Views
Review of Choice of Law in International Commercial Contracts
While doing research on a choice of law article, I found it necessary to consult a book generally co-edited by Professors Daniel Girsberger, Thomas Graziano, Jan Neels on Choice of Law in International Commercial Contracts (‘Girsberger et al’). The book was officially published on 22 March 2021. I began reading sections of the book related to tacit choice of law sometime in December 2022 and found the work truly global and compelling. At the beginning of June this year, I decided to read the whole book and finished reading it today. It is 1376 pages long!
To cut the whole story short, the book is the bible on choice of law in international commercial contracts. It covers over 60 countries, including regional and supranational bodies’ rules on choice of law. Professor Symoen Symeonides had previously written a single authored award winning book on Codifying Choice of Law Around the World, but that work did not cover as much as Girsberger et al’s book in terms of the number of countries, and regional and supranational instruments (or principles) covered.
Denial of Natural Justice as a Defence to Enforcement of a Chinese Judgment in Australia
In Yin v Wu [2023] VSCA 130, the Court of Appeal of the Supreme Court of Victoria set aside a judgment[1] which had affirmed the enforcement a Chinese judgment by an Associate Justice of the Supreme Court.[2] This was a rare instance of an Australian court considering the defence to enforcement of a foreign judgment on the basis that the judgment debtor was denied natural justice—or procedural fairness—before the foreign court.
Background
The dispute concerned a payment made by a Chinese national living in China, Di Wu, to a Chinese national living in Australia, Ke Yin. The payment was made pursuant to a foreign exchange agreement: Yin had promised to pay Wu a sum of US Dollars in exchange for Wu’s Chinese RMB.
The arrangement was made unusually through a series of Telegram and WhatsApp messages, from accounts with different numbers and aliases. (In Australia, we would say that the arrangement sounded ‘suss’.) The agreement was seemingly contrary to Chinese law, which may have contributed to the clandestine character of communications underlying the agreement; see [30].
Change of gender in private international law: a problem arises between Scotland and England
Written by Professor Eric Clive
The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a Bill passed by the Scottish Parliament by a large majority. The Scottish government has challenged the order by means of a petition for judicial review. The case is constitutionally important and may well go to the United Kingdom Supreme court. It also raises interesting questions of private international law.
At present the rules on obtaining a gender recognition certificate, which has the effect of changing the applicant’s legal gender, are more or less the same in England and Wales, Scotland and Northern Ireland. The Scottish Bill would replace the rules for Scotland by less restrictive, de-medicalised rules. An unfortunate side effect is that Scottish certificates would no longer have automatic effect by statute in other parts of the United Kingdom. The United Kingdom government could remedy this by legislation but there is no indication that it intends to do so. Its position is that it does not like the Scottish Bill.
One of the reasons given by the Secretary of State for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. A person, he assumes, might be legally of one gender in England and another in Scotland. There would therefore be difficulties for some organisations operating at United Kingdom level – for example, in the fields of tax, benefits and pensions. This immediately strikes a private lawyer as odd. Scotland and England have had different systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to.
News
European Legal Forum 1/2024: Comments on the Proposal for a Council Regulation on Parenthood
The latest issue (1/2024) of The European Legal Forum features a series of comments on the Proposal for a Council Regulation on Parenthood by Ilaria Queirolo on The Proposed EU Regulation on Parenthood: A critical Overview of the Rules on Jurisdiction; Francesco Pesce on, The Law Applicable to Parenthood in the European Commission’s Regulation Proposal; Stefano Dominelli on Recognition of Decisions and Acceptance of Authentic Instruments in Matters of Parenthood under the Commission’s 2022 Proposal; Francesca Maoli on The European Certificate of Parenthood in the European Commission’s Regulation Proposal: on the ‘Legacy’ of the European Certificate of Succession and Open Issues, and Laura Carpaneto on The Hague Conference of Private International Law’s “parentage/surrogacy” project.
The commentary is a deliverable of the Project Fluidity in family structures. International and EU law challenges on parentage matters, financed by the Ministry of University and Research of the Italian Republic and by the European Union – Next Generation EU (prot. n. 2022FR5NNJ – PRIN 2022). The Consortium includes: the University of Pavia as coordinator and the universities of Milano, Genova, and Cagliari.
All publications of the project are available in Open Access here.
ZEuP – Zeitschrift für Europäisches Privatrecht 2/2024
Issue 2/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.
The following contributions might be of particular interest for the readers of this blog:
- Auf dem Weg zu einer europäischen Abstammungsverordnung? – Licht und Schatten im Vorschlag der Europäischen Kommission
Editorial by Christine Budzikiewicz on the Commission Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood - Europäischer Emissionsrechtehandel – Eine Momentaufnahme nach der Reform durch das „Fit for 55“-Paket
Sebastian Steuer on European emissions trading: Carbon pricing according to the “cap and trade” principle plays a key role in European climate policy. As part of the “Fit for 55” package, the Emissions Trading Directive has, once again, undergone comprehensive revisions and has been substantially toughened in certain respects. This article gives a basic overview of the current state of European emissions trading after the recent changes. It explores the chief components of the Emissions Trading Directive, highlights the economic differences between quantity- and price-based regulation, and discusses the interplay of the EU emissions trading system with international and German climate policy. - Microplastics Litigation: eine rechtsvergleichende Orientierung
Stephanie Nitsch on Microplastics Litigation: The present paper provides a comparative law analysis of liability for microplastics pollution with a special focus on product liability as well as liability due to deliberate or negligent breaches of statutory duties or duties of care. - Bundesgerichtshof, 18 April 2023, II ZR 184/21
Susanne Zwirlein-Forschner discusses a decision of the German Federal Court of Justice on the law applicable to liability due to economically destructive actions and to the assignment of claims.
6e Journée de droit patrimonial international, Université de Lausanne, 12 Sept 24
On 12 September 2024, the Centre de droit comparé, européen et international (CDCEI) and the Centre du droit de l’entreprise (CEDIDAC) at the Université de Lausanne are hosting the 6e Journée de droit patrimonial international. The conference will focus on the EU Succession Regulation (no. 650/2012) and the section on international successions of the Swiss Private International Law Act.
The flyer can be found here.