Archive for category: Articles

Legal Studies, the journal of the Society of Legal Scholars (SLS), has published an interesting article by Jared Foong on a recent case from Singapore concerning the recognition of foreign solvent proceedings under the UNCITRAL Model Law on Cross-Border Insolvency.

Although this article concerns a development under Singaporean law, it will be of interest to the readers of the blog given that the Model Law has been adopted in many, including European, jurisdictions.

The article is titled Recognising Foreign Solvent Proceedings under the UNCITRAL Model Law on Cross-Border Insolvency: The Singaporean Approach in Ascentra Holdings, Inc v SPGK Pte Ltd [2023] 2 SLR 421:

The article discusses the Singapore Court of Appeal decision in Ascentra Holdings Inc v SPGK Pte Ltd which held that foreign proceedings concerning solvent companies may be recognised under the Singapore statute which adopted the UNCITRAL Model Law on Cross Border Insolvency 1997. It compares the ruling with the contradictory decision in .

The Law Quarterly Review has published an interesting article by Richard Garnett and Ying Khai Liew (Professors at Melbourne Law School), titled Trusts Jurisdiction Clauses: An Analysis. The article can be found in (2025) 141 LQR 357-375 and on SSRN.

While jurisdiction clauses, or choice of court agreements, are increasingly utilised in trust deeds, the common law rules which apply to these clauses are far from clear. In comparison to the contractual context, the use of jurisdiction clauses in the trusts context is relatively more recent, and the relevant authorities are sparse. This situation is a source of concern, since the present state of the law detracts from the very reason for which a jurisdiction clause is frequently used in modern trusts practice, namely, the attainment of certainty. Therefore, it is important that this area of law is properly analysed, and its principles carefully stated.

This article begins first by discussing the contractual position, since the rules which apply in that context are often adopted, adapted, or taken as a point of comparison in trusts cases. It then discusses the three relevant questions which arises in relation to jurisdiction clauses in the trusts context, namely the existence, scope, and enforceability of a jurisdiction clause. The final section concludes the article.

Louise Ellen Teitz (Roger Williams University School of Law) has posted Harmonizing Private International Law and International Private Law Through Softlaw on SSRN.

The abstract of the article, a homage to Symeon Symeonides and set to be published in the Willamette Law Review, reads as follows:

This article, prepared for a celebration of the career of Professor Symeon Symeonides, the world’s leading Conflict of Laws expert, uses Symeon’s work as a point of departure to consider what role hardlaw and softlaw play in creating and harmonizing private international law.

The article looks at “softlaw” generally and then examines several examples of its use in the harmonization of private international law and international private law. I consider the critical questions of whether softlaw can lead to harmonization and whether it can achieve this goal without hardlaw instruments and treaties. When is softlaw the goal in itself and when is it serving as the second-best alternative? And how does its role and significance differ among legal systems? Does it serve a different role in developing US law than in other legal systems (such as with ALI Restatements and Uniform Law)?

Looking at several areas and examples of softlaw instruments, certain patterns and themes emerge that answer some questions but raise new ones as well. One area where softlaw (and sometimes non-State law) seems to thrive is in connection with conduct that is privately regulated, especially in the area of dispute resolution. We see many examples in the area of cross-border arbitration and mediation and other areas where parties incorporate the softlaw into their contracts and these softlaw instruments create industry norms—UNIDROIT Principles; UNCITRAL Arbitration Rules; and ICC Incoterms and UCP.  Another area for softlaw is where there are evolving norms and the law is still unsettled, as with intellectual property, the internet, cyberspace—here softlaw lets us find common values and work towards a consensus and towards harmonization. One also sees softlaw principles, such as the UN Ruggie Principles, leading to emerging consensus on business and human rights and business and sustainable development, even to hard law instruments such as European and national regulations. One finds softlaw also where an area of law is in flux and there is not enough consensus but the softlaw serves as a placeholder until the next step can occur, as we have seen with the UNCITRAL work in Online Dispute Resolution (ODR), and with some of the softlaw gap-fillers to conventions such as Hague Conference Guides to Good Practice. The article concludes with a consideration of the obstacles that remain regarding how to quantify the success of softlaw, how to harmonize softlaw with substantive law, and how to reach a finalized legal instrument.

This post was written by Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University. It builds on an article titled ‘The Anti-SLAPP Directive in the Context of EU and Dutch Private International Law: Improvements and (Remaining) Challenges to Protect SLAPP targets’, featured in issued 4 of 2024 of Nederlands Internationaal Privaatrecht. Apart from providing an overview of the main findings of the article, the post criticises the lack of transposition of Article 17(1) of the Anti-SLAPP Directive in the Dutch legislation aimed at implementing the Directive, as proposed by the Dutch government.

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The right to freedom of expression and information is increasingly threatened worldwide by lawsuits aimed at silencing those who engage in public debate, such as journalists, academics and NGOs. To protect targets of strategic lawsuits against public participation (SLAPPs), the Anti-SLAPP Directive (EU) 2024/1069 entered into force on 6 May 2024. This Directive is due to be transposed in the EU Member States (except Denmark) by 7 May 2026. However, the Directive has already been invoked in Dutch courts by Greenpeace International, an NGO based in the Netherlands, against the US-based company Energy Transfer.

For more on the legislative process of this Directive, see Marta Requejo Isidro’s posts in 2021 and 2022, and Pietro Franzina’s blog post in 2023.

Broad Definition of ‘Cross-border Implications’

The Anti-SLAPP Directive applies to “manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications brought against natural and legal persons on account of their engagement in public participation” (Article 1). According to Article 5(1), the condition of ‘cross-border implications’ is met “unless both parties are domiciled in the same Member State as the court seised and all other elements relevant to the situation concerned are located only in that Member State”. The mere fact that the SLAPP target has published online appears to constitute cross-border implications.

PIL Implications of Procedural Safeguards 

According to Article 11 of the Anti-SLAPP Directive, Member State courts may dismiss claims against public participation if they are manifestly unfounded. With respect to the burden of proving that the claim is well-founded, Article 12 provides legal certainty for SLAPP targets by reversing the burden of proof regardless of the applicable law. However, Member States may interpret the undefined concept of ‘manifestly unfounded’ differently on the basis of their substantive law. The protection of SLAPP targets may therefore vary, particularly where a claim against a SLAPP target is based on an infringement of personality rights.

Furthermore, the ‘early dismissal’ mechanism does not effectively address the problem of abusive multi-state litigation. In particular, if the claim against the SLAPP target is based on online defamation or copyright infringement, the CJEU’s case law related to the special jurisdiction rule of Article 7(2) of the Brussels I bis Regulation facilitates abusive multi-state litigation.

Various scholars have therefore proposed an alternative jurisdictional approach for defamation cases (see Borg-Barthet, Lobina, Zabrocka, The Use of SLAPPs to Silence journalists, NGOs and Civil Society, p. 5, 42; Hess, Reforming the Brussels Ibis Regulation: Perspectives and Prospects, p. 10).

In the interests of predictability and the sound administration of justice, I advocate mitigating the negative effects of the mosaic approach by adopting the ‘directed activities’ approach to jurisdiction in defamation and copyright infringement cases when revising the Brussels I bis Regulation.

Article 15 of the Anti-SLAPP Directive states that Member State courts should be able to impose effective and appropriate penalties, including compensation for damages. The European Parliament argued that these courts should have full jurisdiction over the entire damage suffered by SLAPP targets. However, the scope of the court’s jurisdiction is determined by the ground on which the court seised obtains jurisdiction.

Claims against SLAPP targets may be based on various grounds, such as defamation, copyright infringement or infringement of privacy. With respect to online infringements of personality rights, Member States courts have full jurisdiction under Article 4(1) and under Article 7(2) of the Brussels I bis Regulation on the basis of the Handlungsort and the place of ‘the centre of interests’ of the victim, i.e. the SLAPP claimant. However, in the light of legal literature and case law, the extraterritorial effect of the resulting Member States judgments can be criticised due to the lack of uniform law on the balance between the right to freedom of expression and personality rights; these judgments may therefore not be recognised and enforced in third countries.

Grounds for Refusing Recognition and Enforcement of Third-country Judgments

With respect to third-country judgments against persons domiciled in the EU, Article 16 of the Anti-SLAPP Directive requires Member States to ensure that the recognition and enforcement is refused if the third-country proceedings are considered manifestly unfounded or abusive under the law of the Member State of the requested court. Member States may choose whether to apply the public policy exception or a separate ground for refusal (Recital 43). Although the Dutch public policy exception (see Gazprombank judgment para. 3.6.4) generally protects SLAPP targets, the grounds in Article 16 appear to provide legal certainty and are likely to have a deterrent effect on claimants outside the EU.

However, unlike the prohibition of révision au fond in EU and Dutch PIL, the grounds for refusal in Article 16 may require a rather comprehensive assessment of the merits of the case by the requested court; this will not enhance the sound administration of justice and may lead to conflicts with respect to international comity.

