Uniform Law Review – Issue 1 of 2021
The most recent issue of the Uniform Law Review contains a number of articles that are interesting from a PIL perspective.
The first, authored by Michiel Poesen, has the provocative title Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention (abstract here). It is basically a critique of the rigid application of Art 7 Brussels I bis Regulation by the CJEU. The author claims that the Hague Judgments Convention would not follow this approach but rather require a more flexible assessment of jurisdiction through its jurisdictional filters. He points in this context to Art 5(1)(g) Hague Judgments Convention, which makes indirect jurisdiction for contractual claims dependent on the caveat that “activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. This formula is indeed clearly inspired by the minimum contacts test under U.S. constitutional law. Still, in Art 5(1)(g) it is combined with a performance-of-the-obligation test, which is strongly reminiscent of Art 7(1) Brussels I bis. Rather than “murdering” special jurisdiction, the Hague Convention thus provides for a compromise of the EU and U.S. approaches, with the former defining the core and the latter the outer limit of contractual jurisdiction.
The second article, written by Garth J Bouwers, is titled Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law (abstract here). He points to an interesting Chinese practice direction which assumes a tacit choice of the lex fori where none of the parties has pleaded foreign law. This reminds of the approach under French law (for recent case-law and analysis see here and here). In the analysis of the other jurisdictions examined (Hong Kong, Japan, South Korea, Singapore), this possibility is not mentioned. It seems that the latter rather rely on an ex officio application of foreign law. The author thankfully describes their methods in detail.
Third, Johanna Hoekstra examines the Political barriers to the ratification of international commercial law conventions (free access to full article here). She takes the Swiss proposal to reform the CISG as an example of the obstacles that legal uniformisation may encounter. To this end, she relies on insights from political science, which she applies to the specific context of legal harmonisation. Her conclusion that “international private law can have low political priority” is sad but probably true. Equally important is her observation that lobbying and interest groups may change this setting.
There are also three articles written in French, one on the liability of an arbitrator for the damages caused by preliminary measures (abstract here), and two on legal harmonisation in West Africa under the auspices of OHADA (here and here).
A further article by the author of the present post is entitled National Blockchain Laws as a Threat to Capital Markets Integration (full free access here). It compares recent private law reforms concerning digital assets in France, Liechtenstein, the UK, the US (U.C.C.) and the (deviating) law of Wyoming. The comparison also encompasses the conflict-of-laws rules for the blockchain in these systems.
Of special interest is a presentation of the new Uruguay Act on PIL (Ley general de derecho internacional privado) (abstract here). The Act allows the choice of non-state law to the extent that it is generally recognised on the international level, neutral and balanced, and emanates from an international organisation to which Uruguay is a member (Article 45). Also of interest is the special place the Act gives to international commercial law (Article 13), which is reminiscent, but not identical to, old musings about the existence of a “lex mercatoria“.
Finally, this rich treasure of PIL insights also informs about new developments in the law of secured transactions in China (abstract here) and UNCITRAL’s 53d Commission session (abstract here).
