2009

TABLE OF CONTENTS

FOREWORD

ABBREVIATIONS

DOCTRINE

PARTY AUTONOMY IN INTERNATIONAL FAMILY AND SUCCESSION LAW: NEW TENDENCIES

I. Introduction

II. New Tendencies

III. Choice of Law Agreements – Applicable Law

IV. Mediation – Divorce by Private Act

V. Conclusions

AFTER THE REVOLUTION – DECLINE AND RETURN OF U. S. CONFLICT OF LAWS

I. Introduction: The Aging Revolution

II. The Return of Politics: Same-Sex Marriage

III. The Return of Theory: Interdisciplinarity

IV. Conclusion: Ready for a New Restatement?

PRIVATE INTERNATIONAL LAW AND COMPARATIVE LAW: A RELATIONSHIP CHALLENGED BY INTERNATIONAL AND SUPRANATIONAL LAW

I. Introduction: A Classical Comparative Paradigm for a Classical PIL

II. Reasons for and Consequences of PIL Changes

III. Elements of Current PIL

IV. Searching for a Contemporary Comparative Paradigm for Current PIL

V. Teaching and Learning PIL on a Comparative Basis

VI. Some Final Remarks

DAMAGES FOR BREACH OF A CHOICE-OF-COURT AGREEMENT: REMAINING ISSUES

I. Introduction

II. Legal Bases of the Claim

III. Governing Law

IV. Jurisdiction

V. Enforceability of the Judgment in Other Countries

VI. Damages for Breach of a Choice-of-Law Agreement?

VII. Final Remarks

A FURTHER STEP TOWARDS A EUROPEAN CODE OF PRIVATE INTERNATIONAL LAW

I. Introduction

II. The Need for Uniform Conflict of Laws Rules on Succession

III. The Concept and Principles of the Proposal

IV. Key Concerns of the Actual Draft

V. Conclusions

PERSONAL IDENTITY AT A CROSSROAD BETWEEN PRIVATE INTERNATIONAL LAW, INTERNATIONAL PROTECTION OF HUMAN RIGHTS AND EU LAW

I. The Link Between Name and Personal Identity

II. Continuity of Name and Private International Law

III. Identity, Continuity and the European Convention on Human Rights

IV. The Case-law of the Court of Justice of the European Communities

THE APPLICATION OF FOREIGN LAW

I. Introductory Remarks

II. An Overview of the Actual Treatment of Foreign Law in EU Member States

III. Possible Actions on a European Level

IV. Conclusion

CONTRACTS FOR THE INTERNATIONAL CARRIAGE OF GOODS: JURISDICTION AND ARBITRATION UNDER THE NEW UNCITRAL CONVENTION 2008

I. Introductory Considerations

II. Purposes of the New UNCITRAL Convention 2008

III. Regulation of Jurisdiction and Arbitration under the ‘ The Hague Rules’ and the ‘ The Hague- Visby Rules’

IV. Regulation of Foreign Court Jurisdiction and Arbitration in the Hamburg Convention of 1978

V. The Provisions of the New UNCITRAL Convention 2008 on International Jurisdiction and Arbitration

PRIVATE INTERNATIONAL LAW IN CHINA: SELECTED TOPICS

CONTRACTUAL PARTY AUTONOMY IN CHINESE PRIVATE INTERNATIONAL LAW

I. Introduction

II. Choice of National Law

III. Choice of Supra-National Rules of Law

IV. Limitations on Party Autonomy

V. Concluding Remarks

RECENT DEVELOPMENTS WITH REGARD TO CHOICE OF LAW IN TORT IN CHINA

I. Introduction

II. Present Choice of Law Rules in Tort

III. Recent Changes with Regard to Application of Law in Tort

IV. Draft Law on Application of Law on Foreign- Related Civil Relationship

V. Conclusion

RECENT JUDICIAL COOPERATION IN CIVIL AND COMMERCIAL MATTERS BETWEEN MAINLAND CHINA AND TAIWAN, THE HONG KONG S. A. R. AND THE MACAO S. A. R.*

