Article: Sovereignty, Territoriality, and the Enforcement of Foreign Judgments

George A. Rutherglen 

University of Virginia School of Law

James Y. Stern 

William & Mary Law School

February 1, 2014

Virginia Public Law and Legal Theory Research Paper No. 2014-15

Abstract:

Over the course of the twentieth century, the effect of state boundaries as hard-and-fast limits on judicial and legislative jurisdiction steadily eroded. International Shoe Co. v. Washington stands as a landmark precedent, replacing traditional requirements that the defendant or the defendant’s property be present in the forum state at the outset of litigation with a regime requiring only that the defendant have certain “minimum contacts” with the forum. That case, concerned with personal jurisdiction over a corporation, was consistent with similar transformations elsewhere: personal jurisdiction over natural persons, choice of law, and extraterritorial application of forum statutory law. Altogether, these developments are part of a wider revolution in jurisdictional practices, which began before World War II with Legal Realism and continued into the last decades of the twentieth century. 

It may therefore come as something of a shock to discover that strict territorial limits on sovereign power have never been abandoned - in fact, never seem to have been questioned - as an absolute prerequisite for enforcement of judgments. Enforcement of a judgment, and especially a foreign judgment, does not become possible until the defendant or the defendant’s property can be found within the enforcing forum at the onset of enforcement proceedings. The original adjudicating court (conventionally designated F1) might be able to invoke liberal and flexible concepts of judicial and legislative jurisdiction and so reach a wider range of matters than would have traditionally been possible, but the enforcing court (F2) cannot. Put differently, F1 cannot also serve as F2 unless it meets standards of presence and territoriality. Presence of the defendant or the defendant’s property within F2 remains a prerequisite for enforcement of judgments there. Despite a century of erosion and decay in F1, the strict territorial theory remains alive and well in F2. This article seeks to explain the persistence of strict territoriality as a limit on the enforcement of judgments.

Number of Pages in PDF File: 28

Disponível em: <http://ssrn.com/abstract=2394620>. Acesso em 20 fev. 2014.

Article: Exclusive Choice-of-Court Agreements as a Derogation from Imperative Norms

Jürgen Basedow 

Max Planck Institute for Comparative and International Private Law

December 5, 2013

Essays in Honour of Michael Bogdan, pp. 15-31, Patrik Lindskoug, Ulf Maunsbach, Göran Millqvist, Per Samuelsson, and Hans-Heinrich Vogel, eds., Juristförlaget i Lund, 2013 

Max Planck Private Law Research Paper No. 14/1

Abstract:

By an exclusive choice-of-court agreement the parties to a contract may avoid the imperative provisions of a country whose courts would have jurisdiction in the absence of such an agreement. A comparative survey shows that the reactions of the deselected courts differ considerably in European countries. While some courts accept their deselection, others invoke the overriding mandatory character of the provisions they would have enforced in order to disregard the choice-of-court agreement. The article discusses the proper approach under the recast version of the Brussels I Regulation, under other emerging international rules and under national law. It distinguishes the deselection of a forum from the deselection of a national law and advocates the recognition of forum selection clauses even where they lead the non-application of mandatory laws of the deselected forum.

Acknowledgement: This contribution is published in this Research Paper Series as a part of the Essays in Honour of Michael Bogdan with the generous and exceptional permission of the rights owner, Juristförlaget i Lund.

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2390620>. Acesso em 20 fev. 2014.

Article: Stock Exchange Law: Concept, History, Challenges

Andreas M. Fleckner 

Max Planck Institute for Comparative and International Private Law

Klaus J. Hopt 

Max Planck Institute for Comparative and International Private Law; European Corporate Governance Institute (ECGI)

June 16, 2013

Virginia Law & Business Review (VLBR), Vol. 7, No. 3, pp. 514-559, 2013

Max Planck Private Law Research Paper No. 14/4

Abstract:

Stock exchange law is a field that is highly influenced by economic, social, and political factors. This makes research on the concept and on the history of stock exchange law an interdisciplinary challenge: researchers have to link studies of lawyers and legal historians with the works of the social sciences’ other branches, such as economic and social history, political economy, and contemporary economics. The number of sources that require investigation and the difficulties of their interdisciplinary analysis may explain why the fundamentals of stock exchange law and, more generally, of capital markets or securities law have received less attention so far than their economic, social, political, and legal weight would call for. 

