Hasil untuk "Private international law. Conflict of laws"

Machiko Kanetake

The decentralized international legal order arguably creates structural incentives for states to utilize INTERPOL—an entity of virtually universal membership—to reduce gaps in transnational police cooperation. One of INTERPOL’s iconic actions is the release of a Red Notice. It is the publication of decentralized requests by a member country or approved international entities such as the International Criminal Court (ICC),1 asking police worldwide to locate and, if applicable domestic law and treaties permit, provisionally arrest wanted persons or restrict their movement, pending extradition or surrender.2 Although INTERPOL does not have legal authority to oblige members to arrest persons in question, a Red Notice regularly leads to border stops or arrest pending extradition, travel or visa denials, and knock-on effects such as banking and employment difficulties. The fragmented international legal order may have paradoxically generated structural incentives to support a level of centrality represented by INTERPOL.

S. Dominelli

Human activities in outer space impose a reflection on the structural inadequacy of current connecting factors, such as the lex loci damni, which may not properly operate when all events are localised in areas (rather than a territory) not subject to the sovereignty of a State. By integrating space law principles and interests in conflict of law approaches, the aim of this work is to propose connecting factors which may apply in cases of satellite collisions or for torts in sub-orbital flights. Different constellations are created, each of which requires a specific assessment of the relevant interest which should mould specific solutions.

Narcisa Galeș, Dumitrița Florea

The principles of private international law are fundamental rules of a general character, which express the values, aims and guidelines of this branch of law and which underlie the elaboration, interpretation and application of conflict and procedural rules concerning legal relations with a foreign element. In concrete terms, the principles lay down the general orientation of the rules, guide the resolution of conflicts of laws and jurisdictions, provide a foundation for specific institutions (e.g. international public policy, party autonomy), and ensure the coherence and unity of private international law. The principles of private international law are of particular importance as they ensure the coherence and predictability of international legal relations and lay down clear rules on how to determine the applicable law, which court has jurisdiction and how to recognise the effects of foreign judgments. This enables individuals and companies to know which rules to refer to when entering into legal acts with foreign elements. Through these principles, States can prevent the application of foreign provisions that are contrary to their own fundamental values (e.g. respect for human rights, good morals). The balance between openness to foreign law and the protection of the national interest is thus guaranteed. In other respects, the principles enable foreign judgments to be recognised and enforced and facilitate cooperation between the judicial authorities of different States, which is essential in the context of globalisation and the increasing mobility of persons and capital.  By allowing parties to choose the applicable law, the principles foster confidence in international legal relations and the development of cross-border trade. The reality is that, without these principles, the same facts could be treated differently from one State to another, creating legal uncertainty and insecurity, and the principles offer solutions to avoid such conflicts. In a world where migration, outward investment and intermarriage are common, the principles of private international law provide the necessary framework for resolving complex disputes.

Jiabao Zhou

The Chinese Foreign Relations Law (‘the FRL’) – a collection of rules legalizing China's foreign policies – was enacted in 2023. While technically a set of policy goals and public law rules, it provides an opportunity to orient Chinese private international law (‘PIL’) towards sustainable development. Notably, the FRL connects Chinese PIL with sustainable development for the first time and revisits the conceptions of what is being understood as ‘domestic’ versus ‘foreign’, and ‘public’ versus ‘private’. This article explores how PIL can leverage this shift to accommodate sustainability as a normative value, foster positive interactions with foreign laws and courts, and develop a robust and tailored regulatory function. By doing so, Chinese PIL, as a form of foreign relations law, can expand its function beyond conflict resolution and develop a role in China's foreign policy and global sustainability governance.

Ekaterina Valerievna Fedulina, Daut Rasikhovich Akhmetvaliev

The article examines the topical issues of conflict-of-law rules’ use within the legal regulation of cross-border contractual relations. Purpose: to analyse the theoretical structure of conflict-of-law rules, the multiplicity and competition of connecting factors, the problem of renvoi, interpretive inconsistencies, and the limita-tions posed by overriding mandatory provisions and public policy exceptions; to high-lighting the difficulties arising in multilateral and digital contractual arrangements, including smart contracts and decentralised platforms, which undermine traditional con-cepts of localisation and jurisdiction. Results: the research allowed concluding that classical models of conflict regulation require revision in light of technological developments and the normative fragmentation of private international law. The article proposes a conceptual transition from territorially-based connecting factors to functionally adaptive mechanisms suitable for the digital legal environment.

