Hasil untuk "Private international law. Conflict of laws"

Codruț N. Savu

This article aims to examine, from both doctrinal and practical perspectives, the place and role of Private International Law (PIL) within the European Union, as well as its correlation with International Commercial Law (ICL). Starting from the definition of PIL as a branch of domestic law, centered on conflict of laws rules and the regulation of cross-border legal relations, the paper analyzes the terminological paradoxes, the interaction with the uniform substantive rules of ICL, and the mechanisms through which PIL facilitates the integration and application of international commercial conventions and usages. The core of the article is devoted to European regulations – Brussels I bis, Rome I, and Rome II – which have triggered a process of Europeanization of PIL, raising the question of whether we can already speak of an autonomous European Private International Law.

Said Mabrouki, Naima Akli

The borderless nature of the internet poses significant challenges to jurisdiction and conflict of laws, as traditional territorial legal frameworks struggle to keep pace with the digital age. Although private international law has historically addressed cross border disputes, its rules have not evolved at the speed of technological change. In response, legal scholars advocate for a unified global framework often referred to as Lex Electronica enforced by digital judicial bodies. They argue that the internet’s erosion of national boundaries necessitates new models of governance. Nevertheless, private international law remains essential in practice, offering adaptable mechanisms such as tort liability principles for regulating online behavior. To effectively navigate the legal complexities of globalization, existing legal frameworks must be recalibrated, and national laws must evolve to reflect digital realities. At the same time, emerging actors like ICANN challenge traditional notions of sovereignty, exerting regulatory influence over cyberspace and raising critical questions about the capacity of legal systems to balance innovation with accountability.

Codruț N. Savu

Human dignity, as a core value of both international and domestic law, demands effective legal protection of personality rights in cross-border situations. This paper examines how private international law addresses conflicts of laws regarding violations of privacy, honor, image, and personal identity in a digitalized and globalized world. It explores the applicable law criteria (lex loci delicti, law of the domicile, party autonomy) and the limits of conflictual autonomy when fundamental rights are at stake. The paper suggests a balanced approach that reconciles state sovereignty with international imperatives regarding personality rights, especially in cases involving extraterritorial elements (e.g., online defamation, unauthorized image publication, commercial misuse of names).

yassin m. brunger, Sophie Rigney

The invitation to consider the “critical aftermath” of international criminal law (ICL) and “what happens next?” raises, for us, the suggestion of a new possibility emerging from the ruins—not only the ruins of atrocity, but also of law's response to atrocity. Yet ICL, we suggest, is lying in wait: it remains a powerful and violent actor, poised to activate and reinforce the prominence and monopoly of carceral justice, even out of the ruins. To counteract the dominance of carceral justice, we suggest learning from the tradition of abolition geography. By this we mean engaging in an act of “reconstruction place-making,”1 whereby we mix our labor with the world and (re)make the world by bending the “narrative arc” toward freedom.2 More specifically, we seek to embrace an abolitionist geography by offering a conception of countercultural visions of justice, drawing from a vignette of the worldwide movement of university encampments for Palestine. With this, we contribute to deepening reflections on a counterculture of international justice rooted in epistemologies of Black feminist and abolitionist praxis.3

Bryan Druzin, Anatole Boute, Michael Ramsden

While artificial intelligence (AI) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiative do not address this threat but merely instead focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What legal obligations, if any, does public international law impose on states to regulate its development. Grounded in the precautionary principle, we argue that there exists an international obligation to mitigate the threat of human extinction by AI. Often invoked in relation to environmental regulation and the regulation of potentially harmful technologies, the principle holds that in situations where there is the potential for significant harm, even in the absence of full scientific certainty, preventive measures should not be postponed if delayed action may result in irreversible consequences. We argue that the precautionary principle is a general principle of international law and, therefore, that there is a positive obligation on states under the right to life within international human rights law to proactively take regulatory action to mitigate the potential existential risk of AI. This is significant because, if an international obligation to regulate the development of AI can be established under international law, then the basic legal framework would be in place to address this evolving threat.

