Yasmine Lahlou & Marina Matousekova have written an article in the latest issue of the International Business Law Journal on "Private International Law Applied to Business" (No.4, 2006, p.547-573). The abstract states:

In the field of conflicts of laws, French courts were referred disputes relating to employment and factoring agreements. The issues of procedural agreements and court’s duty in applying foreign laws were dealt with, as well as the impact of public policy rules on insurance contracts. French courts also ruled on the issue of court’s jurisdiction as regards agency agreements and insolvency proceedings as well as on States’ jurisdictional immunities.

In community law, the ECJ and French courts ruled on the notion of the « centre of a debtor’s main interests » in the sense of Article 3.1 of the EC Regulation 1346/2000 on insolvency proceedings as well as on problems of transmission of acts between Member States (EC Regulation 1348/2000). The ECJ also ruled on the res judicata of a decision having infringed community law. English courts ruled on an anti suit injunction in regard of the violation of an arbitration agreement and on jurisdictional immunities. French and Irish courts ruled, on the ground of Article 5.1 of the Brussels Convention, on the issue of courts’ jurisdiction in the field of brokerage contracts and sale of goods. The French Cour de cassation, the ECJ and the English High Court ruled, on the ground of Article 5.3 of the Brussels Convention, on territorial jurisdiction in the field of intellectual property rights, damages caused by car accidents, and misleading declarations. The ECJ was also interrogated as to the application of Article 16.1 of the Convention to damages to real estates, while the Cour de cassation was asked to rule upon the application of Article 16.4 of the Convention to registered intellectual property rights. The Cour de cassation also had to rule, on the ground of Article 6.1 of EC Regulation, on the link of connexity between main claims and claims in guarantee. The English High court was referred an issue of lis pendens with regard to the date of accession of a State to EC Regulation 44/2001. The Cour de cassation also ruled, on the ground of Article 27.1 of the Brussels Convention, on lis pendens in an action for infringement of intellectual property rights. In the field of recognition and enforcement, French, English and Italian courts ruled, on the ground of Article 27 of the Brussels Convention, on possible breaches of rules of public policy, on the regularity of a notification to the defendants, and on the purported contradiction between national and foreign decisions. The ECJ ruled, on the ground of Articles 34 and 36 of the Convention, on the consequences of an irregularity of the notification of the foreign decision with regard to its exequatur. The French Cour de cassation and the Paris Court of Appeal ruled on the enforceability of foreign judgments in the sense of Article 47.1 of the Convention.

As regard to private international law in the US, the District Court of New York recalled the criteria for American courts to have jurisdiction over class action in securities fraud claims, while the US Court of Appeals of the First Circuit ruled on the extra-territoriality of the Whistleblower provision of the Sarbanes Oxley Act.

Those with access to the IBLJ can download the article, or you can buy the article for 47 Euros from the IBLJ website.

Again with thanks to the International Civil Litigation Blog for many of the citations below, Part II of the December 2006 round-up will discuss a few significant case developments in the fields of International Discovery and Foreign Sovereign Immunity.  More expanded discussion of these cases, and a few others pertaining to these topics, can be found at that site and other sites linked below.

INTERNATIONAL DISCOVERY

Linde v. Arab Bank, PLC, 2006 WL 3422227 (E.D.N.Y. Nov. 25, 2006).

In this case, a number of Israeli and American individuals and estates pressed actions against Arab Bank for aiding and abetting murder, conspiracy to commit murder, provision of material support to terrorists, committing and financing terrorism and other related claims.  Arab Bank claimed that bank secrecy laws in Jordan, Lebanon, and the Palestinian Monetary Authority (recognized by the United States) prevent the disclosure of certain records. At issue here is whether foreign bank secrecy laws can shield Arab Bank’s records from discovery. Violations of these laws involve criminal penalties of fines and incarceration, and plaintiffs apparently conceded that some of the information they sought in discovery would require violating the secrecy laws.