Y. Nishitani

The presence of Asia in the global arena has become notable due to its thriving economy. Arguably, it is time to consider how private international law (or conflict of laws) should develop in Asia and what kind of opportunity it can engender, considering that private international law has the potential to promote economic and legal cooperation without unifying substantive law. First, this paper considers the role of the Hague Conference on Private International Law (HCCH) and the varying significance of its conventions on judicial assistance, litigation, and child protection in the pursuit of private international law unification in Asia. Second, this study elaborates and supports the use of non-binding instruments (or soft law) – model laws, principles, legislative guides, etc. – as a fallback method of harmonizing private international law. Third, this paper examines the increasing extraterritoriality of regulatory norms of the US, the EU, China, and other countries in the global market. This will clarify the problems of conflicting, overlapping regulations and allow scrutiny of potential pathways to restrict the exercise of the states’ prescriptive jurisdiction. Some future perspectives will conclude this study.

Dai Yokomizo

This paper aims to analyze the International Law Association’s Guidelines on Intellectual Property and Private International Law (hereafter referred to as the “Kyoto Guidelines”) and to examine their significance and future challenges. As the number of cross-border intellectual property (IP) disputes has increased since the 1990’s, issues of conflict of laws (private international law) in IP disputes have become the subject of worldwide discussion. One of the most notable outcomes of this discussion has been the creation of soft-law typed principles or proposals dealing with conflict of laws issues. After some principles or proposals were drafted, the International Law Association Committee “Intellectual Property and Private International Law” was established in November 2010, and, after long discussions, the Kyoto Guidelines drafted by the Committee were approved by the ILA 79th Biennial Conference held (online) in Kyoto on December 13, 2020. What is the significance of these Guidelines and what challenges remain for the future? This paper will examine these questions.

Petr Dobiáš

1 The conflict of law rules applicable to the insurance of mass risks have crucial importance for the insurance contracts with international element from the legal and economical point of view, because the legal regime has overwhelming effect on the successful contract implementation. The differentiation between large and mass risks was developed historically in the European private international law by the legal regulation contained in the life-and non-life insurance directives, which contained conflict of laws rules designed for insurance contracts, which had to be implemented to the legal orders in the EU Member States. The relevance of the distinction between large and mass risks for the determination of applicable law is given also after entry into force of the Rome I Regulation, which had to codify in its art. 7 conflicts of laws rules of the insurance contracts for the purpose of elimination of the shortcomings, which were typical for the previous legal regulation, which was implemented from the EU life-and non-life directives also to the Czech legal order.

Géraldine Mahieu, Paul Brans, Daniel Schulz

Next Generation EU, specifically its Recovery and Resilience Facility (RRF), has been a groundbreaking new experiment for the EU. From the speed of the reaction at the EU level with an agreement between leaders a few weeks after the COVID-19 crisis erupted, the size of the instrument (being the largest EU fund ever created), to the RRF's design features (including the performance nature of the instrument, its leverage on reforms, and its method of financing), it is a fundamentally novel EU instrument. Aimed at both recovery and resilience, it first led to a firm common response to a simultaneous economic downturn across the EU, ensuring rapid macroeconomic stabilization and preservation of public investment levels, in contrast with previous crises. It has also planted the seeds of a significant increase in the resilience of the EU economy by fostering the implementation of major structural reforms in line with the common priorities of the EU. Lessons about absorption capacity, incentives, flexibility, and governance will all advance future program design in the EU and beyond.

Personal status issues occupy great importance and wide scope in the conflict of laws, as evident in matters such as marriage, divorce, inheritance, and wills, among others. The conflict of laws in personal status issues raises multiple problematic aspects in determining the applicable law. Our Iraqi legislator has relied on nationality as a connecting factor in personal status issues, as it provides the greatest protection for the Iraqi individual and the public order in Iraq, according to our Iraqi legislator's viewpoint supported by jurisprudence. However, the application of nationality law in the conflict of laws in the field of personal status has created several problematic issues that affect individuals' acquired rights and pose difficulties in safeguarding these rights.

J. Bomhoff

This article offers an overview and an interpretation of Trevor Hartley’s scholarship in the fields of private international law and EU law. It argues that Hartley’s work, beginning in the mid-1960s and spanning almost six decades, shows striking affinities with two broader outlooks and genres of legal discourse that have roots in this same period. These can be found, firstly, in the approach of senior English judges committed to “internationalising” the conflict of laws in the post-war era; and, secondly, in the so-called “legal process” current of scholarship that was especially influential in American law schools from the late 1950s onwards. Reading Hartley’s writings against these backgrounds can help illuminate, and perhaps to some small extent complicate, two labels he himself has given to his own work: of a “modern approach”, in which “law is made for man, not man for the law”.

