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
U.S. Courts Recognize NAFTA Award Against Mexico
This submission written by Celeste Hall, JD Candidate at the University of Pittsburgh School of Law and Global Legal Scholar.
The legal news has been awash lately in the recognition and enforcement of investment arbitration awards by U.S. courts. Most of the press is on the long-running and still-unfolding saga regarding Spain (see here and here). And a new decision recognizing an award against Zimbabwe was just issue at the end of December, as well. Here, however, we would like to add to the news with the recent decision recognizing an investment arbitration award against Mexico in United Mexican States v. Lion Mexico Consolidated.
Like most investment arbitrations, the decision tells a sordid tale. Lion Mexico Consolidated (LMC) is a Canadian company which provided financing to a Mexican businessman, Mr. Hector Cardenas Curiel, to develop real estate projects in Nayarit and Jalisco, Mexico. Cardenas’ company failed to pay on the loans, and LMC tried for years to obtain payment, all to no avail. Cardenas then began what was described as a “complex judicial fraud” to avoid payment, including a forgery and a subsequent lawsuit in a Jalisco court to cancel the loans. LMC was never informed of the suit and therefore, never appeared. The Jalisco Court issued a default judgment discharging the loans and ordering LMC to cancel the mortgages; Cardenas then arranged for an attorney to act fraudulently on LMC’s behalf to file and then purposefully abandon the appeal. LMC only learned of the entire scheme when they attempted to file their own constitutional challenge and were rejected. The Mexican Courts refused to allow LMC to submit evidence of the forgeries, so LMC brought a NAFTA Chapter 11 arbitration against Mexico for its failure to accord Lion’s investments protection under Article 1105(1) of NAFTA. Read more
Reminder: Call for Paper Proposals – Journal of Private International Law 20th Anniversary Conference
As posted earlier here, the conference organizers and editors of the JPIL are welcoming submissions for the 20th Anniversary Conference of the Journal of Private International Law, to be held in London 11–13 September 2025.
Proposals including an abstract of up to 500 words can be send to JPrivIL25@ucl.ac.uk until 17 January 2025.
More information can also be found here.
An ERA online seminar on Migrants in European Family Law will take place on 6-7 February 2025. For more information, click