Views
Nothing Found
Sorry, no posts matched your criteria
News
Out now: Nishioka / Nishitani, “Japanese Private International Law”; Jolly / Khanderia, “Indian Private International Law”
“Japanese Private International Law” certainly contains the currently leading reference to Japanese private international law in English.
The blurb reads: “The chapters systematically cover the whole of Japanese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes. The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. The chapters also look into conflict of law questions arising in arbitration and assess Japanese involvement in the global harmonisation of private international law. In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible and identify deficiencies and anticipate difficulties in the existing law. The book thus presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.”
For those who are particularly interested in unified or harmonized global PIL Chapter 6, still rather short (pp. 258 – 262), is recommended, dealing with Japan’s role in the works of the HCCH, UNICTRAL and UNIDROIT. For all others who are interested in comparative private international law, this book is an indispensable tool and combines most valuable information with most thorough analysis. The text is precisely structured which helps a lot to find one’s way directly to the issue in question. It also covers international alternative dispute resolution, in particular arbitration and mediation. The book is an admirable cooperative effort between Dr Kazuaki Nishioka (full text draft) and Professor Yuko Nishitani (comments and revision), as is explained in the foreword.
Likewise, “Indian Private International Law” certainly contains the currently leading reference to Indian private international law in English.
The blurb reads: “This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.
Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.
The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.
The book’s international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India’s private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.” Saloni Khanderia is of course known to CoL readers as one of the blog’s editors.
“Japanese Private International Law” (Volume 5) and “Indian Private International Law” (Volume 6) continue Hart’s Series on Studies in Private International Law – Asia, run by Anselmo Reyes (editor) and Paul Beaumont (advisory editor), after equally eminent publications (Volumes 1 to 4) on the recognition and enforcement of judgments in Civil and Commercial Matters, edited by Anselmo Reyes, Indonesian Private International Law by Afifah Kusumadara, Chinese Private International Law, edited by Xiaohong Liu and Zhengyi Zhang, and, last not least, Direct Jurisdiction: Asian Perspectives, edited by Anselmo Reyes and Wilson Lui.
All highly recommended!
A Comparative, German-Israeli Workshop on Legal Tech in Legal Education
The German Federal Bar Association (Bundesrechtsanwaltskammer – BRAK) and the German Israeli Lawyer’s Association (DIJV) will host a comparative, English-language workshop on legal tech in legal education. Confirmed Speakers are Professor Ruth Janal (University of Bayreuth), Dr. Aviv Gaon (Harry Radzyner Law School, Reichman University, IDC Herzliya) and Professor Christian Wolf (Leibniz University, Hanover). The workshop will take place via Zoom on 2 December 2021. For further information and registration, see here.
CJEU on law governing time limits for lodging claims in secondary insolvency proceedings in the case ALPINE BAU, C-25/20
Under Article 32(2) of the Regulation No 1346/2000 (the “old” Insolvency Regulation, now repealed by the Regulation 2015/848), “the liquidators in the main and any secondary proceedings shall lodge in other proceedings claims which have already been lodged in the proceedings for which they were appointed, provided that the interests of creditors in the latter proceedings are served thereby, subject to the right of creditors to oppose that or to withdraw the lodgement of their claims where the law applicable so provides”.
The Regulation No 1346/2000 does not expressly stipulate the point in time when the claims already lodged in the proceedings for which a liquidator has been appointed should be brought in such other proceedings. That being said, its Article 4, for the purposes of the main proceedings, and its Article 28, for the purposes of secondary proceedings, clarify that, unless otherwise provided for in the Regulation, the law of the State in which proceedings are opened (lex concursus) is to apply to all proceedings.
As put by AG Campos Sánchez-Bordona in his Opinion presented back in May, that is why, in the case ALPINE BAU, C-25/20, a Slovenian court asked the Court of Justice whether the liquidator in the main insolvency proceedings conducted in Austria, who is seeking to file, in secondary proceedings conducted against the same debtor in Slovenia, claims which he already filed in the former proceedings, is subject to the time limits (and the consequences of failure to comply with those time limits) laid down in Slovenian law.
A different interpretation that the referring court also put into consideration consists on the idea that the Regulation lays down, in Article 32(2), a special right for a liquidator to lodge claims in other insolvency proceedings without being bound by any time limit (see point 13 of the request available here).
Another rival interpretation seemed to be, at least in the light of point 28 of the Opinion, implicitly endorsed by the liquidator in the main insolvency proceeding in the written observations. According to that interpretation, the time limits for lodging claims in any other proceedings are determined in accordance with the lex concursus of the main proceedings.
Opinion of AG
In his Opinion, AG Campos Sánchez-Bordona pronounced himself in favor of the first interpretation and proposed to the Court to consider that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.
Judgment of the Court
This Thursday, the Court delivered its judgment in the case at hand. In essence, the Court agreed with the answer proposed in the Opinion. More precisely, it held that Article 32(2) of the Regulation No 1346/2000, read in conjunction with Articles 4 and 28 of the Regulation (these two provisions did not, however, appear in the preliminary question, yet the Court seemingly considered it necessary to introduce them in its reading of the question and consequently in its answer, see paragraph 26 of the judgment), is to be interpreted as meaning that the time limits for the lodgement of the claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened (paragraph 42).
The judgment itself is all the more interesting as it also deals – and ultimately rejects – the other two interpretations mentioned above, at its paragraphs 34-40 and 41, respectively.
The judgment is available here, in French.