Vladimir N. Koval

Current economic conditions are characterized by significant specifics that directly affect the substantive and procedural aspects of the consideration and resolution by courts of private law disputes with a foreign element. At the same time, the key issue facing the court is the problem of establishing the applicable law in the context of using the conflict of laws method of regulating international private law. The article is devoted to determining the content and optimal ways to solve some current problems of applying the norms of private international law, taking into account modern processes occurring in the economic sphere of international relations at the regional and universal levels of interaction between subjects of legal relations. To identify the essence and possible ways to solve the problems of applying the norms of private international law in current economic conditions, a formal legal analysis of the current Russian legislation containing the norms of private international law, state judicial and arbitration practice in specific cases, its generalizations and relevant recommendations made by decisions were used Plenum of the Supreme Court of the Russian Federation and rulings of the Supreme Arbitration Court of the Russian Federation, as well as the practice of international commercial arbitration. The features of the place and role of state (civil and arbitration) proceedings and international commercial arbitration in ensuring private law interests in cases with a foreign element are analyzed, and the features of the consideration and resolution of disputes within the realm of private international law are outlined. The author’s conclusions and recommendations are proposed, aimed at formulating a reasoned view of modern trends in the application of private law norms in specific economic conditions.

D. Tarikanov

The conflict of qualifications and the public policy clause in private international law can be used to achieve the political and legal objectives of the court's rule of law. The analysis of judicial practice and special literature on it indicates an increasing interest in the issue of interaction of these two tools for the stated purposes. The article aims to illustrate this interaction using specific examples from judicial practice and identify its patterns, in particular, to establish subordination between the conflict of qualifications and the public policy clause. To achieve the result, general scientific and special research methods were used, including the method of comparative law. As a result of the study the author has made a conclusion. The method of functional qualification dictated by legal dogmatics does not give the conflict of laws norm independence from the political and legal will of the legislator. The conflict of laws norm remains an instrument in the hands of the state to achieve political and legal goals, and in this sense its dogmatic interpretation allows for political and legal correction. This correction is expressed in a restrictive interpretation of the concepts of conflict of laws, when it becomes necessary. The protection of the court's rule of law values, traditionally associated with the reservation on public order, is transferred to an earlier stage of qualification of the concepts of the conflict of laws rule. Due to the restrictive qualification, the correction of the result dictated by dogma is carried out both in the choice of applicable law and in determining the scope of the conflict of laws reference. As a result, the queue does not reach the stage of applying the public policy clause, since its goals have already been achieved due to political and legal qualifications.

Jan Hodermarsky

The question of initial ownership is a preliminary question in all copyright claims. It is thus of fundamental importance for the success of any copyright claim. The confrontation of the principle of territoriality vis-à-vis the universality principle finds its reflection in the choice of a connecting factor for the question of initial ownership of copyright. Proponents of universality tend to apply the lex originis rule, which takes into consideration legal relations existent in the State of the origin of the work. On the other hand, there are proponents of the strict territoriality principle who apply lex loci protectionis conflict-of-laws rule to the whole copyright statute, including the ownership question, which leads to de facto violation of legitimate expectations of copyright holders. One of the often-mentioned arguments of lex loci protectionis proponents against the use of lex originis is that lex originis is not able to comply with the national treatment principle enshrined in most international copyright instruments. The purpose and aim of the article is to analyze whether the lex originis conflict-of-laws principle indeed contradicts the national treatment principle. For that purpose, the Russian judicial practice is analyzed, for Russia is one of few countries using the lex originis principle, which has also had an opportunity to develop an advanced judicial practice in this regard. Most EU countries prefer the lex loci protectionis connecting factor to determine the initial copyright owner, which, however, presents a  substantial hindrance to the single market. In order to not touch the dogmatically settled lex loci protectionis principle and at the same time enable free movement of services within the single market, the EU has introduced a home country rule in its secondary law, which is a material copyright law derogation made in favor of the functioning of EU single market. Compliance of this phenomenon with the national treatment principle is also analyzed in this article. The author concludes that the conflict-of-laws principle lex originis, as well as the home country rule, are indeed incompatible with the national treatment principle. It is further concluded that it is through the lex originis principle that the essence of national treatment is realized. In order to interpret international copyright treaties secundum ratione legis, the question of copyright ownership should be explicitly excluded from the scope of national treatment, thus from the scope of lex loci protectionis.

Monique Cardinal

The Arab uprisings of 2010-2011 generated a growing movement for change among the judicial corps throughout the Arab world. Judges and prosecutors created independent associations in Morocco, Mauritania, Yemen, Libya, Lebanon, and Tunisia to represent their interests and promote a better administration of justice. Since the March Revolution of 2011 in Syria, members of the judiciary also attempted to create their own association, but failed to do so. This article briefly outlines the demographics of the judicial corps after ten years of conflict in Syria. A noticeable change is the increase in the number of women in the judiciary and their promotion to positions of power. How have women judges and prosecutors used the greater authority granted to them? To the advantage of the regime, as a means for self-promotion or to better defend the rights of all? The second part of the article details the progressive disempowerment of the judiciary, the expansion of the criminal justice system and the creation of the Counterterrorism Court used by the regime to quash the popular uprising. In the final section, stories of off-bench resistance highlight efforts made by judges and prosecutors to defend their judicial autonomy and the basic human rights and freedoms of all Syrians.  

