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Moser and McIlwrath: Negotiating International Commercial Contracts
Gustavo Moser and Michael McIlwrath have just published “Negotating International Commercial Contracts” (with Eleven publishers). More information is available on the publisher’s website.
The authors have kindly provided us with the
follow summary:
The choices of law and forum are seldom negotiated in great depth, despite presenting far reaching implications, often more than what negotiators would generally consider or predict. Poorly negotiated clauses of law and forum might (and often do!) result in unwelcome surprises and costly mistakes. Negotiating these clauses has always been, and is likely to become even more, pivotal to a contract’s ‘well-being’ going forward, particularly in light of Brexit and the pandemic
It is therefore a rather opportune time to consider a few key issues in the negotiation (prospective) and enforcement (actual) of choice of law and choice of jurisdiction clauses.
For example, what law applies to a defective choice of law clause or, in the absence of it, to the main contract, or, rather, to a (defective or otherwise) dispute resolution clause? In which court should I initiate legal proceedings and what are the main commercial risks and benefits of such choice.
It is also pertinent to rethink prospective choices: what is the optimal law(s) to my contract based on a pre-selected set of variables and preferences (e.g. approach given to contract interpretation, contract performance, mandatory rules or gap-fillers)? Are there any other contractual arrangements which might be of particular interest?What are the main difficulties to bear in mind when considering choice of law and choice of dispute resolution clauses?
The above and many more questions are raised and discussed in our recently published book Negotiating International Commercial Contracts: Practical Exercices (Eleven 2020) The 80+ exercises, with inspiration from real-life scenarios, invite the readers to understand the importance of these clauses. The book further aims to provide guidance to anyone involved in contract negotiation as to how they may more effectively make informed and commercially sensible choices in their deals.
Just launched: EU public consultation on modernising judicial cooperation between EU countries – use of digital technology
The public consultation on the EU initiative modernising judicial cooperation between EU countries – use of digital technology is open from 16 February 2021 until 11 May 2021 (midnight Brussels time), click here. We have previously reported on the EU feedback period of this initiative here (which is a previous step and is part of the roadmap).
The public consultation consists of a questionnaire with 15 questions (mainly multiple-choice). An interesting question is the following:
“9) In case it is decided to propose a new EU legal instrument, what aspects of digitalisation should it regulate (Multiple choice – one or several replies are possible): – The mandatory or optional nature of electronic communication with and between competent national authorities – The legal validity of electronic documents and evidence – The conditions for the use of electronic signatures/seals – The responsibilities for data protection obligations – The architecture of the IT system to be used – Other (Please elaborate in the box below).”
With regard to the purpose of this initiative, the EU website states the following:
“This consultation concerns cross-border judicial cooperation in the European Union. It refers to civil, commercial and criminal cases and involves, for various reasons, more than one EU Member State. The European Commission is planning a new initiative aiming at digitalising cross-border judicial cooperation procedures. The purpose is to make use of new digital tools for electronic communication between courts, other competent authorities of the Member States and also to give the possibility to individuals and businesses to start proceedings and to communicate with the courts and the other competent authorities in other EU countries electronically, to be able to submit electronic documents from the comfort of their homes and offices. Currently, the communication from individuals/businesses to judicial authorities and between the public authorities themselves is carried out mainly on paper, which causes delays, involves more costs and is susceptible to crises such as COVID-19 pandemic. The European Commission seeks the views and opinions of stakeholders and all persons who could be impacted by the future initiative in order to take them into consideration when deciding on the possible options and the way forward.”
New edition: Hess’ Europäisches Zivilprozessrecht
Burkhard Hess, Europäisches Zivilprozessrecht, De Gruyter 2021.
Just over ten years after the first edition of Europäisches Zivilprozessrecht (European Civil Procedure) by Burkhard Hess (director Max Planck Institute for Procedural Law, Luxembourg) a second – even more voluminous and impressive – edition was published early 2021. While updating this book after a decade that marks not only the further expansion but perhaps also the coming of age of European Civil Procedure is an immense task in itself, this new addition also expands in breadth. Particularly noteworthy is the new part on the interaction between European law and national civil procedure, including out-of-court procedures.
A must-read or even must-have for German readers having an interest in European Civil Procedure!
The blurb on the publisher’s website reads:
This book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union, it expounds on the legislative powers of the Union, the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. The 2nd edition of this treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the European Union. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the EU Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the Court of Justice. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.
This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.