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Brand and Herrup on “A Hague Parallel Proceedings Convention”

In their most recent article on A Hague Convention on Parallel Proceedings, 63 HARVARD INTERNATIONAL LAW JOURNAL ONLINE 1 (2022), Ron Brand and Paul Herrup argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group have moved forward on the Parallel Proceedings Convention project, however, there has been difficulty in leaving behind existing approaches that have not led to acceptable solutions. In particular, the work has failed to look far beyond the traditional civil law lis alibi pendens and common law forum non conveniens approaches to parallel litigation, or a focus on questions of jurisdiction.

In their new article, available here, the authors argue that the time is ripe for fresh thinking that reflects Twenty-first century realities in finding a workable approach to parallel litigation. They build on the previous article by discussing a possible architecture and some of the critical features of a parallel proceedings convention geared to moving litigation to the better forum.

Mexican Journal of Private International and Comparative Law – issue No 47 is out

The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 47 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.

Below is the table of contents (including abstracts in English):

DOCTRINA

ACTOS JURÍDICOS RELACIONADOS CON BIENES MUEBLES E INMUEBLES EN EL DERECHO INTERESTATAL MEXICANO

Jorge Alberto SILVA

Abstract: This contribution is part of a larger research work on interstate Law related to property, in relation with article 121 of the [Mexican] Constitution. It reformulates the meaning of each of the sections with the treatment of assets from a merely constitutional approach based on judicial precedents and legal scholarship developed from the 19th century to the present. It ends up providing its own interpretive theses.

LA LEY APLICABLE AL CONTRATO DE INTERMEDIARIO QUE AMPARA ACTOS DE CORRUPCIÓN

James A. GRAHAM

Abstract: There is no particular reason to consider the intermediary or commission agent contract as an exception to the rule of lex contractus. The fight against corruption is in the Public Policy Law (“loi de police”), especially the foreign Public Policy Law. Despite the reluctance of judges and arbitrators to apply them due to lack of criteria, we believe that the Rome I Regulation can be used as a form of “international” criterion for both judicial and arbitral tribunals.

HACIA UNA INTERPRETACIÓN UNIFORME DEL CONCEPTO DE RESIDENCIA HABITUAL EN EL CONTEXTO DE LA SUSTRACCIÓN INTERNACIONAL DE MENORES

María Mayela CELIS AGUILAR (also known as Mayela Celis)

Abstract: This article seeks to analyze the concept of habitual residence, as well as the current trend towards its uniform interpretation in the context of international child abduction. In particular, we will try to show that habitual residence is a predominantly factual concept, and therefore flexible, and that its interpretation has an important impact, especially in times of pandemic.

PERSPECTIVAS COMPARADAS DE COMPETENCIA JUDICIAL INTERNACIONAL EN LA UE Y MÉXICO EN LAS CONTROVERSIAS ENTRE EL HUÉSPED-CONSUMIDOR Y LA PLATAFORMA DIGITAL DE ALOJAMIENTO TURÍSTICO

Silvana CANALES GUTIÉRREZ

Abstract: In a dispute arising from a digital intermediation services contract with an international element between a guest-consumer and a digital platform of tourist accommodations is not easy to establish the international jurisdiction. The response of Private International Law in both the European Union and Mexico depends on several factors that vary according to the specific case, and among them may be mentioned, whether or not the guest meets the requirements to be considered as a consumer, and the State where his domicile is located. With respect to the platform is relevant if it has an establishment in the State of domicile of the consumer or if it targets its activities to that State. If a person meets the requirements of a ”consumer”, that fact creates special rights regarding international jurisdiction for consumers domiciled in both the EU and Mexico, however the breadth of such rights reflects their Private International Law systems, which protect the consumer at different levels, on which the comparative analysis of this brief research is based.

JURISPRUDENCIA

NULIDAD DE LAUDO ARBITRAL. COMO CONSECUENCIA DE SER DECLARADA, NO PROCEDE CONDENAR A LOS ÁRBITROS A LA RESTITUCIÓN DE SUS HONORARIOS.

RESEÑAS POR LEONEL PEREZNIETO CASTRO

URUGUAY: TEXTO Y CONTEXTO. LEY GENERAL DE DERECHO INTERNACIONAL PRIVADO N.º 19.920, Uruguay, FCU, 2021, 280 pp. / Cecilia Fresnedo de Aguirre, Gonzalo A. Lorenzo Idiarte

CHILE: DERECHO INTERNACIONAL PRIVADO, LEYES, TRATADOS Y JURISPRUDENCIA, Chile, Thomson Reuter, 2022, 721 pp. / Eduardo Picand Albónico

RabelsZ 86 (2022): Issue 3

The latest issue of RabelsZ has just been released. It contains the following contributions:

OBITUARY

Jürgen Basedow: Ulrich Drobnig *25.11.1928 †2.3.2022, 571–576, DOI: 10.1628/rabelsz-2022-0052

ESSAYS

Daniel Gruenbaum: From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law, 577–616, DOI: 10.1628/rabelsz-2022-0053

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

Matthias Fervers: Die Drittwirkungen der Forderungsabtretung im Internationalen Privatrecht, 617–643, DOI: 10.1628/rabelsz-2022-0054

Third-Party Effects of Assignments of Claims in Private International Law. – Although Art. 14 Rome I Regulation addresses the relationship between the assignor and the assignee as well as the relationship between the assignee and the debtor, there is still no provision as to the third-party effects of assignments. The question of what law should govern these third-party effects is, correspondingly, a subject of considerable discussion. While some propose that the law governing the assigned claim should be applicable, others suggest that third-party effects should be governed by the law that applies to the contract between the assignor and the assignee; the current prevailing opinion assumes that third-party effects should be governed by the law of the habitual residence of the assignor. This article demonstrates that a limited possibility for a choice of law for assignor and assignee is the most appropriate solution.

Christoph Wendelstein: Der Handel von Kryptowährungen aus der Perspektive des europäischen Internationalen Privatrechts, 644–686, DOI: 10.1628/rabelsz-2022-0055

The Trading of Cryptocurrencies from the Perspective of European Private International Law. – The rules in the Rome I Regulation are used to ascertain the applicable law in cases of trades in cryptocurrencies. However, these are only partially appropriate for a predictable determination of the applicable law. While in B2B and C2C cases of “stationary” trading of cryptocurrencies via Crypto-ATMs the law at the location of the ATM still provides a predictable legal system, this is not the case for online trading with crypto-brokers or via crypto exchanges. Especially in cases of online trading via crypto exchanges, a further complication results from the fact that such platforms allow their users to trade legally under a pseudonym – in line with the historical notion of cryptocurrencies. This may complicate or even prevent the determination of the applicable law. The resulting “vacuum” is to some extent filled by the technical design of the transaction through the use of smart contracts. However, this does not dispense with the question of applicable law. The article examines these and other questions and points out possible solutions de lege lata.