The outcome of this assessment may even differ from one Member State to another, in particular when balancing the right to protect one’s reputation against the right to freedom of expression. However, legal certainty and protection for SLAPP targets will increase if Member States courts apply by analogy the factors set out by the Court of Justice in the Real Madrid ruling (C- 633/22) in order to assess whether there is a manifest infringement of the right of freedom of expression and, therefore, a breach of public policy in the Member State in which enforcement is sought.

Jurisdiction for Compensation for the Damage and the Costs Arising from Third-country Proceedings 

According to Article 17(1) of the Anti-SLAPP Directive, if the SLAPP target is domiciled in a Member State, the courts of that State shall have jurisdiction to award damages and costs resulting from abusive court proceedings against public participation initiated by a claimant domiciled outside the EU. From the perspective of EU and Dutch PIL, this new jurisdiction rule improves the access to Member States courts for SLAPP targets domiciled in the EU. However, the assessment of ‘abusive court proceedings against public participation’, requires the Member State court seised to determine whether the third-country proceedings ‘have as their main purpose the prevention, restriction, or penalisation of public participation’ and ‘pursue unfounded claims’ (Article 4(3) of the Anti-SLAPP Directive). This may involve an extensive assessment of the merits of the case, which does not facilitate predictability and the sound administration of justice inherent in the jurisdictional phase. Furthermore, the reverse burden of proof rule in Article 12 Anti-SLAPP Directive does not include a denial of the main purpose of deterrence of public participation.

Finally, the recognition and enforcement of Member States’ resulting judgments may be refused in third countries. As indicated in recital 44, Member State judgments awarding damages and costs will nevertheless have effect if the SLAPP claimant has assets in the EU.

Article 17(2) Anti-SLAPP Directive leaves it to the Member States to limit the exercise of jurisdiction under Article 17(1) while third-country proceedings are still pending. However, a uniform approach would have provided more predictability for SLAPP targets. In view of international comity and the close connection between the dispute and the forum, it may be desirable to stay proceedings if it is anticipated that the third-country court will dismiss the SLAPP claim or issue a judgment in favour of the SLAPP target within a reasonable time.

Criticism of the Lack of Transposition of Article 17(1) in Dutch PIL

The Dutch Draft Explanatory Memorandum to the Act transposing the Anti-SLAPP Directive was published for the public consultation in October and November 2024 (see ‘relevante documenten’ under ‘Memorie van toelichting’).

The Dutch Ministry of Justice and Security states that Dutch PIL already provides for the special jurisdiction ground of Article 17(1) of the Anti-SLAPP Directive in Article 6(e) of the Dutch Code of Civil Procedure (DCCP) that confers jurisdiction on Dutch courts in respect of obligations arising out of a tortious act, provided that the harmful event has occurred or may occur in the Netherlands (Explanatory Memorandum, p. 14). Article 6(e) DCCP has to be interpreted in the light of the CJEU’s case law on the similar provision in Article 7(2) of the Brussels I bis Regulation. According to the Explanatory Memorandum, if the SLAPP target is domiciled in the Netherlands, the Dutch court has jurisdiction because “it may be assumed that the direct harm to this person occurs (also) in the Netherlands” (Explanatory Memorandum, p. 14).

However, the case-law of the Court of Justice shows that in the case of a claim for purely financial loss the place where the direct damage occurred does not automatically coincide with the claimant’s domicile. The fact that a financial loss is suffered directly on the claimant’s bank account at his or her domicile is not sufficient to establish jurisdiction in that place, but other circumstances specific to the case are required to contribute to the attribution of jurisdiction to the courts of the place where the purely financial loss occurred (see, inter alia, C-12/15 Universal Music paras. 38-40). Thus, the fact that SLAPP victims suffer financial losses on their bank accounts in their place of domicile in the Netherlands may not be sufficient in itself for the Dutch court to base its jurisdiction on it. If the SLAPP target claims compensation for psychological damage caused by the SLAPP, it could be argued that the damage to the psychological integrity of the SLAPP victim occurred in the place where the SLAPP claimant initiated the legal proceedings, which would also not give the Dutch court jurisdiction (see Supreme Court 7 December 2001, ECLI:NL:HR:2001:AD3965, para. 3.3).

The foregoing indicates that the special ground of jurisdiction of Article 17(1) of the Anti-SLAPP Directive should be transposed in Dutch PIL in order to promote legal certainty and in view of the possibility that Dutch courts do not have jurisdiction as required by Article 17(1) (see my legislative advice to the Dutch Ministry of Justice and Security).

Concluding Remarks            

From the perspective of EU and Dutch PIL, the Anti-SLAPP Directive is certainly an important step in the right direction for the protection of SLAPP targets. However, further reforms at EU level are required to combat abusive multi-state litigation. In addition, international cooperation is needed to effectively address SLAPPs worldwide, in particular to facilitate the recognition and enforcement of Member State judgments that provide redress to SLAPP targets. At the moment, it is particularly important to focus on the correct and timely transposition of the Directive by Member States.

Victor Contreras Kong (Rabobank Private Banking) and Ebbe Rogge (Leiden University – Leiden Law School) have recently posted on SSRN an article titled Sustainability-Linked Products: International Private Law Standards, published in the Hazelhoff Research Paper Series. The (final, edited version of this) article was published in Journal of International Banking Law and Regulation.

The abstract reads as follows:

The last few years there has been a steady increase in sustainability-linked financial products. This paper examines in particular sustainability-linked bonds, loans, and derivatives. The focus is on the development of international private law standards which have arisen in this market, similar to those present in a wide range of ‘usual’ financial products. Some difficulties remain, such as performance measurements and verification. This raises the risk of green washing. Various regulatory initiatives, complementing or partially replacing private law standards, and which are aimed at addressing these issues, are discussed.

Matthias Lehmann (University of Vienna and Radboud University Nijmegen) has made available on SSRN the article on Digital Assets in The Conflict of Laws: A Comparative Search for the Ideal Rule that is being published on Singapore Journal of Legal Studies 2024.

The abstract of the article reads as follows:

Which law applies to private disputes over assets recorded on the blockchain, such as Bitcoin, Ether or stablecoins? This question has long eluded legal academia and practice. Now, states have begun to enact hard and fast rules. This contribution compares legislative provisions, soft law and judicial rulings in the US, England, Singapore, Germany, Liechtenstein, Spain, and Switzerland, and juxtaposes them to the recently adopted UNIDROIT Principles on Digital Assets and Private Law.

A careful analysis of these novel rules shows the emergence of a new gulf in the conflict of laws. The law governing digital assets is determined in different ways. This divergence risks undermining the functioning of the crypto economy even further. That is why this gap must be overcome before the differences are further entrenched and reciprocated by the laws of those states which have not yet regulated the question. The means to do so is a uniform text of conflict of laws.

Mindful of the need for conflict-of-laws unification, an attempt will be made to distill an ‘ideal’ conflicts rule for digital assets from the various national and international approaches. This results in an exact proposal of how an ideal rule could look like. It can serve as a blueprint for national legislation or case law. The hope is that this suggestion will lead to a worldwide consensus in determining the law applicable to digital assets.

Jacco Bomhoff (Law Department of the London School of Economics and Political Science) has made available on SSRN a paper on Cold-War Private International Law that was published also as a LSE Legal Studies Working Papers (Paper No 16/2024).

The abstract reads as follows:

This paper explores the character of Private International Law, or the Conflict of Laws, during the Cold War. It does this mainly by looking at one specific site where legal scholars and practitioners from the different blocs and non-aligned parts of the world, continued to come together to discuss their field: the yearly summer courses at the Hague Academy of International Law. The paper looks at the striking efforts made by lecturers at The Hague to keep a conversation going, in technical terms and among experts; and at how these efforts related to their conception of their discipline. Starting from these exchanges, but also taking in broader institutional and practical innovations of the era, the paper formulates a double-sided view of Private International Law during the Cold War. The period was in many ways foundational for the field as it exists and operates today. But tying contemporary disciplinary trends and innovations to any specific Cold-War related exigencies is not so easy. ‘Cold-War’ Private International Law, in the end, is probably best seen, in deceptively simple terms, as ‘Modern’ Private International Law. That observation itself, finally, is revealing for the longer term, secular, character of the field.

Paul Herrup and Ronald A. Brand (University of Pittsburgh – School of Law) have made available on SSRN a paper on the developments in the Hague Conference project on concurrent proceedings, titled A Further Look at a Hague Convention on Concurrent Proceedings.

The abstract reads as follows:

The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological confusion that has hampered progress on a practical result. Differing interpretations of the directions given to those doing the work has led to situations in which the participants have been speaking past each other. In this article, we provide a reminder of the common law/civil law divergence of approaches to concurrent litigation; review the approach taken in the EU’s Brussels I (Recast) Regulation and the problems it has created; and offer suggestions regarding the proper scope and architecture of a global convention addressing the problem of concurrent proceedings.

The paper follows earlier shared contributions on the topic from the same authors that can be accessed here and here.

More information on the on-going work on this topic at the Hague Conference can be found on the Jurisdiction Project page in the Conference’s website.

