tensions with courts based in EU member states maintaining a more restrictive approach may become inevitable in the future due to Brexit.

 

Darius Chan & Jim Yang Teo, “Re-formulating the test for ascertaining the proper law of an arbitration agreement: a comparative common law analysis”

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court’s determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law’s traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike.

 

Amin Dawwas, “Dépeçage of contract in choice of law: Hague Principles and Arab laws compared”

This paper discusses the extent to which the parties may use their freedom to choose the law governing their contract under the Hague Principles on Choice of Law in International Commercial Contracts and Arab laws, namely whether they can make a partial or multiple choice of laws. While this question is straightforwardly answered in the affirmative by the Hague Principles, it is debatable under (most) Arab laws. After discussion of the definition of dépeçage of contract, this paper presents the provisions of dépeçage of contract under comparative and international law, including the Hague Principles, and then under Arab laws. It concludes that Arab conflict of laws rules concerning contract should be reformed according to the best practices embodied in this regard by the Hague Principles.

 

Jan Ciaptacz, “Actio pauliana under the Brussels Ia Regulation – a challenge for principles, objectives and policies of EU private international law”

The paper discusses international jurisdiction in cases based on actio pauliana under the Brussels Ia Regulation, especially with regard to the principles, objectives and policies of EU private international law. It concentrates on the assessment of various heads of jurisdiction that could possibly apply to actio pauliana. To that end, the CJEU case law was thoroughly analysed alongside international legal scholarship. As to the jurisdictional characterisation of actio pauliana, the primary role should be assigned to teleological and systematic considerations. Actio pauliana can neither be characterised as an issue relating to torts nor as a right in rem in immovable property. Contrary to the recent position adopted by the CJEU, it should also be deemed not to fall within matters relating to a contract. The characterisation of actio pauliana as a provisional measure or an enforcement mechanism for jurisdictional purposes is equally incorrect.

 

Harry Stratton, “Against renvoi in commercial law”

The doctrine of renvoi is rightly described as “a subject loved by academics, hated by students and ignored (when noticed) by practising lawyers (including judges)”. This article argues that the students have much the better of the argument. English commercial law has rightly rejected renvoi as a general rule, because it multiplies the expense and complexity of proceedings, while doing little to deter forum-shopping and enable enforcement. It should go even further to reject renvoi in questions of immovable property, because the special justification that this enables enforcement of English judgments against foreign land ignores the fact that title or possession of such land is generally not justiciable in English courts and such judgments will not be enforced irrespective of whether renvoi is applied.

 

Yun Zhao, “The Singapore mediation convention: A version of the New York convention for mediation?”

Settlement agreements have traditionally been enforced as binding contracts under national rules, a situation considered less than ideal for the promotion of mediation. Drawing on the experience of the 1958 New York Convention on international arbitration, the 2019 Singapore Mediation Convention provides for the enforcement of settlement agreements in international commercial disputes. Based on its provisions and the characteristics and procedures of mediation, this article discusses the impact of the Singapore Mediation Convention on the promotion of mediation and its acceptance by the international community. It is argued that the achievements of the New York Convention do not necessarily promise the same success for the Singapore Mediation Convention.

 

Jakub Pawliczak, “Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation”

In recent years a significant increase in applications sent to Polish institutions to obtain the return of abducted children under the 1980 Hague Abduction Convention can be observed. Simultaneously, Poland has struggled with a problem of excessively long court proceedings in those cases and the lack of specialisation among family judges. Taking these difficulties into consideration, in 2018 the Polish Parliament introduced a reform aimed at improving the effectiveness of the court proceedings for the return of abducted children. The work on the amendment of the Polish legal regulations was carried out in parallel to the EU legislative process in the field of international child abduction. Although the Polish reform had been introduced before Council Regulation (EU) 2019/1111 of 25 June 2019 (Brussels IIb) was adopted, the 2016 proposal for this Regulation had been known to the national legislature. When discussing the amended Polish legal regulations, it should be considered whether they meet their goals and whether they are in line with the new EU law.

 

Elaine O’Callaghan, “Return travel and Covid-19 as a grave risk of harm in Hague Child Abduction Convention cases”

Since February, 2020, courts have been faced with many novel arguments concerning the Covid-19 pandemic in return proceedings under the “grave risk exception” provided in Article 13(1)(b) of the 1980 Hague Convention. This article presents an analysis of judgments delivered by courts internationally which concern arguments regarding the safety of international travel in return proceedings during the Covid-19 pandemic. While courts have largely taken a restrictive approach, important clarity has been provided regarding the risk of contracting Covid-19 as against the grave risk of harm, as well as other factors such as ensuring a prompt return despite practical impediments raised by Covid-19 and about quarantine requirements in the context of return orders. Given that the pandemic is ongoing, it is important to reflect on this case law and anticipate possible future issues.

 

Chukwudi Paschal Ojiegbe, “The overview of private international law in Nigeria” (Review Article)