Nonetheless, the Court concluded that the U.S. interests in combating terrorism trumped a foreign state’s interest in bank secrecy, holding that:

“there is no question that important interests of the United States would be undermined by noncompliance with the discovery orders issued by the court. As the court has already recognized, those interests are articulated in statutes on which some of the claims in this litigation rest: “Congress has expressly made criminal the providing of financial and other services to terrorist organizations and expressly created a civil tort remedy for American victims of international terrorism.” Linde v. Arab Bank, PLC, 384 F.Supp.2d 571, 584 (E.D.N.Y.2005). The discovery sought here is transactional and other evidence of precisely those financial and other services at which the statutes here are aimed. Without that discovery, the interests expressed in those statutes will be difficult if not impossible to vindicate in this action.”

According to the court, although maintaining bank secrecy is an important interest of the foreign jurisdictions where the discovery sought here resides, that interest must yield to the interests of combating terrorism and compensating its victims. As members of the Middle East and North Africa Financial Action Task Force, both Jordan and Lebanon have expressly adopted a policy not to rely on bank secrecy laws as a basis for protecting information relating to money laundering and terrorist financing. Although the Palestinian Monetary Authority has apparently not expressly adopted any policies recognizing the subordination of bank secrecy to the interest of fighting terrorism, it is not a state, and its interests therefore need not be accorded the same level of deference accorded to “states” in considering comity. In any event, as the Palestinian Monetary Authority operates in an area governed at least in part by other authorities that have themselves engaged in terrorist activity, it would be absurd for this court to exalt the bank secrecy interests of those under the jurisdiction of the Palestinian Monetary Authority over the anti-terrorism interests of the United States and other recognized states in the region.The court ultimately concluded that Arab Bank should, with this opinion in hand, seek permission from appropriate governments to disclose information. The court deferred further action pending the outcome of this process.  News source and blog discussions of this case can be found here and here.

SEC v. Sandifur, 2006 U.S. Dist. LEXIS 89428 (W.D. Wash. 2006)

This case involves an action against Defendants for securities fraud. A witness who is a United States citizen working in Luxembourg has declined Defendant’s request to voluntarily appear in the United States for a deposition. The Walsh Act however, provides a U.S. Court with subpoena power over a national or resident of the United States who is in a foreign country if “it is not possible to obtain [a witness’s] testimony in admissible form without his personal appearance.” 28 U.S.C. §  1783(a). The issue presented here is whether the party seeking that subpoena power should be required to resort to the procedures outlined in the Hague Evidence Convention as a “possible” means of obtaining the testimony without a Walsh Act subpoena.  The court noted that:

“Under the Walsh Act, subpoenas may be issued when it is “impractical” to obtain the information. . . . Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the relevant evidence in time to meet impending discovery deadlines. The court held that “[u]se of the Hague Convention procedures in this case would be impractical. . . . [T]he discovery deadline of February 17, 2007 is only a few months away. Though the Parties disagree on precisely how long the Hague Convention procedures generally take to process letters of request, . . . it can take up to a year, and that at the end of the process the government of Luxembourg may exercise its right Under Article 23 of the Hague Convention not to grant such a request.  [T]he issue here is not that the Hague Convention procedures are merely inconvenient because they would require more resources or expertise to implement, but rather that they are impractical in the context the looming discovery deadline and overall trial schedule. [T]he Walsh Act does not require a harsh rule of 20/20 hindsight to see whether it ever would have been possible to obtain the information via other means but rather whether, looking forward, it “is not possible to obtain [the] testimony in admissible form without [the witness’s] personal appearance.” 28 U.S.C. §  1783(a) (emphasis added). While a party’s unreasonable delay may factor into the “interests of justice” analysis, the Act thus does not require denial of a subpoena where the alternative means would once have been theoretically feasible.”

Accordingly, the court held that “Defendants demonstrated that it is not possible to obtain [the requested] testimony in admissible form without his personal appearance and have thus satisfied both requirements to obtain a Walsh Act subpoena.”  The subpoena was accordingly granted.