Jacco Bomhoff, Associate Professor at LSE Law School, has published an important article on US conflicts revolution and history of private international law. The title of the article is ‘Rationalising Mid-Century Choice of Law: Legal Technique and its Limits in the “Dark Science” of Conflicts’ and it has been published by the Modern Law Review.

The abstract reads as follows:

Under the common banner of a search for a ‘more rational’ approach to choice of law, US conflict-of-laws scholars of the late 1950s and the 1960s produced an impressive array of new technical instruments for their discipline. This article situates their work in the broader contexts of innovations in the social- and behavioural sciences and in legal- and political theory of this period. On this contextual reading, the methodological clashes of the so-called ‘choice-of-law revolution’ change in shape and become part of a much larger story – one with relevance also outside the discipline and beyond the United States. That story is about different degrees of faith in the capacities of technical instruments and practices, like legal doctrine, to manage and resolve conflict, by making disparate factors commensurable, and by affording outcomes that optimise all competing interests in play. By revisiting these mid-century battles over conflicts methods in light of contemporaneous understandings of ‘rationality’ and ‘legitimacy’ in other fields, the article contributes to our understanding of the genealogy of post-war choice of law, as well as of the history of these ideals – and their technical means – in modern legal thought.

Maxence Rivoire (PhD Candidate at the University of Cambridge and an incoming Lecturer in French Law at King’s College London) made available on SSRN his paper on ‘The Law Applicable to the Arbitrability of Registered Intellectual Property Rights’. In 2022 the paper won the Nappert Prize in International Arbitration awarded by McGill University.

The abstract reads as follows:

Although the power of an arbitral tribunal is subject to the will of the parties, some legal systems exclude certain types of intellectual property (IP) disputes from arbitration. This problem is commonly known as ‘arbitrability’. But what law, if any, should international arbitrators apply to arbitrability? This article addresses this question with a special focus on registered IP rights. Part I rejects the conflict rules that have traditionally been suggested to govern arbitrability, including the application of the law governing the arbitration agreement and that of the arbitral seat (lex loci arbitri). Part II argues that arbitrators should instead recognize the existence of a transnational principle whereby contractual, infringement, and ownership disputes are arbitrable. However, due to persisting uncertainty and differences among jurisdictions on the arbitrability of issues relating to the validity of registered IP rights, arbitrators should still give effect to domestic rules in this area. Acknowledging that non-arbitrability rules aim to safeguard the policy objectives of substantive IP laws and to protect the exclusive jurisdiction of national courts. Part III argues that the law applicable to the arbitrability of validity issues should be the law of the country for which IP protection is sought (lex loci protectionis), which corresponds to the law of the country where the IP right is registered. After examining the justification of this principle, Part III also discusses its practical implementation, notably where the dispute concerns IP rights registered in different countries, and where the lex loci protectionis clashes with the lex loci arbitri.

The author proposes a useful framework for international arbitrators who have to deal with conflict of laws relating to the arbitrability of registered IP rights such as patents and trademarks.

The author of this post is Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg.

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In a recent article, I explore what should be globally significant in a forum selection agreement as an indicator of the implied choice of law.

This topic is in itself a very old one, dating back to the late 19th century when English judges in Hamlyn & Co v Talisker Distillery (1894) AC 202, 208.explicitly held that in the absence of an express choice of law, a choice of forum agreement would imply the choice of law. The popular Latin maxim for this is: Qui eligit forum vel iudicem eligit ius. Currently, however, this topic is ill-defined, notoriously complex, and a hotly debated issue in theory and practice across the global community.

Indeed, there are two main opposing schools of thought on this topic, the first being that where there is no express choice of law, a forum selection agreement (encompassing a jurisdiction and arbitration agreement) should be decisive or a strong presumption in implying the choice of law. This enhances coherence between the forum and lex fori. Moreover, on pragmatic grounds, it is easier and less expensive for the forum to apply its own law correctly. Conversely, the opposing school of thought argues against a forum selection agreement being decisive or a strong presumption to imply the choice of law. This is on the basis that parties who choose a forum should also choose the law. Failure to choose a law to match a forum selection agreement will negate an implied choice of law; it could either mean that the parties were ignorant of the choice of law or did not intend to apply the law of the chosen forum. Therefore, according to a strict standard, this school of thought requires the corroboration of other indicators to imply a choice of law. In essence, where an express choice of law is absent, the choice of forum alone cannot imply a choice of law, because this wrongly conflates jurisdiction with choice of law.

There are many scholarly works that have commented on this issue, but few have devoted their attention to the topic. Maxi Scherer (2011) and Jan Neels (2016) are the only scholars I have found to dedicate their research to this area. Scherer’s focus is exclusively based on the European Union, whilst Neels is mainly concerned with  a note on the approach of the Indian courts in this regard. Nevertheless, other scholars have discussed the matter in great depth, even though it has not been the main thrust of their research, for example, Manuel Penades Fons (2012), Peter Mankowski (2017), Richard Plender &, Michael Wilderspin, (2019) Michael McParland (2015), and Garth Bouwers. (2021).

However, what is lacking in the previous scholarly works is the commitment to provide clear guidance on global uniform criteria for this issue. My article explicitly departs from a recent study by Garth Bouwers, who proposes a ‘case-by-case basis, avoiding fixed criteria’ in the use of a forum selection agreement as an indicator to imply a choice of law (ibid at at pages 237 & 247) The reason for advancing a clear guide to global uniform criteria is that it should contribute to greater certainty, predictability, and uniformity in this field of law.

The methodology employed, namely, a global comparative perspective, is one that presents all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared encompass those in the Global North and Global South, including common law, civil law, and mixed legal systems. I consider Symeon Symeonides to be the intellectual godfather of this form of global comparative perspective on choice of law. A decade or so ago, he employed this methodology in his seminal work, which covered around 100 codifications on choice of law. Daniel Girsberger, Thomas Graziano, and Jan Neels also utilised this methodology in an edited work on choice of law in international commercial contracts. Finally, Garth Bouwers applied this methodology in his recent study on tacit choice of law in international contracts.

Based on such a global comparative perspective, my article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in cases where the forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. My proposal is therefore a compromise between the school of thought that insists on the corroboration of a plurality of factors as a requirement, and the other, which rejects this requirement. Therefore, it is a proposal that should not be difficult to sell as a global approach.

However, debate might be unnecessary if parties make an express choice of law in their international contracts. Nevertheless, the reality is that whilst choice of forum agreements are popular worldwide, agreements on an express choice of law are not always entered into. Therefore, this present study is one that should remain pertinent to the theory and practice of international commercial dispute resolution.

Florence Guillaume (Professor of Private International Law at the University of Neuchâtel, Switzerland, and Founder of the LexTech Institute) has made available on SSRN a draft version of a paper on Decentralized Autonomous Organizations (DAOs) Before State Courts. How can private international law keep up with global digital entities? that is forthcoming in a book edited by Madalena Perestrelo de Oliveira and Antonio Garcia on DAO Regulation: Principles and Perspective for the Future.

The abstract reads as follows:

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court.

The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant.

The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

Lawrence Collins (UCL, former Justice of the UK Supreme Court) has posted Reflections on the Law Governing Confidentiality in Arbitration on SSRN.

The abstract reads:

The paper considers the law governing confidentiality in international arbitration, and in particular where there is a binary choice between the law governing the arbitration agreement and the law of the seat of the arbitration. The paper concludes that not only is there no binary choice, but also that the solution may depend upon the forum in which the issue arises, and that it will be only very rarely that the issue will need to be addressed directly.

The paper was published in Brekoulakis et al (eds), Achieving the Arbitration Dream: Liber Amicorum for Professor Julian DM Lew (Wolters Kluwer, 2023).

Luís de Lima Pinheiro (University of Lisbon) has posted Laws Applicable to International Smart Contracts and Decentralized Autonomous Organizations (DAOS) on SSRN.

The abstract reads:

International contracts, legal persons and other external organizations raise choice-of-law problems. Should smart contracts and DAOs in general be considered international? Are the choice-of-law rules in force for State courts and for arbitral tribunals appropriate for the determination of the applicable laws? To provide replies to these questions the present essay starts by general introductions to smart contracts and DAOs and also outlines the Private International Law framework of these realities. Solutions for difficulties on the application of the choice-of-law rules in force and more flexible approaches to address them are proposed.

Ralf Michaels (Max Planck Institute Hamburg) has posted Private International Law and the Legal Pluriverse on SSRN.

The abstract reads:

Private international law responds to the plurality of existing normative orders, and at the same time, as domestic law, it partakes in that plurality. As a consequence, private international law does not overcome legal plurality, nor does it provide a metanormativity shared between the regimes; it merely adds a second level to the plurality of substantive laws and conflicts regimes. This makes a legal ontology necessary that avoids oneness and embraces plurality. The chapter suggests pluriversality as such an ontology. Drawing on different theories – Carl Schmitt, William James, and decolonial theory – such an ontology is developed and analyzed. Private international law is not an add-on in such an ontology; instead it is a constitutive element.​

The paper is forthcoming in Philosophical Foundations of Private International Law, OUP, Roxana Banu, Michael Green, Ralf Michaels, eds.

