Journal of Private International Law最新文献_第5页

Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases 欧盟内部民事案件判决的公开性和不执行性——对波兰-德国近期一些案件的评论

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2097214

Piotr Mostowik, Edyta Figura-Góralczyk

{"title":"Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases","authors":"Piotr Mostowik, Edyta Figura-Góralczyk","doi":"10.1080/17441048.2022.2097214","DOIUrl":"https://doi.org/10.1080/17441048.2022.2097214","url":null,"abstract":"The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented. After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy. The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45274468","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

Assisted suicide from the standpoint of EU private international law 从欧盟国际私法的角度看协助自杀

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2086523

Omar Vanin

引用次数: 0

Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection 跨国公司与越南的环境污染——实现国际私法在环境保护方面的潜力

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2096059

Thu Thuy Nguyen

引用次数: 0

The court’s discretionary power to enforce valid jurisdiction clauses: time for a change? 法院执行有效管辖权条款的自由裁量权：是时候改变了？

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2101189

Shahar Avraham-Giller

{"title":"The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?","authors":"Shahar Avraham-Giller","doi":"10.1080/17441048.2022.2101189","DOIUrl":"https://doi.org/10.1080/17441048.2022.2101189","url":null,"abstract":"The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44779229","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

Discretional elements in the Brussels Ia Regulation 布鲁塞尔Ia条例中的自由裁量要素

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2104683

Tobias Bachmeier, Martin Freytag

引用次数: 0

Journal of Private International Law Conference 2023, Singapore Management University- Call for Papers 国际私法学术会议，新加坡管理大学，2023 -征文

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2114181

引用次数: 0

Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure 合同履行地管辖权再探——以欧盟民事诉讼中的特征履行理论为例

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2101973

D. Levina

引用次数: 1

Current-day international child abduction: does Brussels IIb live up to the challenges? 当前的国际儿童绑架事件：布鲁塞尔IIb能否应对挑战？

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Journal of Private International Law Pub Date : 2022-05-04 DOI: 10.1080/17441048.2022.2080379

T. Kruger, L. Carpaneto, Francesca Maoli, S. Lembrechts, Tine Van Hof, Giovanni Sciaccaluga

引用次数: 0

Private international law and substantive liability issues in tort litigation against multinational companies in the English courts: recent UK Supreme Court decisions and post-Brexit implications 英国法院针对跨国公司的侵权诉讼中的国际私法和实质性责任问题:最近英国最高法院的判决和脱欧后的影响

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Journal of Private International Law Pub Date : 2022-01-02 DOI: 10.1080/17441048.2022.2051860

Mukarrum Ahmed

{"title":"Private international law and substantive liability issues in tort litigation against multinational companies in the English courts: recent UK Supreme Court decisions and post-Brexit implications","authors":"Mukarrum Ahmed","doi":"10.1080/17441048.2022.2051860","DOIUrl":"https://doi.org/10.1080/17441048.2022.2051860","url":null,"abstract":"This article examines the private international law and substantive liability issues in tort claims against UK based parent companies for the actions of their foreign subsidiaries. Arguments drawn from private international law’s largely untapped global governance function inform the analysis and the methodological pluralism manifested in the jurisdictional and choice of law solutions proposed. The direct imposition of duty of care on parent companies for torts committed by foreign subsidiaries is examined as an exception to the bedrock company law principles of separate legal personality and limited liability. In this regard, the UK Supreme Court’s recent landmark decisions in Vedanta v Lungowe and Okpabi v Shell have granted jurisdiction and allowed such claims to proceed on the merits in the English courts. This article assesses these decisions and their significance for transnational corporate accountability. The post-Brexit private international law regime and its implications for the viability of tort claims against parent companies are examined.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41878019","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

Financial torts and EU private international law: will the search for the place of “financial damage” ever come to an end? 金融侵权与欧盟国际私法:对“金融损害”发生地的寻找会结束吗?

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Journal of Private International Law Pub Date : 2022-01-02 DOI: 10.1080/17441048.2022.2056970

Frederick Rielaender

引用次数: 1