This article has two purposes. First, we would like to point readers to the concept and history of stock exchange law as an important gap in contemporary research. Second, we hope to inspire such research by presenting a brief overview of the most important factors and events that could form the core of a comprehensive account. For these purposes, we will refrain from summarizing secondary sources, but instead try to bring readers in direct contact with the primary sources that we consider relevant. It goes without saying that our overview will be neither exhaustive nor objective, but rather selective and subjective. 

Part I introduces the reader to the term ‘bourse,’ as stock exchanges are referred to in French, German, and many other languages, as well as the rules that constitute ‘stock exchange law.’ Part II outlines the four stages in the history of stock exchange law: the Middle Ages and the Early Modern Era (A.), Absolutism and Mercantilism (B.), Industrialization (C.), and National Legislation and European Harmonization (D.). Part III highlights four contemporary challenges that policymakers from all over the world currently have to deal with: profit orientation, internationalization, fragmentation, and automation. Part IV concludes with thoughts on the future of stock exchange law. 

Acknowledgement: This article is published in this Research Paper Series with the kind permission of the Virginia Law & Business Review in accordance with its Copyright Agreement.

Number of Pages in PDF File: 48

Disponível em: <http://ssrn.com/abstract=2068574>. Acesso em 20 fev. 2014.

Article: Comparative Law and its Clients

Jürgen Basedow 

Max Planck Institute for Comparative and International Private Law

December 29, 2013

American Journal of Comparative Law, Vol. 62, No. 4, 2014, Forthcoming

Max Planck Private Law Research Paper No. 14/2

Abstract:

Comparative law is one method of legal research as an alternative to, or alongside, others. Its significance for the finding and evolution of the law has not always been undisputed (Part 1). In the present era of globalization it is, however, beyond doubt that the legal system of a country has to take into account the legal developments in other states. While the need for comparative legal research can therefore hardly be questioned any longer, such research may pursue very different objectives. They emerge from a closer look at the development of comparative law as an academic discipline (Part 2). The subsequent elaboration of different purposes of comparative investigations (Part 3) will finally take us to some reflections on what may be called the various "customers" of comparative law who determine these purposes (Parts 4-8). The message of this paper is twofold: First, we should accept that research in comparative law, like research in other fields, is conducted with a view to certain expectations from outside the discipline, and the results of this research serve objectives defined by those "clients" of comparative law. And second, let us realize the great variety of such objectives which determine the style and method of comparative law investigations. In fact, the embeddedness of comparative law enquiries in certain sectors of practice makes usefulness the primary yardstick for the evaluation of the methods applied. 

Acknowledgement: This pre-print version is published in this Research Paper Series with the kind permission of the American Journal of Comparative Law in accordance with its Author Guidelines.

Number of Pages in PDF File: 36

Disponível em: <http://ssrn.com/abstract=2391171>. Acesso em 20 fev. 2014.

Article: The Procedural Rule of Law: Examining Waldron's Argument on Dignity and Agency

Sanne Taekema 

Erasmus University Rotterdam (EUR) - Erasmus School of Law

February 5, 2014

Published in: Annual Review of Law and Ethics, Volume 21, The Rule of Law-Principle, edited by B.S. Byrd, J. Hruschka, and J.C. Joerden, Berlin: Dunckler and Humblot 2013, pp. 133-146. 

Abstract:

Among recent rule of law scholarship, the work of legal philosopher Jeremy Waldron stands out by placing emphasis on the procedural element in the rule of law. The implications of a procedural view of the rule of law are not completely clear, however. The article discusses Waldron's main line of argument and the way his theory diverges from the standard typologies. It argues that there are two weaknesses in his argumentation and that these can be remedied to a large extent by linking the rule of law work more firmly to his account of dignity and to Lon Fuller’s interactionism. I will then discuss his view of the rule of law in relation to international law and argue that he does not fully understand the importance of the interrelations of national and international law for conceptualizing the rule of law. Again, turning to another part of his work that does not concern the rule of law directly provides a source of argument, this time the idea of ius gentium, which can support a different reading of the rule of law as transnational. Thus, by reconstructing Waldron's argument I hope to show that a procedural conception of the rule of law is important in order to relate the rule of law to changing legal circumstances.

Number of Pages in PDF File: 17

Disponível em: <http://ssrn.com/abstract=2391228>. Acesso em 20 fev. 2014.

