Developments in PIL Journals Scholarship

Journal du Droit International: Issue 4 of 2022

The fourth issue of the Journal du droit international for 2022 has just been released. While it contains a number of case notes relating to private international law issues, it is mainly conceived as a tribute to the late Emmanuel Gaillard and publishes a number of contributions to the conference Emmanuel Gaillard Theory in Action which held last spring in Paris (see also the announcement on this blog).

Most of the articles discuss the contributions of Gaillard to international arbitration.

One of them, however, discusses more specifically the contribution of Gaillard to private international law (by Jean-Michel Jacquet, IHEID Geneva). The English summary reads:

The contribution of Emmanuel Gaillard’s thought to the law of international arbitration has been considerable. Throughout his career, Emmanuel Gaillard has sought to establish the philosophical foundations of international arbitration. He has also contributed to search of the most appropriate rules and solutions to the many questions raised by international arbitration. In this perspective, the question of the role played by private international law arises. In Emmanuel Gaillard’s thinking this role differs according to the angle from which international arbitration law is considered. When it comes to understanding the arbitral phenomenon, the proposals of private international law do not seem to provide the best insight into the question. When it comes to understanding the arbitral process, private international law is back in the picture. But the arbitrator’s point of view cannot be that of a judge. Thus, to a certain extent, a private international law of the arbitrator is developing. But the latter must also take into account the « private international law of others ».

Also of interest for the readers of this blog might the contribution of Eric Loquin (University of Dijon) on the arbitral legal order. The English summary reads:

This article aims to analyse the concept of an arbitral legal order as conceived by Emmanuel Gaillard in his famous special course given at The Hague Academy of International Law in 2007, entitled « Legal Theory of International Arbitration ». This concept is based on the observation that the binding nature of international arbitration is not anchored in a single state legal order, but in a third one, characterised as the arbitral legal order. This legal order was intended and created by the international community of states who were favourable to the resolution of international commercial disputes through arbitral, and whose laws have recognised the autonomy of arbitration towards state legal orders.

The article explores the objections and discussions that have been initiated by this concept regarding both its nature and its existence. One view would be that the arbitral legal order results from the private nature of arbitration rather than the actions of the states, thus making arbitration a non-state phenomenon but a legal order subject to natural law and freed from positive law. Another view of international arbitration would deny that it exists as an autonomous legal system and would consider it as a tool created by the states to be used by private transnational legal orders as their adjudicating body (such as the international community of merchants’ legal order, or the transnational sports legal order). International arbitration would thus be used as an instrument for the coordination of these legal orders and that of the international community of states.

Finally, the issue offers one article unrelated to the conference in which Dr. Estelle Fohrer-Dedeurwaerder (University of Toulouse) explores the effects of Brexit on the recognition and enforcement of English judgments on both sides of the channel (L’effet du Brexit sur la reconnaissance et l’exécution des jugements des deux côtés de la Manche). The English summary reads:

The Brexit has put an end to any judicial cooperation in civil and commercial matters between the UK and the EU as the Trade and Cooperation Agreement contains no provision on this point. Despite the desire of some to re-implement the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the steps taken by the UK to accede to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, neither of these two conventions will find application in Anglo-European relations. However, judicial cooperation between the United Kingdom and the Member States is not excluded if bilateral conventions concluded before the 1957 Treaty of Rome (or before accession to the EEC or EC), such as the 1934 Franco-British Convention, become fully effective as a result of Brexit. Their conciliation with the Treaties having the same object, in particular with the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, will then arise, unless States refuse to revive them, in which case their common law will be implemented. However, the latter scenario is not desirable if the density of socio-economic exchanges between France and the United Kingdom is to be maintained.

The table of contents of the issue can be accessed here.

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