Journal of Private International Law: Issues 1 and 2 of 2024
The latest issue of the Journal of Private International Law (Volume 20, Issue 2) features eight articles.
Reid Mortensen & Kathy Reeves, The common law marriage in Australian private international law, 249-279
The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”.
There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so.
Stephen G. A. Pitel, The statutory assertion of exclusive jurisdiction, 280-301
Statutes that create or codify causes of action sometimes contain jurisdiction provisions. The wording of these provisions can differ widely. Some of them purport to give exclusive jurisdiction to a specific court. In the private international law context, this raises the question of whether such a provision precludes the courts of any other jurisdiction from hearing a claim under the statute. This article analyses how these provisions have been interpreted. It focuses on Canadian law but draws on American, Australian and New Zealand jurisprudence. The article contends that the Canadian jurisprudence is uneven and insufficiently rigorous. Several of the decisions cannot be reconciled with each other, such that some must be regarded as incorrect. Several of the decisions fail to identify the important questions that are posed by alleged assertions of exclusive jurisdiction and also fail to answer them. Moving forward, courts should treat the claim that such a provision deprives a court of jurisdiction with caution and even scepticism.
Charlotte Wendland, Will substitutes in EU private international law: deathbed gifts and contracts for the benefit of a third party upon death, 302-327
Will substitutes exist in many legal systems, including those of Member States of the European Union. Two of these will substitutes are deathbed gifts and contracts for the benefit of a third party upon death. Both instruments are located at the intersection of succession law and contract law and are therefore difficult to characterise for the purposes of private international law. One could either characterise them as succession instruments in the sense of the EU Succession Regulation or as contracts in the sense of the Rome I Regulation. This article analyses the different options on how to characterise these will substitutes by taking into account the wording of both Regulations, comparative analysis of the substantive law, the likelihood of adaptation and the recent judgment by the Court of Justice of the European Union (CJEU) on this matter.
Jie (Jeanne) Huang, Can private parties contract out of the Hague Service Convention?, 328-36
Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.
Lydia Lundstedt, The law applicable to the right of priority from a European perspective, 364-390
The right of priority established in the Paris Convention for the Protection of Industrial Property allows a patent applicant to claim the filing date of a first application for any subsequent applications for the same invention filed within twelve months in another Paris Convention Contracting State. This right may be claimed by the person who has filed an application or their successor in title. If priority is not validly claimed, patent applications and patents relying on the right may be rejected, revoked or invalidated. National and regional rules governing who may claim priority, whether a priority right may be divided or shared, whether it may be transferred independently of the priority application and the rights to the invention, and the requirements for a valid transfer differ from country to country. The issue of whether priority has been validly claimed may therefore depend on which country’s law applies, which depends on the characterisation of the issues. The aim of this article is to provide a European perspective on the law applicable to the right of priority.
Amy Held, The modern property situationship: Is bitcoin better off (left) alone?, 391-436
In modern private international law (PIL), property and situs apparently go hand in hand in an established PIL monogamy to which there tends to be a collective commitment for all PIL aspects of a cross-border dispute for all PIL subcategories of property objects. This article argues that mechanistic deference to such apparent property-situs monogamy as an overarching rule in the PIL of property is not only misconceived; but is positively impeding progress in the modern PIL debates surrounding property rights in modern decentralised objects such as bitcoin. It therefore examines the discrete justifications for the situs rules to show that the apparent property-situs monogamy is actually the cumulative effect of a wide variety of situation-specific considerations in what is really a property-situs situationship. Hence, from an analysis of the situs rules, and the principles underpinning international jurisdiction and applicable law more generally, it suggests alternative property PIL solutions to the intractable problems posed by decentralised phenomena based on policy considerations rather than continued focus on the property object itself as the “natural seat” of a property relationship.
Jim Yang Teo, Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution, 437-472
Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.
Chibike Amucheazi, Chidebe Matthew Nwankwo & Fochi Nwodo, A reassessment of the challenges of enforcement of foreign judgments in Nigeria: the need for legislative reform to ease business, 473-499
Enforcement of foreign judgments has significant relevance in this era of increased international investments and commercial relations across borders. Focusing on Nigeria as the central jurisdiction of analysis, this paper takes the position that rules of private international law form an often understated yet important aspect of the governance system of a country often measured by the Ease of Doing Business (EDB) ranking of the World Bank. This paper further argues that central to opening up the economy and inviting FDI into the country, the obvious matter of the inconsistency in the application of the foreign judgment enforcement statutes ought to be settled so as to create determinacy in Nigeria’s legal system – a potential attraction for foreign investors who appreciate predictability in the laws of a host country. It recommends the review and adoption of the Foreign Judgment (Reciprocal Enforcement) Act 1990 in order to quell the circumspection of the investor and trade participant due to uncertain legislation.
The previous issue of the journal (Volume 20, Issue 1) featured nine articles.
