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Conflict of Laws Section of the American Association of Law Schools (AALS) Panel on Jan. 4, 2020 in Washington, DC

On January 4, 2020, the Conflict of Laws Section of the American Association of Law Schools (AALS) will host a panel at the AALS Annual Meeting in Washington, DC.   Registration is available here.

Sessions Information
January 4, 2020

10:30 am – 12:15 pm

Room: Maryland Suite B
Floor: Lobby Level
Hotel: Washington Marriott Wardman Park Hotel

Description: The biggest development in conflict of laws in the last 100 years is the move to party autonomy. The panel will discuss issues relating to the interpretation and enforcement of choice-of-law clauses, forum selection clauses, and arbitration clauses. It will also discuss the reasons why parties may choose to arbitrate or litigate future disputes at the time of contracting.

Speakers

Moderator: John F. Coyle, University of North Carolina School of Law

Speaker: Pamela Bookman, Fordham Law School

Speaker: Christopher R. Drahozal, University of Kansas School of Law

Speaker: Laura E. Little, Temple University, James E. Beasley School of Law

Speaker: Julian Nyarko, Stanford Law School

Two new resolutions by the Institut de Droit International

In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

  1. If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

  2. If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

  3. If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

  4. If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

  5. If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Out now: T.M.C. Asser: In Quest of Liberty, Justice, and Peace

Arthur Eyffinger, legal historian and former Head Librarian of the International Court of Justice, recently published T.M.C. Asser (18381913): In Quest of Liberty, Justice, and Peace (Brill 2019). As the name suggests, the two-volume biography retraces the life of Tobias Asser, who famously won the Nobel Peace Prize in 1911 for his contributions to the field of private international law, including the establishment of the Hague Conference on Private International Law, the initiative to found the Institut de Droit International, and his role in the subsequent creation of the Hague Academy of International Law.

A copy of the book was presented to the great-grandson of Tobias Asser, Professor Daan Asser, yesterday in the context of a mini-symposium co-hosted by the Royal Netherlands Society of International Law (KNVIR) and the Institut de Droit International, which is currently holding its 79th session in the Peace Palace in the Hague. The symposium featured contributions by Marta Pertegás Sender, Janne Nijman, Jean Salmon, Hans van Loon, and the author, Arthur Eyffinger, himself.