Finally, the court discussed where the deposition should occur. The court considered London, but decided that this alternative would infringe upon the sovereignty of the UK. Forcing the foreign party to fly to New York seemed an excessive burden to the party and the court. Therefore, the court held that the deposition should proceed in Luxembourg. As for the infringement on Luxembourg’s sovereignty:Any potential infringement on Luxembourg’s sovereignty is outweighed by the imposition that the alternatives would impose on the nonparty witness. The Supreme Court has held that “American courts are not required to adhere blindly to the directives” of countries who oppose unauthorized, American-style discovery even when they have gone so far as to enact “blocking statutes.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 544 n. 29 (1987); see also Valois of America Inc. v. Ridson Corp., 183 F.R.D. 344; Rich v. KIS California, Inc, 121 F.R.D 254, 258 (M.D.N.C. 1998). While this Court recognizes that the “interest of foreign nations in the sanctity and respect of their laws is both important and deserving of significant respect,” see In re Vitamins Antitrust Litig., 120 F. Supp. 2d 45, 54 (D.D.C. 2000), in this case any potential sovereignty concerns are outweighed by the countervailing considerations regarding the significant burden that would otherwise be imposed on a nonparty witness. This decision, particularly that the Hague Evidence Convention is an “impractical” process, seems to further weaken the strength of that Convention in U.S. Courts.

In re Application of Roz Trading Ltd., 2006 WL 3741078 (N.D. Ga. Dec. 19, 2006)

Roz Trading, the Coca-Cola Export Company (“CCEC”), and the government of Uzbekistan entered a contract for a joint venture. Roz Trading alleges that Uzbekistan and CCEC seized its interest in the venture and accordingly brought its claim before the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (the “Centre”) in accordance with the contractual arbitration clause. Roz Trading sought the assistance of the court to obtain discovery from the Coca-Cola Company to be used in the arbitration.
 

Roz Trading relied upon 28 U.S.C. §1782(a) in requesting judicial assistance for document discovery. The court addressed whether section 1782(a) includes arbitrations before the Centre, a private arbitral forum.  The Coca-Cola Company argued that the Centre is not a “tribunal” for purposes of §1782(a) because it is a private institution whose proceedings are voluntary and arbitral. Taking guidance from Intel v. AMD, 542 U.S. 241 (2004), wherein the Supreme Court determined that the Directorate-General of Competition for the Commission of the European Communities was a “tribunal,” the court here held that private arbitral panels are also “tribunals” for 1782(a) purposes. In Intel, the Supreme Court drew special attention to the 1964 amendment to 1782(a) which “deleted the words ‘in any judicial proceeding pending in any court in a foreign country,’ and replaced them with the phrase ‘in a proceeding in a foreign or international tribunal,’” and characterized §1728(a) tribunals as “first-instance decisionmaker[s], capable of rendering a decision on the merits, and as part of the process that could ultimately lead to final resolution of the dispute.” Here, the Centre performs just such a function.  Accordingly, “[t]he Court held that the Centre is a ‘foreign or international tribunal’ within the meaning of § 1782(a).” In so holding, the court expressly disagreed with both the Second and the Fifth Circuits which, prior to Intel v. AMD, held that only governmental bodies qualify as tribunals under 1782(a). See Nat’l Broad. Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d. Cir.1999) and Republic of Kazahkstan v. Beidermann, 168 F.3d 880 (5th Cir.1999).

As a question of first impression in the Eleventh Circuit, the court issued an opinion fully supportive of international arbitration and robust judicial assistance for such forums. This opinion also fulfills the prediction of some commentators that Intel v. AMD would cause some courts to revisit whether private arbitration constitutes a tribunal under §1782.