Marco Biasi (Università degli Studi di Milano) has published Decent Work and the Virtual Dimension: Reflections about the Regulation of Work in the Metaverse in Lavoro Diritti Europa 2023/1. The article (written in Italian) deals with conflict-of-laws and substantive law issues of working in the virtual world.
What is the Metaverse?

The metaverse is more than the eponymous project of Facebook, which has recently rebranded itself as “Meta”. The term was first mentioned in 1992 in the novel “Snow Crash” by Neal Stephenson, and describes a virtual space in which participants are fully immersed and can interact with each other almost as in real life. In essence, the metaverse is thus a special type of computer programme which allows people to interact in digital space. To do so, they need equipment, in particular a virtual reality headset and controllers, which are readily available today at a relatively affordable price. Nowadays, a multitude of projects exist aiming to create such a metaverse. Well-known projects in this field are Decentraland and The Sandbox, and of course the ”Metaverse” developed by Meta.

What Kind of Disputes Could Arise?

In the metaverse, various forms of activity can be performed, such as office work, reunions, sales meetings, education – under an employment agreement. As such, disputes between employers and employees will soon emerge, and with them, the question which law applies to work performed. The problem of connecting a metaverse to the labour law of a particular nation state is as obvious as it is baffling.

Where is Work in the Metaverse Habitually Carried Out?

In the European Union, according to Article 8 Rome I Regulation, the country from which or in which the work is habitually performed is of particular importance for determining the law applicable to a contract of employment, irrespective of whether there is a choice of law. Although Article 8(1) Rome I Regulation follows the principle of party autonomy by allowing the parties to choose the applicable law, this choice is limited by the mandatory rules of the country in or from which the work is habitually carried out.
At first sight, both connecting factors seem to lead nowhere given that the work is performed in the virtual space. But Marco Biasi rightly distinguishes the situation of metaverse workers from that of posted workers and pulls us down to a more realistic view point: an employee who sits in their home in country X with a headset and a controller in fact performs their work in this country, and nowhere else.

Labour Law as Overriding Mandatory Rules

This seems to settle the question, yet it would provide very strong incentives for metaverse employers to pick and choose employees living in countries with the lowest labour law standards possible. One way of avoiding this problem could be to assume a closer connection between the contract and the country of establishment of the employer under Art 8(4) Rome I. Marco Biasi suggests, however, another solution: if the employees themselves were to bring a claim in the country of domicile or seat of the employer, the courts there could apply the provisions of their national labour law as overriding mandatory rules (Art 9 Rome I Regulation).

The (possibly) too lenient rules of the place of habitual residence of the worker could thus be overcome and fairness between employer and employee could be re-established. In this way, a nucleus of essential workers protections could be preserved, e.g. the maximum working hours, the minimum wage, and health and safety rules.

There are, however, two problems with this suggestion: First, the employee would have to make the effort of bringing a suit in the country of the employer, which will often be fraught with difficulties such as distance, language, and costs. Second, the suggestion presupposes that mandatory labour law rules could be applied via Article 9 Rome I, even though Article 8 Rome I seems to conclusively determine their application. While many authors indeed are of this view, it is in no way the subject of consensus.

Going Further

Marco Biasi assumes that, in any event, the protection of the employee will be incomplete and differ from country to country. Therefore, he suggests introducing international rules (such as a convention) on the rights of metaverse employees. Some problems will be hard to solve, though; trade negotiations on behalf of a class of workers scattered around the planet will be particularly challenging. There remain, therefore, enough problems to think about even after this first in-depth study of labour law in the metaverse.

Burcu Yüksel Ripley (University of Aberdeen) has posted on SSRN a paper titled Cryptocurrency Transfers in Distributed Ledger Technology-Based Systems and Their Characterisation in Conflict of Laws. The final version will appear in an edited collection in honour of Jonathan Fitchen titled From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen (Hart, forthcoming).

The abstract reads as follows:

In modern payment systems that are used today, non-cash payments are predominantly executed by banks, acting as an intermediary between payers and payees, in the form of bank-to-bank (interbank) funds transfers through bank accounts. A fundamental structural change has been introduced to this method of making payments with the emergence of cryptocurrencies underpinned by distributed ledger technology (DLT). This has enabled that non-cash payments can be made outside of the banking system directly from payer to payee and secure digital records can be held independently of the usual central trusted authorities such as banks. This global paradigm shift, starting with the possibilities of cryptocurrencies in payments, has introduced new challenges for private international law. The issue of characterisation of cryptocurrency transfers in DLT-based systems is at the heart of the some of the key private international law questions, including the determination of the law applicable to cryptocurrency transfers. The efforts have thus far mainly focused on characterising cryptocurrencies themselves as money, property or claims and a discussion around the application of the lex situs as the predominant connecting factor in international property law and the consideration of the relevant conflict of laws rules regarding the transfer of intangibles for cryptocurrency transfers. The purpose of this chapter is to offer a new perspective on the characterisation of cryptocurrency transfers taking place within DLT-based cryptocurrency systems by utilising an analogy to electronic funds transfers and funds transfer systems under unitary and segmented approaches and consider the potential effects of both approaches on the law applicable to cryptocurrency transfers.

Aukje A.H. Van Hoek (University of Amsterdam) has posted The Declaratory Judgment – Between Remedy and Procedural Technique on SSRN.

The abstract reads:

This contributions discussed a very technical issue of private international law that turned out to be crucial in several class actions held in the Netherland regarding torts committed in common law countries: Should the question whether courts in the Netherlands can issue a purely declaratory judgment on the tortiousness of certain behaviour or the liability of the defendant be considered to fall under the lex causae (the declaration being considered as a type of remedy), or rather be governed by lex fori (as being a procedural issue)? The author prefers a classification as procedural, but acknowledges that the case law on this issue doesn’t fully support this outcome. The question lost some of its relevance under the new law on class actions, but is still pertinent.

The paper was published in the Liber Amicorum Monika Pauknerová (Wolters Kluwer CR 2021).

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations that is being published on Lex & Forum in 2023.

The abstract of the article reads as follows:

This is an invited essay for a conference on “European Private International and Procedural Law and Third Countries” that was held in Greece on September 29, 2022. It focuses on certain aspects of three European Union “Regulations,” which have “federalized” the Private International Law or Conflict of Laws of the Member-States: (1) the “Brussels Ia” Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters of 2012; (2) the “Rome I” Regulation on the Law Applicable to Contractual Obligations of 2008; and (3) The “Rome II” Regulation on the Law Applicable to Non Contractual Obligations of 2007.
The first part of the essay criticizes the discriminatory treatment of defendants domiciled outside the EU by Brussels Ia, and its lack of deference toward the exclusive jurisdiction rules of third countries or toward choice-of-court agreements choosing the courts of third countries. It praises the Brussels Ia provisions on lis pendens and its protection of consumers and employees against unfavorable pre-dispute choice-of-court agreements.
The second part praises the protection Rome I provides for consumers and employees against unfavorable choice-of-law agreements, but also explains why the protection provided for passengers and insureds is often ineffective. It criticizes the lack of protection for other weak parties in commercial contracts, such as franchises, and explains how an article of Rome II that allows pre-dispute choice-of-law agreements for non-contractual claims in those contracts exacerbates this problem.
The third part of the essay criticizes the way in which Rome II resolves cross-border torts other than environmental torts, especially cross-border violations of human rights. It proposes a specific amendment to the relevant article of Rome II and argues that this amendment will provide better solutions not only in human rights cases but also in other conflicts arising from cross-border torts.

Luís de Lima Pinheiro (University of Lisbon) has posted The Spatial Reach of Injunctions for Privacy and Personal Data Protection on the Internet Revisited on SSRN.

The abstract reads:

This study deals with the spatial reach of injunctions addressed to online intermediaries for removal, blocking or delisting of content for the protection of the right of privacy, including data protection. It complements a previous essay published in Ius Vivum: Kunst – Internationales – Persönlichkeit. Festschrift für Haimo Schack zum 70. Geburtstag, summarizing its conclusions, providing the clarification of some issues and adding further comments.

It is advocated that while the limits set by Public International Law to the jurisdiction of the States must be taken into account, the spatial reach of these injunctions should be mainly determined through a Private International Law approach, based upon a substantive characterization of the issue.

Florence Guillaume and Swen Riva (University of Neuchatel) have posted Blockchain Dispute Resolution for Decentralized Autonomous Organizations: The Rise of Decentralized Autonomous Justice on SSRN.

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR).

Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralized and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of private international law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first decentralized autonomous organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms (BDRs) inspired by the solutions developed in e-commerce.

This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyze what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDRs, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalized through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on cryptoeconomic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy.

The analysis is mostly based on Swiss private international law and major private international law conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralized autonomous justice to the actors of the crypto economy.

The paper is forthcoming in Bonomi and Lehmann (eds), Blockchain and Private International Law (Brill Nijhoff 2022)

Alex Mills (University College London) published a working paper on the role of territoriality in Private International Law. This is available in free access on SSRN.

