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Inaugural Lecture by Alex Mills (UCL): The Privatisation of Private (and) International Law
Speaker: Professor Alex Mills (Faculty of Laws, UCL)
Chair: Professor Campbell McLachlan QC (Victoria University Wellington)
Date and time: 06 February 2020, 6:00 pm to 7:00 pm
Location: Bentham House, UCL Laws, London, WC1H 0EG, United Kingdom
Abstract
The boundary between public and private legal relations at the international level has become increasingly fluid. State actors engage internationally in private commercial activity, while the privatisation of traditional governmental functions has led to private actors exercising ostensibly public authority, and accelerated the development of a hybridised public-private international investment law. Privatisation as a general phenomenon is much debated, although there has been relatively little focus on the governmental functions which are perhaps of most interest to lawyers – law making, law enforcement, and dispute resolution. This lecture will argue that modern legal developments in the context of private law and cross-border private legal relations can be usefully analysed as two distinct forms of privatisation. First, privatisation of the allocative functions of public and private international law, in respect of both institutional and substantive aspects of regulation. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration.
About the Speaker
Alex Mills is Professor of Public and Private International Law in the Faculty of Laws, University College London. His research encompasses a range of foundational issues across public and private international law, as well as international investment law and commercial arbitration. He has degrees in Philosophy and Law from the University of Sydney, and an LLM and PhD (awarded the Yorke Prize) from the University of Cambridge, where he also taught before joining UCL. His publications include ‘Party Autonomy in Private International Law’ (CUP, 2018), ‘The Confluence of Public and Private International Law’ (CUP, 2009), and (co-authored) ‘Cheshire North and Fawcett’s Private International Law’ (OUP, 2017). He was awarded the American Society of International Law’s Private International Law Prize in 2010, has Directed Studies in Private International Law at the Hague Academy of International Law, and is a member of Blackstone Chambers Academic Advisory Panel and the Editorial Board of the International and Comparative Law Quarterly.
The organisors request you to consult for more information and to register for the event here.
Development of Private International Law in the UK post Brexit.
The event is free to attend. The following URL provides full information and registration details: https://www.eventbrite.com/e/the-development-of-private-international-law-in-the-uk-post-brexit-tickets-89779245139
Date: Friday 28th February 2020, 9am-5pm.
Location: Queen Mary University of London, 67-69 Lincoln’s Inn Fields, Room 3.1, London, WC2A 3JB
This is the first of four public AHRC workshops on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspectives.
About the event
With Brexit having taken place on 31 January 2020 this workshop comes at an ideal time to focus on how private international law in the UK should develop once the implementation period for the UK leaving the EU has finished (which under UK law should be on 31 December 2020). Several eminent speakers will address the issue from four key perspectives:
- Global – Professor Trevor Hartley LSE
- Commonwealth – Professor David McClean, University of Sheffield
- EU/EEA – Michael Wilderspin – Commission Legal Service
- Intra-UK – Dr Kirsty Hood QC, Faculty of Advocates, Scotland
There will be a discussant for each perspective and then plenty of time for questions and comments after each main speaker.
The workshop will also hear from the organisers of this AHRC Research Network:
- Professor Paul Beaumont, University of Stirling
- Dr Mihail Danov, University of Exeter (who will report on his English pilot study)
Furthermore some empirical research findings will be shared by:
- Professor Sophia Tang, University of Newcastle
- Dr Jayne Holliday, University of Stirling
Those interested in advising on the development of this Research Network are welcome to stay for an informal meeting to be held at the end of the workshop between 5.10 and 6pm.
This event is free and open to all but registration is required because spaces are limited.
Professor Paul Beaumont and Dr Mihail Danov would like to thank Queen Mary University of London for their wonderful support by hosting the first three workshops and also AHRC for funding the Research Network.
Future Events
The second and third workshop of this series will be held on Wednesday 1st and Thursday 2nd April 2020 in the same location, Queen Mary University of London, Room 3.1, 67-69 Lincoln’s Inn Field, London and will focus on the future development of private international law in the UK in relation to commercial law (April 1) and family law (April 2).
The final workshop will be held on Thursday 2nd July 2020. This will be held as a joint venture with the Journal of Private International Law and will be held at Reed Smith, Broadgate Tower, 20 Primrose Street, EC2A 2RS
Tickets for these events will be available shortly.
SUPREME COURT OF INDIA CLEARS THE MURKINESS SURROUNDING THE TERMS ‘VENUE’, ‘SEAT’ AND ‘PLACE’
By Tasha Joseph
The confusion between ‘place’, ‘seat’ and ‘venue’ in International Commercial Arbitration cases was put to rest in the recent judgment of the Supreme Court in Union of India v. Hardy Explorations And Production(India) Inc.1. The decision was given by a three-judge bench which unanimously passed the decision that ‘seat’, ‘venue’ and ‘place’ did not signify the same meaning and could not be used interchangeably. Instead, the three terms denote different meanings and in the absence of express provision for any of the same, there were tests to be met in order to determine the actual ‘place’, ‘venue’ and ‘seat’.
In this case, Kuala Lumpur was selected as the ‘venue’ for the arbitration proceedings in the agreement, with the application of the UNCITRAL model for the same. Upon the Union of India challenging the award under section 342 in the Delhi High Court, the Court had to determine whether Kuala Lumpur was the ‘seat’ and hence if the action in the Indian court was unmaintainable. The Delhi High Court held that the courts did not have jurisdiction and thus refrained from looking into the merits of the case. The matter then went to a division bench and finally a three-judge bench of the Supreme Court.
The court went into the previous decisions such as Sumitomo Heavy Industries Ltd. v. ONGC & Ors. 3, Bhatia International v. Bulk Trading S.A. 4and BALCO case5 to understand the principles that need to be applied for deciding the seat of arbitral proceedings.
The Court observed that the determination of the seat has to be contextually done. Only when the ‘place’ was agreed upon, in the agreement, between the parties, ‘place’ would be equivalent to the seat. Positive action is needed and for ‘place’ to be treated as ‘seat’, a condition precedent (if any) must be met as well. For instance, a ‘place’ can become a ‘seat’ if a condition precedent present (if any) is met. For the ‘venue’ to become ‘seat’ something else was needed as a concomitant to the provision of ‘venue’ in the agreement. ‘Venue’ and ‘place’ do not ipso facto assume the status of a ‘seat’.
There were no conditions precedent or any positive act mentioned to determine Kuala Lumpur as the ‘seat’ in the concerned matter and hence Kuala Lumpur could not be treated as the juridical seat. Thus, the matter was maintainable as the courts in India have jurisdiction and the order passed by the Delhi High Court had been set aside.