FOREIGN SOVEREIGN IMMUNITY

Powerex Corp. v. Reliant Energy Services, No. 05-85 (U.S. 2006)

In a possible watershed case regarding the Foreign Sovereign Immunity Act, the Supreme Court has now twice re-listed the cert. petition in Powerex Corp. v. Reliant Energy Services, 05-85, thereby pushing back its grant or denial of Certiorari until after its holiday break.  The Questions Presented by the Petition are:

1. Whether an entity that is wholly and beneficially owned by a foreign state’s instrumentality, and whose sole purpose is to perform international treaty and trade agreement obligations for the benefit of the foreign state’s citizens, may nonetheless be denied status as an “organ of a foreign state” under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1603(b)(2), based on an analysis of sovereignty that ignores the circumstances surrounding the entity’s creation, conduct, and operations on behalf of its government.

2. Whether an entity is an “organ of a foreign state” under the FSIA when its shares are completely owned by a governmental corporation that, by statute, performs all of its acts as the agent of the foreign sovereign.

The cases grew out of the energy crisis in California in 2000 and 2001. Powerex contends that it is an arm of the province of British Columbia in Canada, but the NInth Circuit Court rejected that argument.  The full Petition is available courtesy of SCOTUS Bloghere. The SG has recommended that the Court grant on the first question. The decision of the Ninth circuit opinion is available here.

Agudas Chasidei Chabad of U.S. v. Russian Federation, 2006 WL 3476236 (D.D.C. Dec. 4, 2006)

This is fascinating case blending history and international law.  It involves the proper possession of the historic collection of books and materials of the Agudas Chasidei Chabad (“Chabad”), an organization of Jewish religious communities located worldwide with origins in the Russian Empire. The organization’s complaint against the Russian Federation and several Russian state agencies alleges that the defendants illegally took and retained a library and archive of Jewish religious books and manuscripts after World War II, which Chabad claims to rightfully own. On a motion to dismiss, the court heard: (1) Whether the Foreign Sovereign Immunities Act precludes jurisdiction over the case in US federal court; (2) Whether the act of state doctrine, which instructs US courts to presume the validity of actions taken by foreign governments within their territories, should preclude the court from ruling on the plaintiffs’ claims; (3) Whether forum non conveniens should compel dismissal of the plaintiffs’ action.

The Foreign Sovereign Immunities Act embodies the longstanding tradition of foreign sovereign immunity, but the Act includes a series of exceptions, one of which, the expropriation exception, the court found applicable to this case. For the exception to apply, the court needed to find that (1) property rights are at issue; (2) the property was taken in violation of international law; and (3) the property is owned or operated “by an agency or instrumentality of the foreign state and that agency or instrumentality’ engages in commercial activity in the United States.” The court granted the motion to dismiss regarding the library of works. Discussing the second prong, it concluded that the alleged taking of the property took place in the early 1920s, when the Fifth and Sixth Rebbes of the Chabad were citizens of the Soviet Union. In order for a taking to violate international law, the court reasoned, it must involve a state taking the property of citizens of a foreign state, and that condition was not satisfied in this case. Regarding the archives, however, the court found that the complaint alleged a violation of international law. Specifically, the archival materials were seized by the Nazis during WWII and, at the end of the war, they were appropriated by the Soviet Red Army in Poland in 1945. By the time the property taking occurred, the sixth Rebbe had become a Latvian citizen and the Chabad had been formally constituted as a New York Corporation, satisfying the requirement that the taking be conducted by a state actor against citizens of a foreign state.  The court also found the first and third prongs easily met with regard to the archives.

The court then found the Act of State doctrine inapplicable to this case because the taking in question did not occur within Soviet territory. While “[t]he act of state doctrine directs courts in the United States to presume the validity of ‘acts of foreign sovereigns taken within their own jurisdictions,’” neither the initial seizure of the library by the Nazis nor the subsequent appropriation of the library by the Soviet Union took place in Soviet territory. Consequently, the court held the act of state doctrine to be inapplicable to this case.