The abstract reads:

Private international law essentially deals with the question of how we should regulate relationships and resolve disputes which have connections with more than one legal system, distinguishing between the institutional aspects of regulation (jurisdiction) and the substantive aspects (applicable law). Traditionally, a decision is made about which legal system (or systems) should govern based on a range of connecting factors. Among these factors, territorial connections have historically had the most significant influence, reflecting an approach to private international law which understands the subject as concerned with the division and allocation of state authority and adopts a ‘spatial’ conception of that authority. Private international law theory and practice has also, however, explored a range of alternatives which might be relied on, including the characteristics or wishes of the parties themselves, as well as other approaches which reject altogether the idea that private international law should focus on allocational questions. This chapter asks why territoriality plays such an important role in private international law, and considers whether it should. The chapter begins with an examination of the role of territoriality in private international law history and theory. It then considers various arguments which might be raised to justify territoriality in private international law, suggesting that they may also justify traditional private international law techniques. The chapter also, however, addresses the question of whether these justifications hold up against the challenges presented to territoriality by modern globalisation, in particular, whether territoriality can provide certainty, coherence, and effective regulatory constraint.

Alex Mills work is forthcoming in a volume on Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels with Oxford University Press in 2023.

More information on the interdisciplinary project exploring the Philosophical Foundations of Private International Law can be found here.

Stephan Madaus (Professor at Martin-Luther-University Halle Wittenberg) has made available on SSRN an interesting paper under the title The Cross-Border Effects of Restructurings. Principles for Improved Cross-Border Restructuring Laws. The paper explores latest developments in insolvency and restructuring procedures in several countries and their cross-border effects in order to inform policymakers on possible considerations to be made when modernizing existing restructuring legislation.

The abstract reads as follows:

The laws in many countries have added (preventive) restructuring options in recent years, sometimes as part of pandemic relief measures as in Germany or the United Kingdom. The cross-border effects of such options, especially when they take the shape of court decisions and proceedings, are rarely ever regulated specifically. Often the cross-border insolvency framework is assumed to apply where a Gibbs Rule or the availability of secondary proceedings threaten to frustrate the effort and limit the use of the new option to domestic cases.

The approach of this paper is to take a fresh doctrinal and conceptual look at the matter. By disassembling the functions and effects of insolvency and restructuring proceedings, it opens the path for a fresh look and a new differentiated conceptual design for cross-border restructuring frameworks based on the established principles and connecting factors of Private International Law.

First, a taxonomy is established in the paper. The term ‘restructuring’ is taken from the pure insolvency law context and explained as a general phenomenon in the management of any business at any time. This includes any cross-border effects of restructuring measures like workouts, which are secured either by general choice of law rules or, if a court is involved, by means of judgment recognition if available.

Second, the paper explains that the general principles of Private International Law have been modified in the realm of insolvency, for good cause. Their court-based and debtor-centred nature made it necessary and easy to agree on a system based on judgment recognition for traditional liquidation-oriented bankruptcy procedures, which encompass both winding-ups and (prepacked) going-concern sales.

Third, the paper argues that these principles and assumption cannot work well for restructurings because these are not asset-oriented but debt-oriented procedures and thus trigger the weak spots in today’s cross-border insolvency framework.

Finally, the paper argues that an ideal cross-border restructuring regime should take the following shape: (1) Debt restructurings under the restructuring (and insolvency) law of the lex causae would be effective globally due to the principles of Private International Law for modifications of substantive rights. When such a debt restructuring is also confirmed by a court, the recognition of such judgments abroad should be facilitated (‘automatic recognition based on the closest connection’). (2) Any debt restructuring under other rules than the lex causae, in particular under a lex fori (concursus), should require a degree of connection to the lex causae. If only a sufficient connection is established between the state of proceedings and the state of the lex causae, jurisdiction is an option and recognition may be conditional (‘controlled recognition based on sufficient connection’). (3) Without even a sufficient connection, debt-oriented proceedings shall not commence and any debt modification cannot assume to be recognised.

The paper does not propose any specific legal reform. Its taxonomy aims at describing an ideal state of cross-border law for a global restructuring practice. The paper intents to inform policymakers when considering the introduction or modernisation of a cross-border restructuring framework, potentially as part of a general restructuring and insolvency law reform. The paper would particularly suggest that there should be more flexibility in a cross-border restructuring framework as it is not at all structurally bound to a COMI concept.

Christopher A. Whytock (University of California at Irvine School of law) has posted Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment on SSRN.

The abstract reads:

It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform.

This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either.

These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.

The paper is forthcoming in the Journal of Empirical Legal Studies.

Ansgar Ohly (Ludwig Maximilian University Munich) wrote an interesting article addressing matters of jurisdiction and choice of law in trade secrets misappropriation cases. The article entitled Jurisdiction and Choice of Law in Trade Secrets Cases: the EU Perspective has been published in an Edward Elgar Research Handbook on Information Law and Governance edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly. A version of the paper is now available for free consultation on SSRN.

The abstract reads as follows:

Trade secrecy law is a hybrid between intellectual property and unfair competition law. This makes the characterisation of trade secrecy law for the purposes of private international law difficult. This paper argues that neither the EU conflict of law rules for unfair competition law nor those for IP law can be applied, but that a sui-generis solution is called for.

The paper is structured around two parts: one dedicated to determining jurisdiction in trade secrets cases – Part II – and another to applicable law – Part III.

The analysis is systematic and starts from matters of jurisdiction in tort or contract cases, discussing the Bogsitter case (C-548/12) and Wikingerhof case (C-59/19; the judgment was not yet given by the CJEU), Trade Secrets Directive (Directive (EU) 2016/943), and looking at the place where ‘the harmful event occurs’.

For applicable law, the EU provisions seem to force the courts to address the difficult question of whether the protection of trade secrets is a part of intellectual property or of unfair competition law.

One of the problematic aspects of the analysis is related to the specificity of trade secrecy that usually involves a chain of events which consists of the acquisition, the disclosure, and the use of the information.

All of these acts are separate acts of infringement, but at the same time they are related (see the “cascade of liability” established by Article 4 Trade Secrets Directive).

Hence, the question is whether these acts should be dealt with separately for the purpose of establishing jurisdiction and determining the applicable law or whether the entire dispute should be handled by one forum based on one applicable law or other sui generis solution should be considered.

Francesco Parisi (Professor of Law at the University of Minnesota, Law School and a Professor of Economics at the University of Bologna), Daniel Pi (Assistant Professor at University of Maine School of Law) and Alice Guerra (Assistant Professor at the University of Bologna) wrote an interesting article using a law and economics approach to compare access to evidence in the US and EU. The article, entitled Access to Evidence in Private International Law, is forthcoming in 2022 in volume 23 of Theoretical Inquiries in Law.

The authors focus their analysis on how a misalignment of the burden of proof and evidentiary rules can frustrate the production of evidence and undermine care incentives when these are applied cross-border tort cases.

The abstract reads as follows:

This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.

The article is structured in three parts. The first part of the article provides a theoretical insight into the interaction of presumptions and discovery rules using an economic approach. The second part offers a short overview of the way American and European law deal with the burden of proof and evidentiary discovery. In the third part the authors discuss how dissonant incentives can arise when tort cases are adjudicated in American courts using European legal rules. The various case law of American jurisdictions are split on the question whether the burden of proof should be regarded as substantive or procedural. The authors ultimately suggest that the US should treat presumption of negligence as a procedural rule to promote efficient incentives. They conclude that such a rule counterintuitively results in better outcomes in cases of private international law tort cases where, with a proper alignment of presumptions and discoverability rules, defendants would face incentives to invest in evidence technology even when knowing that the evidence could be used against them.

Samuel P. Baumgartner (University of Zürich) and Christopher A. Whytock (University of Irvine) have posted Enforcement of Judgments, Systematic Calibration, and the Global Law Market on SSRN.

The abstract reads:

There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts. These findings lead us to question the need for the systemic inadequacy ground for refusal and conclude that the time is ripe for reconsidering it.

The paper is forthcoming in Theoretical Inquiries in Law, Vol. 23, No.1, 2022.

Daria Levina (European University Institute) posted on SSRN a paper titled The Law Governing Enforceability of Forum Selection Agreements. The paper was completed to fulfill the requirements for a master of laws degree at Harvard Law School and received the 2018 Addison Brown Prize in conflict of laws.

The abstract reads as follows:

The paper examines approaches to determining the law governing forum selection agreements (“FSA”) in the US, the EU, Germany, and on international level (on example of the 2005 Hague Convention on Choice of Court Agreements). It analyses the historical treatment of FSA, as well as its legal features, and shows how they influenced the approaches adopted by the above jurisdictions. It looks at all potentially applicable laws (lex fori, lex causae, lex fori prorogati) and discusses the arguments in favor and against each of them, testing them against the principles of predictability, procedural economy, legal certainty, and regulatory interests of states. The paper adopts comparative approach in order to familiarize with the solutions adopted by different legal systems draw conclusions which might benefit them.

