Tag Archive for: harmonisation

OUT NOW!! New Book on Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons (Stellina Jolly and Saloni Khanderia eds)

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Hart Publishing, Oxford, UK is proud to announce the release of Private International Law in BRICS: Convergence, Divergence, and Reciprocal Lessons co-edited by Dr. Stellina Jolly, South Asian University, Delhi, India, and Professor Saloni Khanderia, O.P. Jindal Global University, Sonipat, India. The book forms part of Hart’s prestigious Private International Law Series with Professor Paul Beaumont, University of Stirling, as its Series Editor.

Authored by leading scholars and practitioners in private international law, the chapters draw on domestic legislation and case law interpretations in each of these emerging economies. They cover a wide array of topics, including contractual and non-contractual obligations, choice of court agreements, and personal matters such as marriage, divorce, matrimonial property, succession, and surrogacy—all within the context of increased cross-border movement of people.

As the title suggests, this book explores the intricate landscape of private international law within the BRICS countries—Brazil, Russia, India, China, and South Africa. Divided into six sections, each part of the book offers a thematic analysis of core private international law-related questions and an in-depth examination of the reciprocal lessons each BRICS country can share concerning each of three core conflict of law issues – the international jurisdiction of courts, the applicable law and the effectiveness of foreign decisions (both judgments and arbitral awards) overseas.

This book serves as an invaluable comparative resource for governments, legislators, traders, academics, researchers, and students interested in the intricate legal dynamics at play within the BRICS nations. With the BRICS countries collectively representing around 42% of the world’s population and approximately 23% of global GDP, the need for enhanced legal cooperation and harmonization is more critical than ever. Over the past decade, cross-border interactions within the BRICS bloc and beyond have escalated significantly. However, the diversity in political, legal, economic, and social structures, coupled with the lack of geographical proximity and historical connections, has posed challenges to effective cooperation and the ability of BRICS to play a proactive role in global governance. The 15 BRICS Summits held between 2009 and 2023 have primarily focused on economic cooperation, particularly in trade, investment, foreign affairs, and innovation. While these areas are crucial, they cannot be viewed in isolation. Increased trade and cooperation inevitably lead to the movement of persons, goods, and services across national boundaries, raising important legal questions. For instance, economic cooperation that facilitates the movement of people also impacts personal relationships. Scenarios such as marriage, divorce, adoption, surrogacy, and inheritance across borders create complex legal challenges that require a robust understanding of private international law. Will a marriage or divorce be recognized in the home country? How will the nationality of a child born through surrogacy or adopted abroad be determined? These questions, though critical, have not yet been thoroughly examined in the context of BRICS.

Recognizing this gap, our book seeks to explore and analyze the role of private international law in fostering enhanced cooperation among BRICS countries. In pursuit of its objectives, the project draws lessons from various multilateral and supranational instruments operating under the HCCH – Hague Conference on Private International Law and in the European Union, renowned for pioneering clear, predictable rules to regulate international disputes through the unification of laws.

Details of the book as well as purchase options can be found here!

Choice of law in commercial contracts and regulatory competition: new steps to be made by the EU?

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The recently published study titled ‘European Commercial Contract Law’, authored by Andrea Bertolini, addresses the theme of regulatory competition. It offers new policy recommendations to improve EU legal systems’ chances of being chosen as the law governing commercial contracts.

 

The Study’s main question

The European Parliament’s Committee on Legal Affairs has published a new study authored by Andrea Bertolini, titled ‘European Commercial Contract Law’ (the ‘Study’). The Study formulates the main question as follows: ‘why the law chosen in commercial contracts is largely non-European and non-member state law’. The expression ‘non-European and non-member state’ law is specified as denoting the legal systems of England and Wales, the United States, and Singapore, and more generally, common law legal systems. The Study states:

It is easily observed how most often international contracts are governed by non-European law. The reasons why this occurs are up to debate and could be quite varied both in nature and relevance. Indeed, a recent study by Singapore Academy of Law (SAL) found that 43 per cent of commercial practitioners and in-house counsel preferred English law as the governing law of the contracts. Read more

III International Seminar on Private International Law

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The III International Seminar on Private International Law, coordinated by Professors José Carlos Fernández Rozas and  Pedro de Miguel Asensio, took place at the Faculty of Law, Universidad Complutense de Madrid, on the 5th and 6th February. The Seminar, entitled “Self-regulation and unification of international contract law”, was divided into five sessions dedicated to offering a different perspective on the leitmotif of the encounter. Each session involved a general introduction, followed by communications from researchers and professionals of law. The seminar was rich in contents, and also a good opportunity for the meeting and discussion of academics and lawyers from different parts of Spain, as well as from European and Latin American countries.