Aniket Kesari, Travis Breaux, Tom Norton et al.

Privacy law and regulation have turned to "consent" as the legitimate basis for collecting and processing individuals' data. As governments have rushed to enshrine consent requirements in their privacy laws, such as the California Consumer Privacy Act (CCPA), significant challenges remain in understanding how these legal mandates are operationalized in software. The opaque nature of software development processes further complicates this translation. To address this, we explore the use of Large Language Models (LLMs) in requirements engineering to bridge the gap between legal requirements and technical implementation. This study employs a three-step pipeline that involves using an LLM to classify software use cases for compliance, generating LLM modifications for non-compliant cases, and manually validating these changes against legal standards. Our preliminary findings highlight the potential of LLMs in automating compliance tasks, while also revealing limitations in their reasoning capabilities. By benchmarking LLMs against real-world use cases, this research provides insights into leveraging AI-driven solutions to enhance legal compliance of software.

L. Castellanos-Jankiewicz

The pivotal contributions of private international law to the conceptual emergence of international human rights law have been largely ignored. Using the idea of adjacent possibility as a theoretical metaphor, this article shows that conflict of laws analysis and technique enabled the articulation of human rights universalism. The nineteenth-century epistemic practice of private international law was a key arena where the claims of individuals were incrementally cast as being spatially independent from their state of nationality before rights universalism became mainstream. Conflict of laws was thus a vital combinatorial ingredient contributing to the dislocation of rights from territory that underwrites international human rights today.

Shaima Al-Hussien, Asia Al Da’jeh, Ali Al-Zubi

Determining the applicable law for copyright is a complex issue in the jurisprudence of private international law. This is because it is an intangible moral property, meaning that the nature of the subject to which the right is attributed differs from other material rights. In addition, most legislations have not established specific attribution rules for moral rights, making it difficult to determine the applicable law for copyright. Hence, the research problem is embodied in the absence of explicit and clear texts that address the issue of conflict of laws if it relates to the author’s topics moving between the scope of more than one law, which leads to an overlap in the scope of the applications of the law that related to those rights, raising the issue of which law should apply and which one is more accurate in achieving justice. The importance of this research is evident in raising the awareness among rights holders of the existence of a legal organization that protects the copyright, which may ease their minds due to their prior knowledge of the existence of a law that protects the product of their mind on the one hand and deters the aggressor on the other hand. Moreover, this study aimed to demonstrate the validity of the laws referred to by the traditional attribution rules to resolve conflicts of laws in matters related to copyright. It must be noted that the study adopted the analytical and descriptive comparative approach between Jordanian law and Iraqi law and the role of each in resolving problems arising from conflicts of laws.The study found that the Jordanian legislator specifically addressed unpublished works in Article 57 of the Copyright Protection Law, clarifying whether they fall under the law's provisions. However, we did not find an explicit provision in the Iraqi Copyright Protection Law regulating the issue of unpublished works. However, the researcher recommended that the Jordanian legislator conclude new bilateral or regional agreements in addition to joining international agreements due to the inadequacy or inappropriateness of traditional agreements related to judicial cooperation to rule on what arises from a conflict of legislative jurisdiction regarding copyright.

M. A. Oleynikov

The absence of a unified material legal regulation of the transfer of property rights is determined by the presence of fundamental contradictions in the approaches of various legal systems to this issue. The lex rei sitae connecting factor is not the optimal way to regulate the transfer of ownership of movable property in cross-border transactions. Conflict mobile is one of the cases, when determining the statute of a movable property by the law of its location is difficult and leads to an unfair result. The right of the parties to a contract in cross-border relations to freely choose the legal order regulating transfer of ownership is one of the ways to overcome the disadvantages of conflict-of-laws regulation of the transfer of ownership. However, such a manifestation of the party autonomy is not allowed in all legal systems and is not a generally accepted approach. The purpose of the study is to reveal the difficulties of the legal order in case of implementation of the party autonomy in the sphere of transfer of property rights, as well as to identify ways to overcome them. The party autonomy is practically analyzed on the example of the legal systems of Russia and CIS, Switzerland, the Netherlands, China. The choice of the legal order applicable to the transfer of ownership is not an extension of the scope of the contract statute, but represents party autonomy in relation to the real statute. Consequently, party autonomy interferes with the specific issues of property law. The analysis shows us that the party autonomy with certain restrictions is permissible for regulating transfer of ownership and serves an instrument for overcoming difficulties caused by the use of lex rei sitae connecting factor in a number of cases. However, allowing parties to an international transaction to choose the legal order applicable to the transfer of ownership raises the question of the effect of the choice against third parties. The article outlines ways to solve this problem.