John F. Coyle from the University of North Carolina has published on SSRN an article titled The Mystery of the Missing Choice-of-Law Clause.

The abstract reads as follows:

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract—and there is near-universal agreement that they do—then this decision raises a perplexing question. Why would any experienced contract drafter ever consciously choose not to write a choice-of-law clause into an agreement?
This Article seeks to answer this question with respect to one type of agreement where choice-of-law clauses are routinely omitted—insurance contracts. All of the available evidence suggests that most insurance contracts lack choice-of-law clauses. This is surprising because insurance companies are the epitome of the sophisticated contract drafter. To unravel the mystery of why so many insurance contracts do not contain choice-of-law clauses, the Article draws upon more than thirty interviews and email exchanges with industry experts. It argues that the absence of these provisions is attributable to a complex amalgam of legislative and regulatory hostility, judicial skepticism, standard forms, and strategic maneuvering on the part of insurers. The Article argues further that manuscript policies—which are negotiated between insurers and policyholders—sometimes lack choice-of-law clauses due to a perceived first-mover disadvantage and the absence of any body of truly neutral insurance law within the United States.
Solving the mystery of the missing choice-of-law clause in insurance contracts unlocks three important insights. First, it informs the efforts of state legislators and insurance commissioners called upon regulate the terms of insurance policies. Second, it suggests that insurance companies should adopt a differentiated approach to drafting choice-of-law clauses that accounts for the relative favorability of the law in the policyholder’s state. Third, and most importantly for contract scholars, solving the mystery sheds light on the nature of the contract production process, the drafting acumen of insurance companies, and the stickiness of absent contract terms.

Daniel B. Listwa (Wachtell, Lipton, Rosen & Katz) and Lea Brilmayer (Yale Law School) have posted Jurisdictional Problems, Comity Solutions: Lessons for the Restatement (Third) on SSRN:

American choice of law is today portrayed as a story of how a more modern and functionalist methodology came to overthrow the long dominant territorial system. Against this background, the situs rule—the territorial rule requiring that all property-related issues be governed by the law of the jurisdiction in which the property is located—is seen as an unusual straggler of a now-debunked theory. Central to this narrative is the idea that the vested rights theory, which was embraced by the Restatement (First) of Conflict of Laws and assumed away the possibility for overlapping jurisdictions, represented “traditional” choice of law, going back to Justice Joseph Story, the father of American conflicts law. This is the perspective adopted by the now-in-the-works Restatement (Third), which aims to usher in a new era for American conflict of laws by cutting out all vestiges of the “traditional” model—the situs rule included.

But this narrative, while broadly held, is wrong. It is a mistake to associate choice of law during the early Republic with an early twentieth-century model of territorialism. In this Essay, we explain that the early American choice-of-law model, as described by Justice Story, was not territorial, but rather intensely functional, with its prime focus being resolving the uncertainty created by the constitutional law governing the limits of personal jurisdiction and the recognition of sister-state judgments. In this context, the persistence of the situs rule appears to be not an anachronism but rather an indication that “modern” choice-of-law theories misunderstand the forces shaping conflict–of–laws doctrine today. Using the situs rule as a window into the foundations of choice of law, this Essay thus calls into question the standard narrative underlying contemporary choice-of-law literature and challenges the approach of the proposed Restatement (Third).

The article is forthcoming in the Texas Law Review.

Ilaria Pretelli (Swiss Institute of Comparative Law; University of Urbino) has posted Three Patterns, One Law – Plea for a Reinterpretation of the Hague Child Abduction Convention to Protect Children from Exposure to Sexism, Mysogyny and Violence against Women on SSRN.

The abstract reads:

The 1980 Hague Convention must be read today in light of the 2011 Istanbul Convention that brings to full light that violence against women is a world-wide phenomenon, and “one of the most serious forms of gender-based violations of human rights in Europe that is still shrouded in silence”. The perspective proposed by this paper allows to break the silence and solve the conundrum of the dilemma on how the return mechanism should operate in practice, in order to ensure full compliance with the best interests of the child. Sexism, misogyny and violence against women may be the premise of child abductions carried out by taking fathers, permeated with a sexist culture, but also by taking mothers fleeing violence. The solution proposed here consists in re-establishing the original distinction of the 1980 Convention, between illicit transfers of a child’s residence and child abductions in the true sense.

Matthias Lehmann (University of Vienna) has posted National Blockchain Laws as a Threat to Capital Markets Integration on SSRN. The paper, which appeared in the European Banking Institute Working Paper Series 2021, analyses the legislation adopted by a number of countries in Europe and the US for dealing with crypto assets and distributed ledger technology for investment purposes, the risks of fragmentation and divergent rules, and regional solutions towards a harmonised approach.

The abstract reads as follows:

Various states have started providing private law frameworks for blockchain transfers and crypto assets. The first acts have been adopted by France and Liechtenstein, while a commission of the British government sees no difficulties in extending property protection under the Common law to crypto assets. In the US, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some States going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonised to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of world-wide rules, uniformisation of private law should take place at the regional level, for instance by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.

Monika Zalnieriute (University of New South Wales) has posted Data Transfers after Schrems II: The EU-US Disagreements Over Data Privacy and National Security on SSRN.

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement which facilitated the European Union – United States data transfers. Schrems II illuminates the long-lasting international disagreements between the EU and USA over data protection, national security, and the fundamental differences between the public and private approaches to protection of human rights in data-driven economy and modern state. This article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that Schrems II decision further solidifies and cements CJEU’s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to re-balance the terms of international cooperation in data-sharing across the Atlantic and beyond. It is the outcome that the US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis enables us to see that the EU is not a monolithic block, and Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities, or accommodation of the institutional preferences of its powerful political ally – the USA. The CJEU decision goes against the European Data Strategy, and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests the structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quick to create a solution – another quick contractual ‘fix’ – to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and USA over data protection, national security and privacy. When two powerful actors are unwilling to change their institutional preferences, ‘contracting out’ the protection of human rights in international law is the most convenient option.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

Juan J. Garcia-Blesa (Fern University) has posted Indeterminacy, Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance? on SSRN.

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues.

The paper is forthcoming in the International Journal for the Semiotics of Law.

Kurt Siehr (formerly MPI Hamburg) has posted Mandatory Rules of Third States: from Ole Lando to Contemporary European Private International Law on SSRN.

The abstract reads:

On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark.

The paper was published in the European Review of Private Law 2020.

Tamás Szabados (Eötvös Loránd University) published Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?, in the Common Market Law Review (vol. 58, February 2021).

The paper discusses the constitutional identity-based arguments in the field of private international law.

He has kindly provided us with an extended abstract :

Constitutional identity has become a fashionable concept that is used by politicians and courts alike. But how does constitutional identity affect private international law?

The use of constitutional identity-based arguments has been primarily examined in the context of EU and domestic constitutional law. Constitutional law discourse has mainly centred around the interpretation of Article 4(2) of the TEU. However, less attention has been devoted to the role and impact of arguments related to constitutional identity on the development of EU private international law. This is notwithstanding the fact that constitutional identity seems to shape the application and creation of private international law rules.

Constitutional identity has a twofold effect on private international law. First, peculiar constitutional norms and values belonging to constitutional identity can be safeguarded through the public policy exception. This opens the door for courts to disregard the otherwise applicable foreign law or to reject the recognition of a foreign situation on the ground that it violates the constitutional identity of the forum state.

Second, arguments based on constitutional identity may be relied on to stay outside the enactment of new private international legislation by the EU. In particular, due to the unanimity requirement laid down by Article 81(3) TFEU, Member States have a strong bargaining power in the area of international family law. This can be well illustrated by the recent adoption of Matrimonial Property Regulation and the Regulation on the Property Regimes of Registered Partners where the opposition of some Member States led to the enactment of these regulations in enhanced cooperation procedure. Staying outside from the adoption of these regulations has been motivated by protecting the domestic concept of family as part of national or constitutional identity. In this way, constitutional identity undoubtedly contributes to the fragmentation of EU private international law.

Nevertheless, constitutional identity can be rarely used as a trump by the Member States in the area of the judicial cooperation in civil matters. There are at least two limits concerning the application of the autonomous private international law rules of the Member States. First, as long as an international legal dispute demonstrates some connection to EU law, Member States must respect the fundamental principles of EU law, in particular the principles of free movement and non-discrimination. Second, even if no such connection exists, the limits stemming from international conventions, such as the ECHR, cannot be ignored.     

The details of the article are available through the journal website here.

Tamás Szabados (Eötvös Loránd University) published In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications, in theInternational Journal of Cultural Property (vol. 27, 2020). The abstract reads as follows.

Most private international laws do not address cultural property specifically but, instead, apply the general lex rei sitae rule also to artifacts. Legal scholarship has revealed the flaws of the rigid application of the lex rei sitae principle to cultural goods and has proposed alternative connecting factors, such as the lex originis principle, to prevent forum and law shopping in this field. Reacting to the criticisms, some of the more recent private international law codifications have decided on the adoption of specific rules on stolen and illegally exported cultural goods that combine the lex rei sitae and the lex originis rules and provide room for the parties’ autonomy. This article draws the conclusion that these more recent legislative solutions do not necessarily promote legal certainty and predictability with regard to the governing law and are far from being a Holy Grail for the conflict of laws of cultural property, whether on a national level or within the European Union.