Finally, the court rejected the invitation to dismiss on forum non conveniens grounds, finding that the defendants had failed to satisfy their burden to demonstrate the existence of a viable alternative forum. Additionally, the court found that the costs of hearing the case in the United States, including the expenses of document translation and the difficulty of accessing evidence currently located within the Russian Federation, did not justify moving the case to an alternative forum. Finally, the court noted strong public interest factors in resolving the dispute in the plaintiff’s chosen forum, including the DC Circuit’s location in the nation’s diplomatic and political epicenter, the longstanding interest that the United States government has taken in the dispute, and the lack of regard that the Russian government has shown in allowing the archives to fall into disrepair. These factors, taken together, led the court to find that the defendants had failed to overcome the strong presumption in favor of the plaintiffs’ chosen forum.

Some news discussions of this case can be found here.  Opinio juris has this commentary.

The 2006 American National Report, published yearly by the The American Society of Comparative Law, is now in print.  The Society has as its laudable goal to "promote the comparative study of law and the understanding of . . .  private international law," and the recent Report is no exception.  In pertinent part, the Table of Contents is as follows: 

American Law in the 21st Century: U.S. National Reports to the XVIIth International Congress of Comparative Law
Edited by John C. Reitz and David S. Clark   

Preface by John C. Reitz & David S. Clark

American Participation in the Development of the International Academy of Comparative Law and Its First Two Hague Congresses by David S. Clark  

SECTION II: Civil Law, Procedure, and Private International Law

• New Developments in Succession Law by Ronald J. Scalise, Jr.
• Parenthood in a Time of Transition: Tensions between Legal, Biological, and Social Conceptions of Parenthood by David D. Meyer
• The Boundaries of Property Rights: La Notion de Biens by Alain A. Levasseur
• Estoppel and Textualism by Gregory E. Maggs 
• Pure Economic Loss in American Tort Law: An Unstable Consensus by David Gruning
• Contracts Subject to Non-State Norms by Symeon C. Symeonides
• New Experiences of International Arbitration in the United States by Christopher R. Drahozal
• Recognition of Same-Sex Legal Relationships in the United States by Peter Hay
• The Civil, Criminal and Disciplinary Liability of Judges by John O. Haley
• Access to Justice, Costs, and Legal Aid by James P. George
• Agriculture and the Polluter Pays Principle by Ved P. Nanda

Information on how to order a copy, or to obtain information about the Society's other publications, seminars and activities, is available on its website. 

There is a short note by Katherine Reece Thomas in Butterworths Journal of International Banking & Financial Law (B.J.I.B. & F.L. 2006, 21(10), 432-434) on "State immunity and sovereign debt developments". Here's the abstract:

Reviews case law on state immunity for sovereign debts, including: (1) Grovit v De Nederlandsche Bank on whether a state bank was immune from the jurisdiction of the court in a libel action; (2) AIG Capital Partners Inc v Kazakhstan on whether assets held by a third party bank in an account belonging to a central bank were immune from attachment; and (3) Svenska Petroleum Exploration AB v Lithuania (No.2) on whether the State Immunity Act 1978 s.3 permitted the registration or enforcement of a foreign arbitration award. Comments on public policy concerns.

There are a few case comments and articles on private international law in various practitioner updates this month in the UK. These include:

1. "Court authority over internet sites based abroad" E-Commerce Law and Policy (E.C.L. & P. 2006, 8(10), 6-7) by Hubert Best and Martin Soames. Abstract:

Examines courts' jurisdiction, and which laws should apply, where wrongdoing is committed by web based companies or individuals based in other countries. Provides examples from the US and other countries of the differing criteria used to determine courts' jurisdiction. Highlights the refusal of UK based software company, Spamhaus, who have a website but no physical presence in the US, to comply with a US District Court injunction and order for damages for listing a US bulk emailing company as a spammer. Suggests that international harmonisation of internet laws is unlikely to keep pace with internet development.