Article: International Human Rights Law and the International Court of Justice

Eva R. Rieter 

Radboud University Nijmegen - Faculty of Law

January 18, 2014

Abstract:

This report, prepared for the Committee on International Human Rights Law of the International Law Association, examines the increased references by the ICJ to decisions by human rights bodies as well as its attitude towards the position of the individual in general, with a focus on its case law on the extraterritorial application of human rights treaties, on its practice regarding provisional measures involving human beings and on the issue of diplomatic protection. It concludes that given its function and its dependence on the cases and requests brought before it, the ICJ very often is not in a position to contribute to human rights law, but its increasing sensitivity to the fate of human beings has nevertheless contributed to the humanization of international law and its increasing openness to cross-referencing does validate, directly or indirectly, the approach of the supervisory bodies to human rights treaties dealing with individual complaints.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2393651>. Acesso em 20 fev. 2014.

Decision: French Supreme Court Rules in Pinckney

by GILLES CUNIBERTI on FEBRUARY 3, 2014

On 22 January 2014, the French supreme court for civil and criminal matters (Cour de cassation) delivered its decision after the Pinckney ruling of the Court of Justice of the European Union.

The claim before French courts was one of copyright infringement against an Austrian company for manufacturing CDs which were later sold on the internet by an English company.

The French supreme court held that the accessibility of the website of the English company in France suffices to found the jurisdiction of French courts over the Austrian company as the alleged loss was suffered in France:

l’accessibilité, dans le ressort de la juridiction saisie, d’un site Internet commercialisant le CD argué de contrefaçon est de nature à justifier la compétence de cette juridiction, prise comme celle du lieu de la matérialisation du dommage allégué.

For years, the Court had ruled that mere accessibility of a website in France was not enough to grant jurisdiction to French courts, and that directed activity had to be demonstrated. Time will tell whether the Court will also give up the directed activity test under the French common law of international jurisdiction.

Disponível em: <http://conflictoflaws.net/2014/french-supreme-court-rules-in-pinckney/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 20 fev. 2014.

Article: Recognition and Enforcement of Foreign Judgments in Canada

Antonin I. Pribetic 

Himelfarb Proszanski 

January 15, 2014

Ontario Bar Association Institute 2014, 'Internationalizing Commercial Contracts' 

Abstract:

This paper provides an overview of the governing conflict of laws principles for the recognition or enforcement of foreign judgments, including an analysis of the recent Court of Appeal for Ontario decision in Yaiguaje et al. v. Chevron Corporation et al. and its implications for the recognition and enforcement of foreign judgments, generally. The issue of state immunity as an obstacle to foreign judgment enforcement is also considered.

Number of Pages in PDF File: 47

Disponível em: <http://ssrn.com/abstract=2379721>. Acesso em 20 fev. 2014.

Article: The International Market for Contracts -- The Most Attractive Contract Laws

Gilles Cuniberti 

University of Luxembourg

February 10, 2014

Northwestern Journal of International Law & Business, Vol. 34, 2014, Forthcoming

University of Luxembourg Law Working Paper No. 2014-2

Abstract:

The aim of this Article is to contribute to a better understanding of the international contracting process by unveiling the factors which influence international commercial actors when choosing the law governing their transactions.

Based on the empirical study of more than 4,400 international contracts concluded by close to 12,000 parties participating in arbitrations under the aegis of the International Chamber of Commerce, the Article offers a method of measuring the international attractiveness of contract laws. It shows that parties’ preferences are quite homogenous and that the laws of five jurisdictions dominate the international market for contracts. Among them, two are chosen three times more often than their closest competitors: English and Swiss laws. 

The Article then inquires which features made these laws more attractive than others and seeks to verify whether the postulate that international commercial parties are rational actors is true. It concludes that while some parties might have the resources to study the content of available laws before deciding which one to choose, others have no intention of investing such resources and are happy to rely on cheaper means to assess the content of foreign laws, including proxies. Furthermore, some parties suffer from cognitive limitations, the most important of which being the fear of the unknown and the correlative need for selecting a law resembling their own. Finally, unsophisticated parties might not fully appreciate the extent of their freedom to choose the law governing their transaction and might wrongly believe that it is constrained by largely irrelevant factors such as the venue of the arbitration.

Number of Pages in PDF File: 50

Disponível em: <http://ssrn.com/abstract=2393672>. Acesso em 13 fev. 2014.