See here for more information.

Dimitry Kochenov (University of Groningen) and Uladzislau Belavusau (T.M.C. Asser Institute) have posted on After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts on SSRN.

The abstract reads:

This article provides a detailed critical analysis of the case of Coman, where the Court of Justice of the EU clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practiced in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality in moves beyond mere proclamations in the whole territory of the Union. In particular, we: (1) Question the effectiveness of the Commission as an effective guardian of the Treaties, puzzled by its failure to make basic EU citizenship rights available to EU citizens who are in a same-sex relationship. (2) Interrogate the deficiencies of single-purpose marriage recognition and question the speed of the eventual spill-overs of such recognition into other fields outside immigration per se. (3) We demonstrate that Coman is a textbook example of the free-movement paradigm of non-discrimination at work, which is, besides obviously being accepted in EU law, also deeply questionable, since those who do not move within the internal market might also want to have a family. (4) Issues of coherence among different instruments of secondary EU law equally arise, (5) just as the issue of ‘genuine residence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of life and increasing numbers of people – not all of them heterosexual – living between countries and homes. (6) Numerous questions arise as a result of the natural conflict, which is omnipresent, between principles of EU law and private international law approaches. (7) The CJEU’s language of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinions, informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal beds. (8) The last issue we raise is the question of ‘what’s next?’ for others who are still arbitrarily persecuted by EU and national law and for whom (and how many of them) they love. Once the principle is established that states should not interfere with our sexuality without imperative reasons of the public good – what the LGBTQ community has been subjected to abundantly and still suffers from, and to which Coman is a wonderful illustration – the same test is bound to apply in other contexts, especially polygamy and other persecuted or ‘non-recognised’ loving relationships. But first we turn back to the facts and the context of the case, and praise the Court for a significant achievement, which righted the failure of the Commission to ensure the basic applicability of the Directive 2004/38 to gay European citizens.

The paper is forthcoming in the Maastricht Journal of European and Comparative Law.

Carsten Gerner-Beuerle (University College London & European Corporate Governance Institute – ECGI), Federico M. Mucciarelli (Università degli studi di Modena e Reggio Emilia – UNIMORE), Edmund Schuster (London School of Economics) and Mathias Siems (European University Institute – EUI, Durham University and European Corporate Governance Institute – ECGI) have posted Making the Case for a Rome V Regulation on the Law Applicable to Companies on SSRN.

The abstract reads:

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this paper is that private international company law in the EU should be harmonised. The paper discusses the main challenges that a future regulation to this effect – called here ‘Rome V Regulation on the Law Applicable to Companies’ – would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this paper to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonisation based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects of future international harmonisation.

A revised version of the paper will be published in the Yearbook of European Law.

Stephen Park (University of Connecticut School of Business) and Tim Samples (University of Georgia School of Business) have posted Distrust, Disorder, and the New Governance of Sovereign Debt on SSRN.

The unique characteristics of sovereign debt finance provide fertile ground for opportunistic behavior and intractable disputes. Lacking reliable contractual enforcement mechanisms and formal bankruptcy procedures, the sovereign debt restructuring process is hampered by fragmentation, costly standoffs, and unpredictable outcomes. The result is a non-system of ad hoc, decentralized negotiations and litigation that some fear is perpetually at risk of falling apart. To address these concerns, recent years have seen renewed efforts to fix sovereign debt through soft law, public-private collaboration, and informal governance mechanisms, which this Article collectively refers to as sovereign debt governance. This Article focuses on one of the most prominent proposed reforms in sovereign debt governance: the use of creditor committees to facilitate engagement between a sovereign debtor and its private external creditors. Notwithstanding the uniqueness of sovereign debt in international law and financial regulation, we explain how the debtor-creditor relationship reflects a fundamental governance challenge amidst individual distrust and collective disorder. This suggests that the sovereign debt restructuring process can be improved by reforming the procedural rules and institutional frameworks that govern debtor-creditor engagement. To assess this proposition, we examine the use of creditor committees in the current era of sovereign debt, focusing on factors that influence the conduct of debtors and their creditors vis-à-vis each other. Drawing on our observations, we consider the potential value and limitations of creditor committees in the context of sovereign debt governance.

The paper is forthcoming in the Harvard International Law Journal.

Mark C. Weidemaier (University of North Carolina School Law) and G. Mitu Gulati (Duke Law School) have posted Unlawfully-Issued Sovereign Debt on SSRN.

The abstract reads:

In 2016, its economy in shambles and looking to defer payment on its debts, the Venezuelan government of Nicolás Maduro proposed a multi-billion dollar debt swap to holders of bonds issued by the government’s crown jewel, state-owned oil company Petroleós de Venezuela S.A. (“PDVSA”). A new government now challenges that bond issuance, arguing it was unlawful under Venezuelan law. Bondholders counter that this does not matter—that PDVSA freed itself of any borrowing limits by agreeing to a choice-of-law clause designating New York law.

The dispute over the PDVSA 2020 bonds implicates a common problem. Sovereign nations borrow under constraints imposed by their own laws. Loans that violate these constraints may be deemed invalid. Does an international bond—i.e., one expressly made subject to the law of a different jurisdiction—protect investors against that risk? The answer depends on the text of the loan’s choice-of-law clause, as interpreted against the backdrop of the forum’s rules for resolving conflict of laws problems.

We show that the choice-of-law clauses in many international sovereign bonds—especially when issued under New York law—use language that may expose investors to greater risk. We document the frequent use of “carve outs” that could be interpreted to require the application of the sovereign’s local law to a wide range of issues. If interpreted in this way, these clauses materially reduce the protection ostensibly offered by an international bond. We explain why we think a narrower interpretation is more appropriate.

Csongor István Nagy (University of Szeged), has posted on SSRN a paper titled The Reception of Collective Actions in Europe: Reconstructing the Mental Process of a Legal Transplantation, also published on the Journal of Dispute Resolution.

The European collective action is probably one of the most exciting legal transplantation comparative law has seen. Collective litigation, which U.S. law did not inherit from common law but invented with the 1966 revision of class actions, has been among the most successful export products of American legal scholarship. Today in the European Union, seventeen out of twenty–eight Member States have adopted a special regime for collective actions. At the same time, collective actions are intrinsically linked to various extraneous components of the legal system; hence, their transplantation calls for a comprehensive adaptation. The need to rethink class actions has not only generated a heated debate in Europe about whether and how to introduce collective actions, but resulted in Europe’s making collective actions in its own image, producing something truly European: a model of collective actions à l’européenne. This Article presents the process of developing the European collective action and its outcome. It represents the first attempt to give a trans-systemic account of European collective actions and to elucidate them in light of the peculiarities and idiosyncrasies of the mindset of European jurisprudence. Further, this Article gives an analytical presentation of the emerging European collective action model and demonstrates how it was shaped by Europe’s legal thinking and societal attitudes.

Carlos Manuel Vazquez (Georgetown University Law Center) has posted Extraterritoriality as Choice of Law on SSRN.

The abstract reads:

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions — which I call geographic scope limitations — as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as the governing law. The Third Restatement does not consider them to be choice-of-law rules, instead maintaining that they are indistinguishable from limitations on the statute’s internal scope, such as a provision specifying that a statute prohibiting vehicles applies only in parks. This means, according to the Third Restatement, that contractual choice-of-law clauses are presumed to select the chosen state’s law subject to their geographic scope limitations, and that the courts of other states are obligated to give effect to such limits when applying the law of the state that enacted the statute with the geographic scope limitation. Indeed, according to the Third Restatement, failure to do so would violate the obligation of U.S. states to give Full Faith and Credit to the laws of sister states.

This article defends the Second Restatement’s understanding of geographic scope limitations as choice-of-law rules. Limits on a statute’s territorial scope are fundamentally different from limits on a statute’s internal scope. When a state enacts a statute and specifies that it applies only to conduct occurring within the state’s territory, or to residents of the state, it has limited the reach of the law out of deference to the legislative authority of other states. The state does not have a different rule for conduct that occurs on the territory of other states or for persons who are not residents. The territorial scope provision tells us only that cases beyond the statute’s specified scope should be governed by the law of a different state. For this reason, such provisions are best understood as choice-of-law rules.

The Third Restatement treats geographic scope limitations as prescribing non-regulation for cases beyond the statute’s specified geographic scope. This understanding of geographic scope limitations is highly implausible and, indeed, either unconstitutionally discriminatory or unconstitutionally arbitrary. Failure to give effect to such provisions does not violate the Full Faith and Credit Clause. Rather, under the Supreme Court’s analysis in Franchise Tax Board v. Hyatt, such provisions violate the Full Faith and Credit Clause. Understood as choice-of-law rules, geographic scope limitations are binding on the courts of the enacting state, and other states may take them into account in determining whether to apply the law of the enacting state. But, if the forum’s choice-of-law rules select the law of the enacting state as the governing law, the constitutional obligation of U.S. states to respect the laws of their sister states poses no impediment to application of the statute’s substantive provisions to cases beyond the statute’s specified geographic scope.