2. "Marriage and non-marital registered partnerships: gold, silver and bronze in private international law" Private Client Business (P.C.B. 2006, 6, 352-362) by Richard Frimston. Abstract:

Examines the extent to which private international law grants cross border recognition to civil and other non marital registered partnerships involving same sex couples. Reviews the definitions of "marriage", the countries in which same sex marriage is now lawful and the human rights implications of non recognition in EC Member States, highlighting the discrimination issues raised by the Family Division ruling in Wilkinson v Kitzinger. Considers the position regarding quasi marriages such as non marital registered relationships (NMRRs) or civil partnerships, including the registration requirements, the position where one party is a non national and the scope for mixed sex NMRRs.

3. "Stays of Proceedings: Foreign Arbitrations" Arbitration Law Monthly (Arb. L.M. 2006, Nov, 1-3). Abstract:

Examines the Commercial Court judgment in Abu Dhabi Investment Co v H Clarkson & Co Ltd on the jurisdiction of the court under the Arbitration Act 1996 s.9 to stay UK proceedings brought contrary to an arbitration clause which was subject to foreign law. Considers the terms of a joint venture to run an express liner service, focusing on whether the arbitration agreement in the memorandum of association and the shareholders' agreement applied to allegations that the contract was induced by misrepresentation. Examines the interpretation of arbitration clauses under United Arab Emirates law.

Symeon C. Symeonides (Williamette University, College of Law, USA) has just posted an article on SSRN entitled, "Party Autonomy and Private-Law Making in Private Intrernational Law: The Lex Mercatoria that Isn't". Here's the abstract:

This essay discusses “non-state norms” from the perspective of American conflicts law. Commonly referred to as the “new lex mercatoria,” these norms are drafted by various international or intra-national non-governmental organizations and are proposed for incorporation by contracting parties or for application by arbitrators, with or without the parties' prior consent.

Understandably, these norms are popular among many arbitrators who tend to place them on the same footing as law. Current U.S. arbitration law uncritically permits this treatment to the extent it does not allow judicial review of an arbitrator's choice of law (or non-law). The fact that, unlike the law of most countries, American law generally enforces pre-dispute arbitration clauses in consumer contracts and most employment contracts can further exacerbate the situation. In contrast, in contracts that are not subject to arbitration, American courts apply non-state norms only to the extent they have been expressly incorporated into the contract and only if their application would not displace non-waivable rules of the law that would otherwise govern the contract.

This essay applauds the latter position of American conflicts law but suggests that U.S. arbitration law should be reformed so as to provide needed protection to consumers, employees, and other presumptively weak parties.

You can download the article from here. Highly recommended.

The American Branch's 2006 International Law Weekend 2006 will be held on Thursday-Saturday, October 26-28, 2006, at the Association of the Bar of the City of New York (42 West 44th St, New York, NY). The theme this year is "The Evolving World of International Law."  The panels on private international law focus on the following topics:

Enforcing Foreign Judgments and Awards: Worlds Apart? Friday October 27, 2006, 9:00 am – 10:30 am 

This panel will compare the recognition and enforcement of foreign judgments and international arbitration awards. It will also discuss the proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. In particular, this panel will explore whether the new Hague Convention, if adopted, would bridge the present gap between the enforcement of foreign judgments and international arbitration awards.

• Chair: Julie Bedard, Esq., Skadden, Arps, Slate, Meagher & Flom LLP
• Panelists: Prof. George A. Bermann, Jean Monnet Professor of EU law & Walter Gellhorn Professor of Law, Columbia University School of Law
• John Fellas, Esq., Partner Hughes Hubbard & Reed LLP
• John L. Gardiner, Esq., Partner, Arps, Slate, Meagher & Flom LLP

From Owusu to Parlatino: European Union and Latin American Challenges to Forum Non Conveniens Friday October 27, 2006, 10:45 am – 12:15 pm 

In 2005, the European Court of Justice, in Jackson v. Owusu, ruled forum non conveniens to be incompatible with the United Kingdom’s obligations under the Brussels regulation. A continent apart, the Ecuadorian legislature in 1998 pronounced that, when an Ecuadorian filed an action abroad, the act of filing terminated the jurisdiction of the Ecuadorian courts. This legislation caused the Parlatino movement to urge the adoption of similar legislation throughout the Latin America. What is the future of the FNC in the light of these actions?

