LSN: International Choice of Law (Topic)最新文献

{"title":"The Challenge of Accommodating Foreign Law in Domestic Courts and the Continuing Relevance of Private International Law","authors":"Louise Ellen Teitz","doi":"10.4337/9781789906905.00030","DOIUrl":"https://doi.org/10.4337/9781789906905.00030","url":null,"abstract":"U.S. courts and lawyers are used to considering “foreign law” and making comparative law judgments about whose law to apply, especially since content-selecting theories of choice of law have become the dominant approach to choice of law in the U.S. for domestic state/state conflicts. But as the number of cross-border cases in U.S. courts continues to grow, so does the need to accommodate foreign law in domestic court conflicts or private international law determinations. There is an inclination to treat decisions on choice of law for wholly U.S. cases the same as those that include an international element. <br><br>When the foreign law is not that of a sister state or even a common-law jurisdiction, courts become intimidated. The impact of the “foreignness” on the process of determining and applying the law continues to create uncertainty and inconsistency in U.S. caselaw, even after more than fifty years of a specific procedural law in federal court, Federal Rule of Civil Procedure 44.1, which has itself become a model for the majority of state court procedural rules. The procedure envisioned by the rule and the related Advisory Committee notes is a flexible, open-ended one that in effect requires the court to analyze the process of selecting the law to apply in much the way it does in a domestic case. What becomes problematic is (1) how we ascertain the content of that foreign law and (2) what happens when parties fail to indicate that foreign law should be applied. The former issue, ascertaining the content of foreign law, has received significant attention in U.S. courts, including in the Supreme Court this past term in Animal Science v. Hebei, a unanimous decision about the level of deference to be accorded a foreign sovereign’s determination of its own law. <br><br>The author considers four aspects of foreign law in domestic courts. First, the author examines the issue of ascertaining the content of foreign law, as demonstrated by the recent U.S. Supreme Court Case of Animal Science Products, Inc. v. Hebei Welcome Pharmaceuticals Co. Second, the author analyzes the important and growing counter-trend in state legislatures to limit or ban the use of foreign law in state courts through anti-foreign law or “anti-Sharia” statutes. Third, the author reflects on the continuing trend of federal and state courts to find that the parties have either waived applying the foreign law or consented to forum law if they have not raised the issue of what law should apply. Lastly, the author considers some existing mechanisms for cooperation in determining foreign law and evaluates whether any further movement for global instruments or cross-border solutions are likely.<br>","PeriodicalId":280338,"journal":{"name":"LSN: International Choice of Law (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121929470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justice L’Heureux-Dubé's Cosmopolitan Legacy: The Value of Comparative Analysis in the Evolution of the Choice of Law Rules Governing Movable Property","authors":"C. Walsh","doi":"10.2139/SSRN.2738736","DOIUrl":"https://doi.org/10.2139/SSRN.2738736","url":null,"abstract":"Justice L'Heureux-Dube is well known, in both academic and judicial circles, as a leader in the application of comparative analysis to the resolution of the universal issues with which family law must contend. Perhaps less well known is her role in bringing pluralistic legal sources to bear in the working out of commercial law problems. Yet she has often been in the forefront here as well, relying on comparative sources to illuminate our understanding of issues as far ranging as the appropriate integration of standard form clauses in insurance contracts, the substantive content of Canadian maritime law, the distinguishing characteristics of arbitration, and the obligation of a creditor to give a defaulting debtor a reasonable opportunity to find other financing before proceeding to realise on its security. In homage to the cosmopolitan legacy of Justice L'Heureux-Dube, this article focuses on the potential benefits of comparative analysis to the area of choice of law for real security in movable property.","PeriodicalId":280338,"journal":{"name":"LSN: International Choice of Law (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127874177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conflict of Laws Issues in International Arbitration: Practice and Trends","authors":"A. Maniruzzaman","doi":"10.1093/ARBITRATION/9.4.371","DOIUrl":"https://doi.org/10.1093/ARBITRATION/9.4.371","url":null,"abstract":"This paper examines the different methods of conflict of laws or private international law that arbitrators follow in order to determine the proper law or applicable substantive law of a contract when the choice of law provision is absent. It is shown that there are two principal trends in those methods that lead respectively to the theories of localization and delocalization or denationalization of international arbitration.The arbitrator's freedom of will plays an important role towards such denationalization. However, to what extent arbitrators can exercise that freedom is a matter of some controversy. On the issues of choice of law theory and practice, the paper attempts to offer some practical insights.","PeriodicalId":280338,"journal":{"name":"LSN: International Choice of Law (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1993-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116661900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}