Stina Bergman Blix, Kathy Mack, Terry Maroney et al.

This special issue of Oñati Socio-legal Series, titled Judging, Emotion and Emotion Work, is the result of presentations and discussions during an interdisciplinary workshop at the International Institute for the Sociology of Law (IISL) held in May 2018. This issue builds on the growing critique of the dispassionate ideal of judicial work, combining original theoretical insights with imaginative empirical analyses to extend the understanding of emotion in judging. Fifteen articles are presented in four themes: Theoretical, cultural and historical perspectives; Tensions of the dispassionate ideal; Social dynamics of emotion in judging; and Research methods, empirical insights and [changing] judicial practice. The international diversity of contributions recognises similarities and differences in the structure and organization of courts and the judiciary, and socio-cultural variations in emotional experience and expression.

Tinghui Zhu, Qin Liu, Fei Wang et al.

Large Vision-Language Models (LVLMs) have demonstrated impressive capabilities for capturing and reasoning over multimodal inputs. However, these models are prone to parametric knowledge conflicts, which arise from inconsistencies of represented knowledge between their vision and language components. In this paper, we formally define the problem of $\textbf{cross-modality parametric knowledge conflict}$ and present a systematic approach to detect, interpret, and mitigate them. We introduce a pipeline that identifies conflicts between visual and textual answers, showing a persistently high conflict rate across modalities in recent LVLMs regardless of the model size. We further investigate how these conflicts interfere with the inference process and propose a contrastive metric to discern the conflicting samples from the others. Building on these insights, we develop a novel dynamic contrastive decoding method that removes undesirable logits inferred from the less confident modality components based on answer confidence. For models that do not provide logits, we also introduce two prompt-based strategies to mitigate the conflicts. Our methods achieve promising improvements in accuracy on both the ViQuAE and InfoSeek datasets. Specifically, using LLaVA-34B, our proposed dynamic contrastive decoding improves an average accuracy of 2.24%.

Berivan Isik, Natalia Ponomareva, Hussein Hazimeh et al.

Scaling laws provide important insights that can guide the design of large language models (LLMs). Existing work has primarily focused on studying scaling laws for pretraining (upstream) loss. However, in transfer learning settings, in which LLMs are pretrained on an unsupervised dataset and then finetuned on a downstream task, we often also care about the downstream performance. In this work, we study the scaling behavior in a transfer learning setting, where LLMs are finetuned for machine translation tasks. Specifically, we investigate how the choice of the pretraining data and its size affect downstream performance (translation quality) as judged by: downstream cross-entropy and translation quality metrics such as BLEU and COMET scores. Our experiments indicate that the size of the finetuning dataset and the distribution alignment between the pretraining and downstream data significantly influence the scaling behavior. With sufficient alignment, both downstream cross-entropy and translation quality scores improve monotonically with more pretraining data. In such cases, we show that it is possible to predict the downstream translation quality metrics with good accuracy using a log-law. However, there are cases where moderate misalignment causes the downstream translation scores to fluctuate or get worse with more pretraining, whereas downstream cross-entropy monotonically improves. By analyzing these, we provide new practical insights for choosing appropriate pretraining data.

