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Aligning State Sovereignty with Transnational Public Policy 国家主权与跨国公共政策的协调
Transnational Litigation/Arbitration Pub Date : 2018-12-01 DOI: 10.2139/ssrn.3301024
L. Trakman
{"title":"Aligning State Sovereignty with Transnational Public Policy","authors":"L. Trakman","doi":"10.2139/ssrn.3301024","DOIUrl":"https://doi.org/10.2139/ssrn.3301024","url":null,"abstract":"The rationale for “delocalizing” transnational public policy is not that domestic authorities lack the capacity to delineate the scope of transnational public policy. Rather it is that the public policy that is articulated solely through a domestic judicial lens can be fractionalized as national courts internalize public policy differently to comport with their discrete and sometimes conflicting domestic requirements. This Article uses controversial litigation in the United States and Russia to illustrate the disturbing ripple effect of domestic courts declining to enforce foreign judgments that have annulled arbitration awards. It proposes a way for domestic judges to apply transnational public policy to international commercial transactions, without displacing or circumventing domestic public policy. It applies this analysis to the “public policy exception” by which domestic judges decline to recognize and enforce international arbitration awards under the New York Convention.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127578169","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}
引用次数: 3
The Hague Conference and the Future of Private International Law – A Jubilee Speech 海牙会议与国际私法的未来——纪念演讲
Transnational Litigation/Arbitration Pub Date : 2018-10-01 DOI: 10.1628/RABELSZ-2018-0094
J. Basedow
{"title":"The Hague Conference and the Future of Private International Law – A Jubilee Speech","authors":"J. Basedow","doi":"10.1628/RABELSZ-2018-0094","DOIUrl":"https://doi.org/10.1628/RABELSZ-2018-0094","url":null,"abstract":"Anniversaries are days for remembrance of the past, for assessing the challenges of the present and for contemplating options for the future. Addressing these tasks I shall first take a look at the wider context of private international law and its embeddedness in the historic evolution of society, the economy and the international community (at I.). That evolution has created the need for a reliable transnational legal framework of private cross-border relations, something which is perceived anew under the impact of globalization in the present era. It primarily concerns the coordination of legal systems, i.e. the fields of cooperation between States (at II.) and choice of law (at III.). While the coordination methods implicitly accept the divergence of national legal systems, an increasing tendency aims at replacing them with common laws and values (at IV.). The observations in these areas are conducive to recommendations for future orientation. At the very end, the institutional basis of the discipline deserves closer attention (at V.).","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128128822","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}
引用次数: 0
A Successful Substantivist Carve-Out?: The Athens Convention as Uniform International Law 一个成功的实体主义分支?作为统一国际法的《雅典公约》
Transnational Litigation/Arbitration Pub Date : 2018-07-31 DOI: 10.2139/ssrn.3224010
Paul Myburgh
{"title":"A Successful Substantivist Carve-Out?: The Athens Convention as Uniform International Law","authors":"Paul Myburgh","doi":"10.2139/ssrn.3224010","DOIUrl":"https://doi.org/10.2139/ssrn.3224010","url":null,"abstract":"This paper examines the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 and its 2002 Protocol through a private international law lens, to evaluate the extent to which it functions as a successful ‘substantivist carve-out’ achieving international legal uniformity, and to determine the degree to which conflicts problems still bedevil passenger claims brought under the Athens regime. The paper concludes that the Athens regime is not a particularly successful uniform international law instrument, largely because of uncertainties surrounding its scope of application and operation as a mandatory exclusive code, the ability to easily circumvent its jurisdiction framework and shop for a more favourable forum, a lack of clarity regarding coverage of ‘personal injury’, and a messy and complicated relationship with global limitation of liability regimes. The Athens regime would undoubtedly be more effective if it enjoyed more widespread uptake amongst maritime jurisdictions. However, for a range of economic and political reasons, that seems unlikely for the foreseeable future.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126684832","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}