As was only to be expected, the recent Rome I Regulation was the main topic of the first session. The general introduction was given by the Spanish representative in the negotiations, Professor Garcimartín Alferez, who highlighted the main features of the text and explained the reasons that led to them. His intervention was followed by five papers on specific aspects of the new instrument. First, Professor Asin Cabrera, from La Laguna, focused on International maritime labour contracts, and in particular on the difficulties in determining the law applicable to them with the criteria laid down by art. 8 of the Rome I Regulation. Professor Gardeñes Santiago, from Barcelona (Universidad Autonoma), also referred to Art. 8 of the Regulation, this time from a general point of view, regretting the missed opportunity to change the orientation of the article: that is, correcting its logic of proximity in order to transform it into a rule with substantive guidance. After him, Rosa Miquel Sala, from Bayreuth, presented art. 7, which incorporates insurance contracts into the Regulation. Alberto Muñoz Fernandez, from the University of Navarra, reflected on legal representation as a phenomenon partially excluded from the Regulation. Finally, Paula Paradela Areán, from Santiago de Compostela, summarized the Spanish courts practice on the Rome Convention throughout its 15 years of life.

The second session, entitled “Substantive Unification and international trade: universal dimension”, was held on Thursday afternoon. Professor Sánchez Lorenzo, from Granada, took charge of the general introduction. He was followed by Professor M.J. Bonell, from La Sapienza (Italy), who focused on the UNIDROIT principles and their possible contribution to a global law of contracts. Professor Garau Juaneda, from the University of Palma de Mallorca, exposed the problems of the retention of title in today’s international trade. Professor Espiniella González, from the University of Oviedo, explained the dual role of the place of delivery in international contracts: for the determination of the applicable law, and as a criterion of international jurisdiction. Speaking from his own experience in international arbitration, Alfedro de Jesús O. referred to the arbitrator’s role as an agent to promote internacional self-regulation. Professor Otero García, from the ComplutenseUniversity of Madrid, referred to standards in international trade regulation, highlighting the efforts undertaken by stakeholders in their harmonization. Professor Carmen Vaquero from Valladolidtalked about the legal treatment of the delay to comply withobligations. The session ended with the intervention of Professor Boutin, from Panama, with an entertaining account of the history of the freedom of choice of the applicable law in Latin American countries.

The first session on Friday morning dealt with international unification from a European perspective. The general introduction, given by Professor Pedro de Miguel, discussed the need for standardization at the European level in parallel to the UNIDROIT Principles; his presentation brought up points like the scope of standardization and how it could be carried out. Professor Leible, of Bayreuth, addressed the question of whether the common frame of reference can be chosen by the parties to a contract as applicable law: a question that raised an interesting debate between Professor Leible and Professor M.J. Bonell. Marta Requejo Isidro, from Santiago de Compostela, made reference to the relationship between the harmonization of consumer protection through Directives, and art. 3.4 of the Rome I Regulation. Professor D. Pina, from Lisbon, then alluded to the influence of competition rules on private contracts, and finally, Cristian Oró from Barcelona (Universidad Autonoma) reflected on art. 9 of the Rome I Regulation and its implications for competition rules as mandatory provisions.

The fourth session, on the new trends on international contracts, also took place on Friday morning. The general introduction this time was presented by Professor Forner Delaygua (University of Barcelona). He was followed by A. Boggiano, from Buenos Aires, who recalled the traditional dispute centered on the choice of lex mercatoria as the law applicable to an international contract. Professor Juan José Álvarez Rubio from the  University of País Vascospoke about international maritime transport in the Rome I Regulation, indicating the continuity with respect to the Rome Convention, and highlighting divergences from the UN Draft of 2007. Professor Nicolás Zambrana Tévar, from University of Navarra, presented some of the main issues that determine the character of the indirect holding system; the exposition paid special attention to the transaction mechanism of financial instruments. José Heriberto García Peña, from the Instituto Tecnologico deMonterrey, closed the meeting with a paper centered on the difficulties in determining the law applicable to on-line contracts, especially in the absence of choice of law.

The final session, held on Friday afternoon, focused on Latin America, with the attendance of Professor Lionel Perez Nieto, from the UNAM of Mexico, who explained the evolution of international uniform (conventional) law in Latin American countries, differentiating the experience of Mexico and Venezuela from that of the other States. Professor Roberto Davalos, from Havana, made an entertaining description of the cultural and legal features of China, emphasizing those that, from his experience, make it difficult to contract with partners from this Asian country. Hernán Muriel Ciceri, from Sergio Arboleda University in Bogota, offered a comparison between the Rome I Regulation and the Convention of Mexico of 1994. Finally, Iñigo Iruretagoiena Aguirrezabalaga (University of País Vasco) referred to investment arbitration, underlining the characteristics that make it different from the paradigm of contractual arbitration.

The seminar was brought to a close by Professor Ms Elisa Pérez Vera, now a member of the Spanish Constitutional Court. All the presentations and papers will soon be published in the Anuario Español de Derecho Internacional Privado.

Many thanks to Paula Paradela Areán and Vesela Andreeva Andreeva.