Lukáš Maliňák

The article presents the case law of the British courts in the 1930s and 1940s, that dealt with the law applicable and, where appropriate, the forum. Specifically, cases in which the application of the Private International Law and its principles pointed to German (Nazi) law as the law applicable or referred the forum to Germany (the then Third Reich). The article presents a summary of these decisions through the eyes of the British courts and how they dealt with the issue.

M. Poesen

This article bridges artificial intelligence (AI) and EU private international law (PIL), also known as ‘conflict of laws’. PIL is the body of (usually domestic or regional) rules that determine which country’s law applies to cross-border private legal relationships, such as contracts or torts. The article will start by bringing EU PIL to bear on the application of AI in cross-border settings. To that aim, it will first evaluate whether the current framework is up to the task of determining what country’s law is applicable to claims (with an emphasis on liability claims) arising out of private applications of AI systems. Then, the article will turn to discuss a recent proposal of the European Parliament for a bespoke future Regulation concerning civil liability for AI systems, including a novel rule of PIL. Finally, the enquiry will switch perspective by outlining how AI can facilitate the application of often complex rules of EU PIL in practice.

Laura Çami, Ilda Muçmataj, Xhon Skënderi

Biobanks, as repositories for biological samples and associated data, play a pivotal role in advancing biomedical research and enabling personalized medicine on a global scale. However, the cross-border operation of biobanks faces intricate legal challenges arising from diverse regulatory frameworks across jurisdictions. This article offers a comprehensive analysis of the complexities surrounding cross-border biobanking within the European Union (EU), focusing on EU legislation and the notable legal precedents set by the European Court of Justice (ECJ). Additionally, it examines the efficacy of utilizing Private International Law mechanisms to navigate the legal intricacies inherent in biobanking activities. The initial section scrutinizes existing EU legislation governing biobanks, identifying potential areas of conflict and disparity stemming from variations in laws among member states. Particular attention is given to data protection, informed consent, and the transportation of biological samples. Subsequently, the study delves into significant ECJ rulings pertaining to biobanking and data sharing, emphasizing the legal principles established by the court in the context of cross-border biobanking. The third section explores the importance of Private International Law instruments in addressing the challenges posed by EU legislation and case law. It investigates the application of choice of law, jurisdiction, and recognition and enforcement of judgments to resolve conflicts between biobanks operating in different legal jurisdictions. Moreover, the study highlights the potential of international conventions and treaties in promoting harmonization within cross-border biobanking practices. By illuminating how legal theories and frameworks can facilitate efficient cross-border biobanking collaborations, this article offers valuable insights for policymakers, legal professionals, and biobank administrators. It provides recommendations to enhance international cooperation within the intricate legal landscapes of biotechnology and intellectual property. Leveraging Private International Law enables the pursuit of harmonized biobanking practices, thus propelling significant advancements in scientific knowledge and medical discoveries.

Svetlana I. Krupko

The international treaty unification of private international law in the field of intellectual property remains problematic for more than half a century. Unresolved disagreements among states on conflict-of-laws issues, international jurisdiction, the recognition and enforcement of foreign judgements in civil and commercial intellectual property disputes, which have arisen in the development of instruments for the international unification of private international law, have served as an impetus for studying the interaction of private international law and intellectual property law at both vertical and horizontal levels. At the international level, the development of private international law in the field of intellectual property has shifted towards a method of harmonization. This article examines the experience of international intergovernmental and non-governmental organizations and the expert community in international, universal and regional harmonization of private international law within the intellectual property domain. Special attention is given to the study of non-state regulators, a comparative legal analysis of theoretical foundations and principles governing creation, structure, scope, functional purpose and content of private legal codification specially designed for application in the field of intellectual property. The research results in the following conclusions: in the regulation of private relations concerning intellectual property, which are complicated by a foreign element, there is a transition from fragmented regulation of private law questions to the complex and systemic regulation of the main categories of legal relations in the field of the intellectual property. This includes relations of intellectual rights in rem, contractual obligations and non-contractual obligations, arising from infringement and unfair competition, and extends to both the substantive aspects, addressing conflicts of laws, and procedural aspects. The development of private international law in the field of intellectual property reflects a broader trend in private international law towards specialization in conflict-of-laws and procedural regulation of cross-border relations. The formulation and application of choice-of-law rules and international jurisdiction rules are based on the close link between private relationships and the law of respective states. The identification of a such a link involves consideration of the conflict-of-laws interests of specific and potential parties to the legal relationship, societies and states. Additionally, significant conflict-of-laws values are carefully weighed in this process as well.