引用次数: 1
Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ 教授国际法院是一个坏案例——重新审视国内法院与国际法院的关系
Transnational Litigation/Arbitration Pub Date : 2018-07-13 DOI: 10.1007/978-3-662-62304-6_14
Raffaela Kunz
{"title":"Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ","authors":"Raffaela Kunz","doi":"10.1007/978-3-662-62304-6_14","DOIUrl":"https://doi.org/10.1007/978-3-662-62304-6_14","url":null,"abstract":"","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132944888","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}
引用次数: 2
Salini's Nature: Arbitrators' Duty of Jurisdictional Policing 萨利尼的性质:仲裁员的司法监督职责
Transnational Litigation/Arbitration Pub Date : 2018-06-27 DOI: 10.1163/15718034-12341373
Perry S. Bechky
{"title":"Salini's Nature: Arbitrators' Duty of Jurisdictional Policing","authors":"Perry S. Bechky","doi":"10.1163/15718034-12341373","DOIUrl":"https://doi.org/10.1163/15718034-12341373","url":null,"abstract":"\u0000This article examines the duty of jurisdictional policing that Salini v. Morocco inferred from the ICSID Convention. According to Salini, ICSID arbitrators must determine whether a dispute arises from an “investment” that satisfies an objective definition of that term, regardless of the subjective definition used by the parties to a case. Salini thus suggests that this duty cannot be waived or varied by the parties. Its proponents claim that Salini’s duty serves ICSID’s vital institutional interests. Moreover, ICSID can enforce Salini’s duty. Taken together, these considerations signal that Salini’s duty is owed not only to the parties to the case, but also to ICSID itself as an institution. As Salini migrates beyond ICSID to other investor-state tribunals, however, the nature of this duty may be revealed as not only institutional but systemic – a duty inherent in the investor-state arbitrators’ function that serves the interests of the investor-state dispute system.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133950087","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}
引用次数: 0
Reincorporations: A Comparison Between Greek and Cyprus Law 公司重组:希腊和塞浦路斯法律比较
Transnational Litigation/Arbitration Pub Date : 2018-05-14 DOI: 10.1108/IJLMA-04-2017-0098
Thomas Papadopoulos
{"title":"Reincorporations: A Comparison Between Greek and Cyprus Law","authors":"Thomas Papadopoulos","doi":"10.1108/IJLMA-04-2017-0098","DOIUrl":"https://doi.org/10.1108/IJLMA-04-2017-0098","url":null,"abstract":"This paper aims to analyse the legal framework of reincorporations and subsequent change of applicable law in Greece and Cyprus. A comparison between Greek Law and Cyprus Law is drawn. This paper highlights possible required reforms. Cyprus has a quite detailed legal framework of voluntary inbound and outbound reincorporations. While Greece has certain provisions on outbound reincorporations, it does not have any provisions on inbound reincorporations. The compatibility of these national provisions with internal market rules, as interpreted by the case law of the Court of Justice of the EU (CJEU), is discussed.,This paper follows a comparative approach. After a careful analysis of each national legal framework, a comparison between Greek law and Cyprus law follows. This paper also follows an EU law approach.,These two jurisdictions present some differences. Cyprus adopting the incorporation theory has a detailed, sophisticated and flexible legal framework of reincorporations. Although Greece adopting the real seat theory has some special provisions for outbound reincorporations, there are no specific provisions for inbound reincorporations. Inbound reincorporations are possible under Greek law, but the absence of detailed provisions is against legal certainty. Cyprus law on reincorporations could be used as an example for Greek legislature. However, possible EU harmonisation of seat transfers is expected to have an immense impact on national provisions for reincorporations.,Reincorporations constitute a significant corporate restructuring technique with important practical implications on the economy. Apart from academics, this paper attracts the interest of lawyers, managers, accountants, officers of supervisory and regulatory bodies and policymakers engaged with reincorporations.,This is one of the few academic papers comparing Greek and Cyprus company law and private international law. It is the first paper that compares the Greek and Cyprus legal framework of reincorporations.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130830441","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}
引用次数: 0
Petrobras in Bolivia: Is There a Rule of Law in the 'Primitive' World? 巴西石油公司在玻利维亚:“原始”世界有法治吗?