I. Introduction

II. Recent Judicial Cooperation between the Courts of Mainland China and Those of the Other Three Regions

III. Problems in Judicial Cooperation of the Mainland with Taiwan, the Hong Kong S. A. R. and the Macao S. A. R. and Possible Reforms

IV. Conclusion

LAW APPLICABLE TO ARBITRATION AGREEMENTS IN CHINA

I. Introduction

II. Development of the Methods for Designating the Law Applicable to Arbitration Agreements in China

III. The Current Situation with Respect to Law Applicable to Arbitration Agreements in China and the Problems therein

IV. Means to Improve the Designation of the Law Applicable to Arbitration Agreements in China

FOREIGN PRECEDENTS IN CHINESE COURTS

I. Introduction

II. The Applicability of Foreign Precedent in Chinese Courts

III. The Approaches to Determining the Content of Foreign Precedent

IV. The Approaches to Applying Foreign Precedents

V. Conclusions and Suggestions

CRIME OF LAW-BENDING ARBITRATION IN CHINESE CRIMINAL LAW AND ITS EFFECTS ON INTERNATIONAL COMMERCIAL ARBITRATION

I. The Creation of the Crime of Law- bending Arbitration

II. The Disagreements on the Crime of Law- bending Arbitration

III. Dichotomy on the Nature of Arbitration: the Key Point to the Question about the Crime of Law- bending Arbitration

IV. The Effects of the Crime of Law- bending Arbitration on International Commercial Arbitration

V. Conclusions

LAW APPLICABLE TO ARBITRATION CLAUSES IN CHINA: COMMENTS ON THE CHINESE SUPREME PEOPLE’S COURT’S DECISION IN THE HENGJI COMPANY CASE

I. Facts of the Decision

II. Principle of Autonomy of Arbitration Agreements and Its Application in China

III. Relative Independence of the Law Applicable to Arbitration Clauses

IV. Approaches to the Law Applicable to Arbitration Clauses

V. Conclusion

NATIONAL REPORTS

THE LATEST TRENDS IN LATIN AMERICAN PRIVATE INTERNATIONAL LAW: THE URUGUAYAN 2009 GENERAL LAW ON PRIVATE INTERNATIONAL LAW

I. Introduction: Justification for the Autonomy of the Regional Process of Codification of Private International Law in Latin America

II. The Uruguayan General Act on Private International Law

III. Contents of the General Act on PIL

THE INFLUENCE OF SWISS LAW ON QUEBEC’S 1994 CODIFICATION OF PRIVATE INTERNATIONAL LAW

I. Introduction

II. General

III. Some Specific Rules

IV. Conclusion

INITIAL OWNERSHIP OF COPYRIGHT IN A CINEMATOGRAPHIC WORK UNDER JAPANESE PRIVATE INTERNATIONAL LAW

I. Introduction

II. Substantive Law

III. Conflict of Laws

IV. Conclusion

LESS SURPRISE FOR SPOUSES MOVING WITHIN THE NORDIC COUNTRIES?

I. The 1931 Nordic Convention on Marriage Is Amended

II. What Is New?

III. Final Remarks

THE COMMON OPTIONAL MATRIMONIAL PROPERTY REGIME OF GERMANY AND FRANCE

I. The Genesis of the Common Regime

II. The Legal Background

III. The Competence of the Member States

IV. A Short Overview of the Substance of the COMPR

V. The COMPR as a Substantive Model for Europe?

VI. The PIL-Perspective

VII. A ‘Unification-Race’ within the EU?

VIII. Bilateral Treaty-Making: A Way for the CFR?

NEWS FROM UNCITRAL

INTERNATIONAL INSOLVENCY LAW: THE UNCITRAL EXPERIENCE WITH HARMONIZATION AND MODERNIZATION TECHNIQUES

I. Introduction

II. Harmonization and Modernization Techniques in the Insolvency Field

III. UNCITRAL’s Experience with Insolvency Texts

IV. Practice Guide on Cross-Border Insolvency Cooperation

V. Conclusion

COURT DECISIONS

‘MUTUAL TRUST’ AND ‘ARBITRATION EXCEPTION’ IN THE EUROPEAN JUDICIAL AREA: THE WEST TANKERS JUDGMENT OF THE ECJ

I. The Interactions between Civil Jurisdiction and Arbitration in the European Judicial Area

II. Anti-suit Injunctions in Support of Arbitration and their Recent Ban by the Court of Justice of the European Communities