• Chair: Professor Michael Gordon Wallace, University of Florida Levin College of Law
• Panelists:Henri Saint Dahl, Esq., Adjunct Secretary General, Inter-American Bar Association
• Prof. Alejandro M. Garro, Columbia University School of Law
• Prof. Loukas Mistelis, Queen Mary, University of London
• Prof. Louise E. Teitz, Roger Williams University   

Recent Developments and Future Trends in Private International Law Friday October 27, 2006, 4:00 pm – 5h30 pm 

Harmonization and codification in the field of private international law has an increasing impact on the work of practitioners and the interests of their clients. This panel will address some of the most important developments and the interest of their clients. This panel will address some of the most important developments and ongoing projects taking place in UNCITRAL, UNIDROIT, the Organization of American States and the Hague Conference of Private International Law, including in such diverse areas as recognition and enforcement of judgments and choice of court agreements, secure finance, electronic commerce, consumer protection, service of process and taking abroad.

• Chair: David P. Stewart, Esq., Office of the Legal Adviser, U.S. Department of State & Co-chair, ABILA Extraterritorial Jurisdiction Committee
• Panelists:David A. Baron, Esq., McDermott Will & Emery LLP
• Prof. Amelia H. Boss, Temple University Beasley School of Law
• Prof. Ronald A.  Brand, University of Pittsburgh School of Law
• John M. Wilson, Esq., Legal Adviser, Department of International Legal Affairs, Organization of American States

All panels are open to students and all members of the ILA and cosponsoring organizations without charge. For others there is a fee payable at the door. 

For more information, please visit the web site of the American Branch of the International Law Association.

The aim of the Butterworths International Commercial Litigation Handbook is to be a repository of "United Kingdom primary and secondary legislation, with key European Community and international materials" relating to international commercial disputes before the courts in England, Wales and Scotland. Publication details and a table of contents can be found in the earlier news item.

The frenzy of legislative activity, both on a national and European level, in recent years means that Butterworths have had to squeeze a lot of information into a relatively small amount of space. The breadth of material the editorial team has managed to include in the Handbook, however, is to be welcomed; private international lawyers will find their needs almost comprehensively satisfied. The materials are grouped into five Parts: Statutes; Civil Procedure Rules; Statutory Instruments; EC Materials, and Other International Materials. Each Part is again sub-divided into several categories, so that Jurisdiction and Foreign Judgments are dealt with separately from Applicable Law, as well as Arbitration, Carriage by Sea, Cross-Border Insolvency, Service of Documents, and so on.

This grouping of legislation can feel somewhat counter-intuitive if one is focusing on a particular area: the Contracts (Applicable Law) Act 1990, for example, can be found at para. [182], whilst the 1980 Rome Convention to which the 1990 Act gives effect doesn't appear until para. [3205]. Fortunately, the publishers have preempted this problem by using coloured "tabs" for each Part, which appear both on the pages themselves and, crucially, when the Handbook is shut, thus giving you a good idea where the relevant text is located at any given time.

Another key feature is the inclusion of "Notes" that appear periodically throughout every Act or Instrument. These often simply cite changes to the legislative text, the date on which the relevant legislation came into force, or helpfully cross-reference to another part of the Handbook. More significantly, they also occasionally provide updates on the possible future of particular legislation – the note appended to the Contracts (Applicable Law) Act 1990, for instance, cites the proposed "Rome I" Regulation, and where on the internet you can find it, along with the UK's current opt-out position. The only limitation to such an excellent service is a by-product of the chapter structure implemented (as noted above): the note appended to the 1980 Rome Convention, at para. [3205] in the EC Materials section, makes no mention of the proposed "Rome I" Regulation. This would perhaps be where one would expect to find it, rather than alongside the 1990 Act in the Statutes section of the Handbook. This is, however, a small point – practitioners and academics familiar with the text of the legislation will find little difficulty in extracting the pertinent information from the Handbook.