William S. Dodge (University of California, Davis) and Wenliang Zhang (Renmin University of China) have posted Reciprocity in China-U.S. Judgments Recognition on SSRN.

The abstract reads:

The conventional wisdom is that China and the United States do not recognize each other’s court judgments. But this is changing. A U.S. court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of U.S. judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries’ systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established at the state level and generally do not require reciprocity. This Article also looks at possibilities for future cooperation in the enforcement of foreign judgments, through a bilateral treaty, a multilateral convention, and the application of domestic law. It concludes that progress in the recognition and enforcement of China-U.S. judgments is most likely to come from continued judicial practice under existing rules and from China’s shifting approach to reciprocity.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

Christopher Marsden (University of Sussex) has posted Transnational Internet Law on SSRN.

The greatest, and certainly to a Westphalian nation-state-centered universe most revolutionary, challenge for regulation is the increasing co-operation between national, regional and international networks of regulators, to regulate the Internet. Reidenberg coined the term ‘lex informatica’ to explain its transnational legal nature, based on Berman and Kaufman’s analysis of mediaeval lex mercatoria, rather than Jessup’s transnational law. In Part 2, I briefly consider the technical standards that permit Inter-networking and thus the Internet. Part 3 examines how standards – including commercial and legal standards – have created a transnational lex informatica. In Parts 4-5, I focus on two phenomena of the transnational Internet law evolution. The first is governance by contract for all commercial transactions, even those that are ostensibly free of monetary value, in which the contractors are trading private information for advertising revenue. The second is the ‘open Internet’, laws protecting some aspects of network neutrality.

The paper is forthcoming in Peer Zumbansen (ed.), Oxford Handbook of Transnational Law (OUP 2020). It can be downloaded here.

Gisela Rühl (Friedrich-Schiller-University Jena and Humboldt-University of Berlin) has posted Settlement of International Commercial Disputes Post-Brexit, or: United We Stand Taller on SSRN.

The abstract reads:

The European market for the settlement of international commercial disputes is currently dominated by London. According to official statistics, about 80% of the cases brought before the London Commercial Court involve at least one foreign party. And in about 50% of the cases both parties are foreign. Obviously, the London Commercial Court is a popular forum for the settlement of international commercial disputes. And, obviously, it has an international appeal that is – at least in Europe and at least thus far – second to none.The remaining EU Member States, however, are not sleeping. In fact, over the course of the last years the prospect of Brexit has induced some of them to take measures designed to make their civil justice systems more attractive for international commercial parties: Germany, for example, established two first instance, international commercial chambers at the Regional Courts in Frankfurt and Hamburg in 2018 which offer to conduct proceedings in English. France created an English language chambre internationale at the Paris Court of Appeal in March 2018 which complements and adds a second instance to the English language chamber at the Paris Commercial Court that has been operating since November 2010. The Netherlands inaugurated the English language Netherlands Commercial Court and the Netherlands Commercial Court of Appeal in January 2019. And other countries, notably Belgium and Switzerland are contemplating the establishment of one or more specialized courts to deal with international disputes. Quite clearly: the European market for international commercial litigation is on the move. And while some of the above mentioned chambers and courts were in the making before the UK decided to leave the EU in 2016, there can be little doubt that the prospect of Brexit has fuelled the development. The interesting question, however, is whether the recent trend to establish international commercial chambers and courts will actually yield any success? Will companies decide to come to the continent – rather than to London – to settle their disputes after Brexit? As a matter of principle, the odds are not too bad: After all the UK will lose its access to the European Judicial Area once Brexit becomes fully effective, namely when the transition period provided for in the Withdrawal Agreement expires. English court proceedings will then no longer benefit from the many European Regulations that ease the settlement of international disputes and judicial cooperation in cross-border civil matters. At least for companies which seek access to the European Judicial Area, Brexit will, therefore, make it less attractive to settle a dispute in London.The following chapter takes this observation as an occasion to explore the consequences of Brexit for the settlement of international commercial disputes in more detail. It argues that no court in the remaining Member State seems in a position to present itself as a serious alternative to the London Commercial Court. It is, therefore, suggested that the EU should step in and create a European Commercial Court. This Court would provide European companies with an international forum in the European Judicial Area after Brexit and would also attract disputes that would otherwise be settled before other international commercial courts or international arbitration tribunals.

The paper is forthcoming in Jörn Axel Kämmerer, Hans-Bernd Schäfer (eds), Brexit and the Law. An Interdisciplinary Study, Edward Elgar.

Giesela Rühl (Friedrich-Schiller-University Jena and Humboldt-University of Berlin) has posted Private International Law Post-Brexit: Between Plague and Cholera on SSRN.

The abstract reads:

Over the course of the last two decades, the European legislature has adopted a large number of regulations dealing with private international law. As long as the UK was a member of the EU these regulations were also applicable in the UK. However, now that Brexit has actually taken place, they only apply by virtue of the Withdrawal Agreement whereas they will cease to apply as soon as the transition period provided for in the Withdrawal Agreement expires. The following contribution takes this finding as an opportunity to take a closer look at the future relationship between the EU and the UK in private international law. It analyses the corresponding British proposals and argues that the relatively best option for both the UK and the EU would be the adoption of a new bilateral agreement that either provides for continued application of the existing EU instruments or closely replicates these instruments.

The paper is forthcoming in the Revue de Droit Commercial Belge/Tijdschrift voor Belgisch Handelsrecht.

Giesela Rühl (University of Jena) has posted Smart (Legal) Contracts, or: Which (Contract) Law for Smart Contracts? on SSRN.

The abtract reads:

The law applicable to smart contracts is a neglected topic. At times it is even discarded as irrelevant or unnecessary. In fact, many authors claim that smart contracts especially when stored and executed with the help of blockchain technology make contract law and, in fact, the entire legal system obsolete. “Code is law” is the frequently (mis-) cited catchphrase. In the following chapter I will challenge this view and argue, first, that smart contracts need contract law just as other, traditional contracts, and, second, that the applicable contract law can – at least in most cases – be determined with the help of the traditional rules of private international law.

The paper is forthcoming in Benedetta Cappiello & Gherardo Carullo (eds.), Blockchain, Law and Governance, Springer.

William S. Dodge (University of California, Davis) has published The New Presumption against Extraterritoriality in the Harvard Law Review.

Canons of statutory interpretation are sometimes said to promote continuity and stability in the law. Yet it is widely acknowledged that canons themselves often change. The presumption against extraterritoriality is a prime example. It evolved from a rule based on international law, to a canon of comity, to a tool for finding legislative intent. The presumption then fell into disuse for nearly forty years until it was reborn in EEOC v. Arabian American Oil Co. (Aramco) and substantially revised in Morrison v. National Australia Bank Ltd.

This Article makes three contributions. First, it describes the evolution of the presumption against extraterritoriality over two centuries, providing a detailed account of change in an important canon of interpretation. Second, the Article describes the new, post-2010 presumption, arguing — contrary to the conventional wisdom — that the current version of the presumption is superior to previous ones. Third, the Article addresses the problem of changing canons. It argues changing canons constitute a form of dynamic statutory interpretation, which imposes certain responsibilities: to justify the changed canon in normative terms, to explain the need for change, and to mitigate the transition costs.

The article can be freely accessed here.

Luis de Lima Pinheiro (university of Lisbon) has posted Public Policy and Private International Law – Portugal on SSRN.

The abstract reads:

The present report is aimed at describing the concept, legal framework, and features of the public policy clause in the Portuguese legal order, and at giving an account of the main applications of this clause in modern Portuguese case law and literature (marriage, children, custodianship, succession, contract, non-contractual obligations, property, intellectual property, and corporate).

The report deals mainly with choice of law, but reference is also made to the recognition of foreign judgments, since the public policy features and applications are to a large extent common in both contexts.

Portuguese courts tend to respect the exceptionality of the public policy clause. In recent case law, only a few judgments have deviated from this guideline, namely concerning the right of some heirs to a legal portion of the estate. In the vast majority of situations, the arguments based upon international public policy considerations were not accepted by the courts.

The paper is forthcoming in Public Policy and Private International Law (Olaf Meyer ed., Edward Elgar). It can be downloaded here.

Symeon Symeonides posted on SSRN the Annual Survey of American Choice-of-Law Cases for 2019, now in its 33rd year.

This is the Thirty-Third Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 32 years: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2019 and posted on Westlaw by December 31, 2019. Of the 1,404 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and in particular choice of law. The Survey proceeds in four parts. The first describes fourteen cases decided by the United States Supreme Court. The second part discusses judgments delineating the reach of federal law in cases with foreign elements (extraterritoriality). The third part focuses on the choice-of-law part of conflicts law, in both interstate and international cases. The fourth part deals with the recognition of sister state and foreign country judgments, as well as domestic and international arbitral awards.