Article: The Dynamics and Global Implications of Subglobal Carbon-Restricting Regimes

Juscelino F. Colares 

Case Western Reserve University School of Law

January 27, 2014

25 Georgetown International Environmental Law Review 417 (2013)

Case Legal Studies Research Paper No. 2014-04

Abstract:

The European Union and Australia have enacted comprehensive carbon-restricting reforms that will affect both domestic and foreign industries. After describing these reforms in detail, the article develops a microeconomic analytical model that explains the impact these regimes have on the dynamics of inter-firm competition in carbon-restricting nations and how they will also influence technology choices by certain industries in carbon-friendly nations. Specifically, exporters and producers operating in vertically-integrated industries in carbon-friendly nations will increasingly elect carbon-efficient technologies to minimize costs as they adjust to a changing international regulatory environment. The article hypothesizes that this shift in the carbon intensity of production will cause these industries to form coalitions with other pro-environment groups to pressure national governments for legislative and global carbon-restricting reforms that reduce carbon leakage and losses from trading with industries in carbon-laggard nations. Because these cumulative developments will eventually lead to a binding global emissions-stabilizing agreement, pursuant to which border measures will be taken, the article offers a few suggestions for reducing potential conflicts between the trade and climate change regimes.

Number of Pages in PDF File: 33

Disponível em: <http://ssrn.com/abstract=2386137>. Acesso em 13 fev. 2014.

Article: The Concept of Jus Post Bellum in International Law: A Normative Critique

Eric De Brabandere 

Grotius Centre for International Legal Studies

January 29, 2014

Eric De Brabandere, ‘The Concept of Jus Post Bellum in International Law: A Normative Critique, in Carsten Stahn, Jennifer S. Easterday, and Jens Iverson (eds.), Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014) 

Leiden Law School Research Paper

Grotius Centre Working Paper 2014/015-PIL 

Abstract:

This chapter examines the usefulness and accuracy of jus post bellum as a legal concept. It argues that the concept presents a challenge to the objectivity of the post-conflict phase by linking the rights and obligations of foreign actors to the legality of the use of force, or by bringing together already existing obligations. It questions to what extent there is a legal void to which the concept would respond. It further discusses dilemmas that the concept may pose in relation to the ad hoc and neutral character of post-conflict reconstruction, including existing rules on responsibility for post-conflict reconstruction.

Number of Pages in PDF File: 19

Disponível em: <http://ssrn.com/abstract=2387552>. Acesso em 13 fev. 2014.

Article: Requiring Three Years of Real-World Legal Writing Instruction: Law Students Need It; Prospective Employers Want It; The Future of the Legal Profession Demands It

Adam Lamparello 

Indiana Tech -- Law School

Charles E. MacLean 

Indiana Tech Law School

January 1, 2014

Abstract:

Part I of this three-part series set forth a blueprint for change. In this essay, we get more specific and propose a three-year legal writing curriculum that is designed to mirror the actual practice of law, from start to finish, and provide alternative paths for students who prefer to focus on transactional drafting or alternative dispute resolution. In so doing, we include: (1) required courses for each of the six semesters of law school; (2) a discussion of the practical skills that students will acquire in each course; (3) electives that students may take to complement their required courses; and (4) suggestions for textbooks and other materials. In our view, law students should not just learn to "think like lawyers," but also to "do what lawyers do." They should graduate with knowledge of how law is practiced, and not merely how it is acquired. This essay continues that quest.

Number of Pages in PDF File: 27

Disponível em: <http://ssrn.com/abstract=2385744>. Acesso em 13 fev. 2014.

Article: Assessing Treaty-Based Investor-State Dispute Settlement: Abandon, Retain or Reform?

Christian Campbell 

Center for International Legal Studies

Sophie Nappert 

Three Verulam Buildings

Luke R. Nottage 

University of Sydney - Faculty of Law; University of Sydney - Australian Network for Japanese Law

June 14, 2013

Sydney Law School Research Paper No. 13/40

Abstract:

Treaty-based investor-state dispute settlement (ISDS) is attracting increasing public debate. Particular concerns involve treaty provisions allowing investors from the home state to initiate arbitration claims directly against the host state for allegedly violating substantive rights (eg relating to expropriation) guaranteed by regional and bilateral investment treaties or free trade agreements.

Some commentators and a few countries now favour abandoning such protections altogether, leaving foreign investors to the vicissitudes of domestic law and court procedures in the host state, or of any inter-state process under customary international law or as agreed in investment treaties. Others suggest that treaty practice and international arbitrators' rulings are adequate, so no change is needed to this system. A third group seeks a middle way, proposing various procedural and substantive law reforms to re-balance private versus public interests involved in promoting and protecting cross-border investment.

This paper is based on an Open Letter derived from an online form publicised among those familiar with such international investment law issues. Almost all favoured the middle way, with considerable agreement on several possible reforms. These insights should prove useful in framing the ongoing debate, negotiations over new investment treaties, and perhaps even investor-state arbitration proceedings relating to existing treaties.

Number of Pages in PDF File: 29

Disponível em: <http://ssrn.com/abstract=2280182>. Acesso em 7 fev. 2014.