پوریا عسکری

محیط‌زیست، قربانی خاموش جنگ است که با تخریب و نابودی آن، سیلی از فجایع گریبان انسان و جوامع بشری را می‌گیرد. پیشرفت علم، این مهم را بیش از پیش برملا و آشکار ساخته و از این ­رو، بحث حفاظت از محیط‌زیست در رابطه با مخاصمات مسلحانه، دگربار در رأس دغدغه‏‌های ‏طرفداران محیط‌زیست و نیز اندیشمندان حقوق بین‌الملل‏ بشردوستانه قرار گرفته است. کمیسیون حقوق بین‌الملل‏ با رویکرد تدوین و توسعة تدریجی حقوق بین‌الملل‏، در 2019 قرائت نخست اصول پیش‌نویس‏ در خصوص حفاظت از محیط‌زیست در رابطه با مخاصمات مسلحانه را منتشر و نیز کمیتة بین‌المللی صلیب سرخ، رهنمودهای سال 1994 خود را در 2020 به­روزرسانی کرد تا نگاهی دوباره و تازه به مقررات حقوق بین‌الملل‏ و به‌طور خاص، حقوق بشردوستانه در این عرصه شده باشد. این مقاله با رویکردی تطبیقی بر این دو مطالعة مهم تمرکز دارد و در پی پاسخ به این پرسش است که تا چه حد پژوهش‏‌های ‏جدید نهادهای مورد اشاره توانسته‌اند‏ در تحقق اهداف خود در ایجاد نظام حقوقی حمایتی مؤثرتر برای حفاظت از محیط‌زیست در زمان مخاصمات مسلحانه موفق عمل کنند. یافته‏‌های ‏مقاله نشان می‌‏دهد که نوآوری‏‌های ‏مندرج در اسناد اشاره­شده می‌‏توانند از حیث هنجاری موجبات حفاظت بیشتر از طبیعت در مخاصمات مسلحانه را فراهم آورند.

Adrian Hemler

As the name suggests, the methodology of private international law relates to substantive private law only. A parallel methodological system regarding public law does not exist. The paper argues that this methodological rift lacks any doctrinal justification. It concludes that there are no obstacles to all-sided conflict of laws rules in the public law domain. Since the paper finds that foreign public law is already applicable in private party cases (albeit heavily obscured), it focuses on public law relationships where a foreign state appears as a plaintiff. In this respect, it is shown why the application of foreign public law embodies an attractive compromise between legal assistance and recognition.

Lorna McGregor

Kristina Daugirdas offers a different vantage point from most scholarship on the accountability of international organizations (IOs) by examining whether a focus on reputation can address accountability deficits. In this regard, reputational concerns could pressure international organizations to act by, for example, waiving immunity. In this essay, I explore the relationship between reputation and accountability through the prism of new technologies. Koettl, Murray, and Dubberley highlight four technological developments—“satellite imagery, camera-enabled portable phones, digital social networks and publicly accessible data”—that underpin “human rights investigations in the digital age.” This essay focuses on two of these technologies in particular: the use of new technologies to capture voice and image recordings of potential violations and the role of social media in amplifying allegations. I suggest that they can open routes to accountability in three ways. First, they expose and document claims of wrongdoing. Second, they provide corroborating evidence and thereby encourage victims to come forward. Third, they amplify claims and build public pressure and campaigns for accountability through social media. All three routes, individually or collectively, may lead to direct accountability as well as a structural analysis of how to prevent violations in the future. I then identify the factors that may elevate or reduce the levels by which an IO deems its reputation to be at risk and therefore responds, rather than deciding to “ride out” damage stemming from allegations of wrongdoing and a failure to act on them.

Паламарчук Сергей Александрович

В статье анализируется судебная практика Конституционного Суда Российской Федерации по рассмотрению обращений граждан о нарушении их конституционных прав отдельными нормативно-правовыми актами информационного законодательства. Рассмотрены конкретные случаи проверки на соответствие Конституции РФ отдельных положений различных федеральных законов. Сформулировано положение о механизме «виртуализации» конституционных прав граждан в третьем тысячелетии

C. Whytock

International law, as it appears in the pages of the American Journal of International Law, is largely public international law. Conflict of laws is usually considered to be either outside international law or part of private international law. This symposium in AJIL Unbound, with its focus on the Restatement of the Law (Third) Conflict of Laws, is therefore noteworthy. It also is welcome, because there is much to gain from thinking about conflict of laws and international law together.