Transnational Litigation/Arbitration Pub Date : 2018-05-03 DOI: 10.2139/ssrn.3872856
F. Morosini, Michelle Ratton Sanchez Badin
{"title":"Petrobras in Bolivia: Is There a Rule of Law in the 'Primitive' World?","authors":"F. Morosini, Michelle Ratton Sanchez Badin","doi":"10.2139/ssrn.3872856","DOIUrl":"https://doi.org/10.2139/ssrn.3872856","url":null,"abstract":"What might lie behind a heterodox approach to legal disputes arising in the struggle for energy resources? Here, the State parties turn to bargained solutions, instead of reaching for remedies available in contracts and in investment treaties, as suggested by the mainstream literature on rule of law of the investment regime. The First Part of this case-note explores the main regulatory instruments put in place between Brazil and Bolivia in relation to the regulation of hydrocarbons, which include documents as diverse (from a normative perspective) as memorandum of understandings, gentlemen’s agreements, standard treaties, contracts and exchange of diplomatic letters. Part II explores the political momentum in Bolivia that gave rise to a referendum and later the Decree expropriating foreign corporations operating in the country, and introduces the legal remedies available to Brazil and Petrobras. Part III explores the aftermath of the case, describing the new contractual arrangements between Petrobras and YPFB and theorizing on the rule of law format that has employed through public-private negotiated processes. The case is concluded with a word of caution: mainstream explanations of what constitutes winning a case in international law and the legal processes involved therein need to be reconceptualized to include more holistic approaches and alternative legal formats.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128573631","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}
引用次数: 0
International Jurisdiction over Consumer Contracts 消费者合同的国际管辖权
Transnational Litigation/Arbitration Pub Date : 2017-09-30 DOI: 10.2139/ssrn.3045776
Martin Fries
{"title":"International Jurisdiction over Consumer Contracts","authors":"Martin Fries","doi":"10.2139/ssrn.3045776","DOIUrl":"https://doi.org/10.2139/ssrn.3045776","url":null,"abstract":"The Brussels Ia Regulation leaves businesses no feasible option for a choice of jurisdiction in cross-border B2C contracts. The recent judgment by the European Court of Justice in the Ryanair case confirms that the Court will not tolerate any attempts to circumvent the regulatory aim of effective consumer protection detailed in the Regulation. However, this consumer-friendly approach comes with some notable disadvantages that affect not only companies engaged in cross-border commerce, but the European Single Market as well. Innovations in procedural technology offer ways to cushion such drawbacks and relieve the pressure of assigning international jurisdiction to the domicile of one or the other contractual party.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126500719","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}
引用次数: 0
Submission to the Public Consultation on Proposed Amendments to the 2013 HKIAC Administered Arbitration Rules 向《2013年香港国际仲裁中心管理仲裁规则》修订建议公众谘询意见书
Transnational Litigation/Arbitration Pub Date : 2017-09-27 DOI: 10.2139/ssrn.3044218
B. Hayward
{"title":"Submission to the Public Consultation on Proposed Amendments to the 2013 HKIAC Administered Arbitration Rules","authors":"B. Hayward","doi":"10.2139/ssrn.3044218","DOIUrl":"https://doi.org/10.2139/ssrn.3044218","url":null,"abstract":"International commercial arbitration is renowned for its flexible procedure. But what if arbitrators could resolve disputes by simply asking themselves, 'who should win?' Would this be a fair way to resolve international commercial disputes? And would this be consistent with the commercial imperatives of parties who choose international commercial arbitration as a tool for managing their business risk? \u0000This paper is a submission to the public consultation on proposed amendments to the 2013 HKIAC Administered Arbitration Rules, initially opened on 29 August 2017. It recommends amendment of the conflict of laws methodology contained in the proposed Art. 36(1) HKIAC Rules, to incorporate a closest connection test - and in doing so, addresses themes arising from the questions posed immediately above. It argues that adoption of the closest connection test in HKIAC arbitration would be consistent with key principles reflected in the HKIAC Rules 2013, and would also be in the interests of the users of HKIAC arbitration.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116108035","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}
引用次数: 0
The Ethics and Empirics of Double Hatting 双重身份的伦理与经验
Transnational Litigation/Arbitration Pub Date : 2017-07-24 DOI: 10.2139/ssrn.3008643
M. Langford, D. Behn, R. Lie
{"title":"The Ethics and Empirics of Double Hatting","authors":"M. Langford, D. Behn, R. Lie","doi":"10.2139/ssrn.3008643","DOIUrl":"https://doi.org/10.2139/ssrn.3008643","url":null,"abstract":"Is it time to end the practice of double hatting in international adjudication? In this ESIL Reflection, we examine the practice of double hatting in the specific context of international investment arbitration. We ask three questions: how widespread is the practice; when is it a problem; and what can be done? In doing so, we introduce and develop new empirical findings but also make links between investment arbitration and broader practices in international adjudication.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117250147","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}
引用次数: 10
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