Alex Mills, Sustainability and jurisdiction in the international civil litigation market, 1-25
The sustainability of the global economy, particularly in response to the concerns of climate change, is an issue which impacts many different aspects of life and work around the world. It raises particular questions concerning globalised industries or markets which depend on long distance transportation for their function. This article takes as its focus international civil litigation – the judicial resolution of cross-border disputes – as a particular example of a globalised market in which sustainability considerations are presently neglected, and examines how this omission ought to be addressed. It proposes a modification to English law which aims to ensure that jurisdictional decisions by the English courts take into account their environmental impact – that is to say, the environmental impact of the selection of a particular forum. The article also considers the implications of adopting this change on the position of the English courts in the global litigation marketplace, arguing that the effects are likely to be limited, and it could have an incidental benefit in promoting the development and adoption of communications technologies in judicial dispute resolution.
Saloni Khanderia, The law applicable to documentary letters of credit in India: a riddle wrapped in an enigma?, 26-67
Despite significantly fostering international trade in India, letters of credit and the determination of applicable law in cross-border disputes arising from the same have received negligible attention from lawmakers. The Indian Supreme Court, too, has failed to use its power to mould the law despite regularly being confronted with disputes on this subject. This paper demystifies India’s conflict of law rules on the law governing disputes on letters of credit by examining relevant judicial trends. It highlights rampant references to the lex fori – and explores reasons why it is considered the “proper law” by being the country possessing the closest and most real contractual connection. It anticipates a “ripple effect” prompting parties to evade Indian courts through choice-of-court agreements preferring a foreign forum or to avoid business with Indian traders insisting on such payment mechanisms. Accordingly, it identifies the need for coherent rules and suggests some solutions that Indian lawmakers should consider.
Frederick Rielander, The EU private international law framework for civil disputes concerning credit ratings: exploring the status quo and prospects of reform, 68-94
This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors’ access to justice in disputes with CRAs.
Tony Ward and Ann Plenderleith Ferguson, Proof of foreign law: a reduced role for expert evidence?, 95-116
This article considers the position as to proof of foreign law in the English courts in light of the case of FS Nile Plaza v Brownlie [2021] UKSC 45 and the 11th edition of the Commercial Court Guide. We discuss the “old notion” of proof by expert witnesses, the extent to which recent developments displace the traditional role of the expert and enhance that of the advocate, and the dicta in Brownlie concerning the presumptions of similarity and continuity and judicial notice. While welcoming the greater flexibility in the way foreign law can be put before the English court, we argue that the use of oral expert evidence and cross-examination will remain important in at least two types of case: those where the issue of foreign law is complex or novel, and those where the English court does not just need to ascertain the “correct” interpretation of foreign law, but rather predict whether a foreign court would in reality provide appropriate relief in relation to the matter before the court.
Olivera Boskovic, Extraterritoriality and the proposed directive on corporate sustainability due diligence, a recap, 117-128
Tortious actions brought against companies for the violation of human rights and/or environmental damage have raised important issues of jurisdiction and choice of law. Damage caused abroad by subsidiaries of European companies or the possibility of bringing actions against non-European companies for damage caused outside of the European union have been referred to in terms of extraterritoriality. This paper examines these issues in relation to the proposed directive on corporate sustainability due diligence.
Leonard Lusznat, The Brussels IIb Regulation – most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction, 129-153
The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.
Olga Bobrzynska and Mateusz Pilich, Cases of cross-border child abduction in times of populism: a Polish perspective, 154-182
This article analyses the case law in Poland on matters of the return of children wrongfully removed or retained within the framework of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction during the period of the “populist” government (2020–2022). It takes account of the legislative and judicial developments in the EU and the European Court of Human Rights and of the aims of the Hague Convention. It seeks to ascertain whether the influence of populist reforms and politicisation of the courts has become apparent in the case law of the Polish Supreme Court on international child abduction cases.
Ye Shanshan and Du Tao, The jurisdiction of China International Commercial Court: substance, drawbacks, and refinement, 183-213
The wave of setting up international commercial courts has emerged internationally. Following the trend, China established the China International Commercial Court (CICC) in 2018. The CICC exercises consensual jurisdiction and non-consensual jurisdiction over international commercial disputes, and has jurisdiction to support international commercial arbitration. This article analyses the CICC’s criteria for determining international commercial disputes and the specific requirements for each type of jurisdiction based on the relevant provisions and judicial practice of the CICC. In addition, this article identifies the drawbacks of the CICC’s current jurisdiction system, and provides several suggestions for refinement, including the modification and clarification of the criteria for determining the internationality and commerciality of disputes, the removal of restrictions on jurisdiction agreements, the clarification of substantive standards for case transfer, and the expansion of its jurisdiction to support international commercial arbitration.
Gulum Bayraktaroglu-Ozcelik, When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts, 214-247
The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.