The Handbook also includes a number of Tables, in Part V, on Other International Materials. These identify, inter alia, the date on which the various Brussels and Lugano Conventions came into force, as well as the Brussels I Regulation, in each Member State of the EC, and the complete list (and entry into force dates) of those countries party to the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards. The same service is also repeated for the Service Regulation, the 1965 Hague Convention on Service Abroad of Judicial Documents, and the 1970 Hague Convention on the Taking of Evidence Abroad. These tables represent an impressive, and useful, collection of statistics that will appeal to practitioners and academics alike.

Overall, the Handbook is a well put-together, comprehensive sourcebook of key legislation in the field of international commercial litigation. It is an essential text for practitioners who want all the relevant materials contained within one volume, and a useful addition to any university law library.

Butterworths International Commercial Litigation Handbook can be bought from the CONFLICT OF LAWS .NET secure, Amazon-powered bookshop.

Butterworths have just published the new edition of the International Commercial Litigation Handbook, edited by Andrew Dickinson; Roger Baggallay; Graham McBain; and Laurence Murphy QC.

Butterworths International Commerical Litigation Handbook brings together in a single volume key UK, EC and international materials which are essential for litigation and arbitration lawyers, as well as criminal and commercial lawyers generally.

This new edition is fully updated and expanded to include ADR and mediation materials. It also includes the text of the Brussels and Lugano Conventions on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the Rome Convention on the Law Applicable to Contractual Obligations, together with their interpretative reports. In addition, Tables summarising the ratification, and entry into force of these Conventions are also included. The handbook contains UK statutes and statutory instruments on arbitration and the texts of the 1927 Geneva and 1958 New York Conventions on Arbitral Awards.

Other legislation included (together with the relevant Conventions) relate to international transport (road, rail, air, sea) and a variety of other areas including International organisations, state immunity, trusts, evidence, mutual legal assistance, limitation periods and currency.

Contents:

• Part I – Statutes; A. Jurisdiction and Foreign Judgments; B. Applicable Law; C. International Arbitration; D. International Carriage: Road and Air; E. International Carriage: Rail and Sea; F. State Immunity and International Organisations; G. Insolvency; H. Evidence; I. Other;
• Part II – Civil Procedure Rules; Selected parts of the Civil Procedure Rules (SI 1998/3132) and selected Practice Directions;
• Part III – Statutory Instruments; A. Jurisdiction and Foreign Judgments; B. Applicable Law; C. International Arbitration; D. International Carriage: Road and Air; E. International Carriage: Rail and Sea; F. State Immunity and International Organisations; G. Insolvency; H. Other;
• Part IV – EC Materials; A. EC Treaties; B. Jurisdiction and Foreign Judgments; C. Applicable Law; D. Insolvency; E. Service of documents; F. Evidence; G. Other;
• Part V – Other International Materials; A. Jurisdiction and Foreign Judgments; B. Applicable law; C. International Arbitration; D. International Carriage (road and air); E. International Carriage (rail and sea); F. State Immunity; G. Insolvency; H. Service and Evidence

Price: £118.00. ISBN: 9781405718363. Available from Butterworths and Amazon.

CONFLICT OF LAWS .NET will be reviewing this text shortly; check back regularly for updates.

• Maccaba v Lictenstein [2006] EWHC 1901 (QB)

The court held that, for there to be an arbitration agreement, there had to be an agreement evidenced in writing between the two prospective parties to the arbitration. In the instant case, no such enforceable agreement as argued for by the applicant had been proved on the evidence placed before the court.

• D. Stringer, "Choice of Law and Choice of Forum in Brazilian International Commercial Contracts: Party Autonomy, International Jurisdiction, and the Emerging Third Way" (2006) 44 Columbia Journal of Transnational Law 951-999.