Vesna Ćorić, Ana Knežević Bojović, Milica V. Matijević

Currently, the field of business and human rights is at a crossroads in terms of normative development, as two major legislative instruments are being negotiated at the regional and international levels. The first instrument is a proposal for a directive aimed at ensuring business responsibility for the respect of human rights and the environment within the European Union, or in other words a proposal for a Directive on Corporate Sustainability Due Diligence. The second one is a proposal of a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, commonly referred to as the Third Revised Draft Treaty on Business and Human Rights, which is being developed by the open-ended intergovernmental working group established by the Human Rights Council in 2014. Given such parallel developments, it would seem prudent for the ongoing efforts to be interlinked so as to contribute to creating consistent legal solutions governing corporate accountability for human rights violations at international and supranational fora. This is particularly relevant in the context of rapid globalization, where transnational corporations can exploit legal and regulatory loopholes at the cost of human rights and the environment. This paper analyses the two legislative drafts with the aim of determining to what extent those two draft hard law instruments reflect the applicable international soft law standards and contribute to the creation of a complementary and mutually reinforcing regulatory framework. The analysis shows the differences in the scope and approaches utilized in the two instruments and identifies gaps and shortcomings in the proposed solutions from the standpoint of effective protection of the victims’ rights. The analysis shows that the two proposed legislative texts are for the most part mutually complementary and it points to the ways in which their norms can be read together so as to enable a coherent and consistent legal framework and ensure legal certainty. The authors also argue that the two legislators should utilize the drafting process to address the identified discrepancies in the existing normative framework in order to achieve the best results.

Noureen Akhtar

In the third decade of 21st century, cyber security has become a completely developed national security paradigm like other prominent security paradigms such as physical security, economic security, and food security. Unmatched pace of technological advancements in the fields of Information Technology, Artificial Intelligence, automation, and communication services have transformed key processes of governance, commerce, and trade from physical to cyber space. As human dependence on cyber technologies increased new questions about the prevailing security models has come to the fore during the same time. Concepts like network security, data security or infrastructure security are no longer isolated domains but have transformed as securitization of cyber domain has become an ongoing global phenomenon.  This paper focuses on how this transformation of geopolitical conflicts, from physical to cyber arena, is taking place where traditional concepts of conventional war are changing. It also examines how cyber security threat matrix is diametrically different from all prevailing military doctrinal construct? These questions certainly demand a new theoretical framework that can put this rapidly emerging new security paradigm. This study attempts to address this important question as well while taking the international and regional developments with special focus on the emerging cyber security domain in Iran.

E. I. Kaptsov

Despite the large number of publications on symmetry analysis of the geopotential forecast equation, its group foliations laws have not been considered previously. The present publication aims to address this shortcoming. First, group foliations are constructed for the equation, and based on them, invariant solutions are derived, some of which generalize previously known exact solutions. There is also a discussion of the pros and cons of the group foliation approach. In addition, the rest of the paper is dedicated to a comprehensive discussion of conservation laws. All possible second-order conservation laws of the geopotential forecast equation are obtained through direct calculations, and a number of higher-order conservation laws are derived using the known symmetries of the equation.

Deng Wang

Whether the first law of black hole mechanics is correct is an important question in black holes physics. Subjected to current limited gravitational wave events, we propose its weaker version that permits a relatively large perturbation to a black hole system and implement a simple test with the first event GW150914. Confronting the strain data with the theory, we obtain the constraint on the deviation parameter $α=0.07\pm0.11$, which indicates that this weaker version is valid at the 68\% confidence level. This result implies that the first law of black hole mechanics may be correct.