III. The Evolution of the Concept of Mutual Trust in European Case Law

IV. The Different Perspectives Adopted by the House of Lords and by the European Court of Justice in West Tankers

V. The Far Reaching Scope of Mutual Trust with Respect to Arbitration as a Matter Excluded from the Scope of Application of Regulation No 44/ 2001

VI. The Effect of Arbitration Agreements on the Jurisdiction of National Courts in the Brussels System

JURISDICTION IN CASES RELATED TO A LICENCE CONTRACT UNDER ART. 5 ( 1) BRUSSELS REGULATION

I. Introduction

II. The Questions Referred for a Preliminary Ruling

III. The Concept of Licence Contracts in Community Private Law

IV. Methodological Clarifications on the Interpretation of the Brussels Regulation

V. Conclusions and Perspectives

EFFET UTILE OF THE REGULATION NO. 1346 AND VIS ATTRACTIVA CONCURSUS: SOME REMARKS ON THE DEKO MARTY JUDGMENT

I. Regulation No. 1346/2000 and Its Lack of Expressed Provisions on Jurisdiction over Actions Arising from Insolvency Proceedings and Relating to Them

II. Questions Referred to the ECJ and the Uniform and Autonomous Principle of vis attractiva Stated by the Court as a Way to Achieve the effet utile of the Regulation

III. Critical Remarks

IV. Achieving the effet utile of the Regulation by Applying the lex fori concursus in Order to Solve the Jurisdiction Issue Regardless of the Member State Where the Action is Brought

JURISDICTION TO SET ASIDE FOREIGN ARBITRAL AWARDS IN INDIA

I. Introduction

II. The Indian Supreme Court’s Decision in Venture Global

III. Judicial Review of Arbitral Awards: Legal Foundations and Procedural Remedies

IV. Jurisdiction to Set Aside Arbitral Awards

V. Legal and Practical Ramifications of the Venture Global Decision

VI. Conclusion

FORUM NON CONVENIENS AND LIS ALIBI PENDENS IN INTERNATIONAL LITIGATION IN PANAMA

I. Introduction

II. The Admission of the forum non conveniens Exception in the Conflicts of Jurisdiction in Panama

III. Legal and Jurisprudential Evolution of the forum non conveniens Exception

IV. The Defense of International lis pendens in Panamanian Private International Law

LIS ALIBI PENDENS AND RELATED ACTIONS IN CIVIL AND COMMERCIAL MATTERS WITHIN THE EUROPEAN JUDICIAL AREA

I. General Features of lis alibi pendens and Related Actions as Instruments of Coordination among State Jurisdictions

II. The EC Rules on lis pendens and Related Actions Contained in Regulation No. 44/ 2001 (‘ Brussels I’)

III. In Particular, the Requirements for the Application of the Rules on lis pendens: the Identity of the Cause of Action

IV. Some Problems Concerning Identity of the Parties

V. The Rule Contained in the Regulation Concerning the Determination of Temporal Priority

VI. A Brief Discussion of Some Proposals for Reform of the Rules on lis alibi pendens and Related Actions Contained in the Brussels I Regulation

MONEY IN PRIVATE INTERNATIONAL LAW: WHAT ARE THE PROBLEMS? WHAT ARE THE SOLUTIONS?

I. Introduction

II. The Notion of Money in Private International Law

III. Money Obligations in Private International Law

IV. Conclusion

INTELLECTUAL PROPERTY AND STATE IMMUNITY FROM JURISDICTION IN THE NEW YORK CONVENTION OF 2004

I. The Problem and Its Economic Relevance

II. Nature and Interpretation Criteria of Arts. 5, 10 and 14 of the Convention

III. The Negative Criteria of Jurisdiction Relating to Disputes in the Field of Primary Intellectual Property Rights

INDEX