A Guide to Global Private International Law

Series Editor’s Preface
Preface
Contents
List of Contributors
Part I: Introduction
	1. Introduction
Part II: Theory
	2. Pragmatism and Private International Law
		I. Introduction
		II. Pragmatic Movements
		III. Pragmatism and Law
		IV. A Pragmatic Theory of Private International Law
		V. Conclusion
	3. Characterisation
		I. Introduction
		II. The Characterisation Problem
		III. Peculiarities of Unified Private International Law
		IV. Characterisation Rules in International Instruments
		V. Autonomous Characterisation
		VI. Institutional Aspects: Judges, Legislators and Professors
	4. Connecting Factors
		I. Introduction
		II. Outline and Focus of the Chapter
		III. Connecting Factors in HCCH Family Conventions
		IV. The Influence of EU Cross-Border Family Law
		V. Geneva Refugee Convention Interpretation
		VI. National Courts
		VII. Discussion
		VIII. Final Conclusions
	5. Renvoi and Preliminary Questions
		I. Introduction
		II. Renvoi
		III. Preliminary Question
	6. Public Policy and Mandatory Provisions
		I. Introduction
		II. The Concept of an Escape Mechanism
		III. When Public Policy Applies
		IV. When Mandatory Rules Apply
		V. The Doctrine of Overriding Statutes: Another Mechanism with Similar Effects
		VI. How Strong an Interest?
		VII. The American Theory of Interest Analysis
		VIII. Interest Analysis Compared with Conventional PIL Theories
		IX. Public Policy and Mandatory Provisions in International Instruments
		X. Conclusion
Part III: Institutional and Framework Issues
	7. Hague Conference on Private International Law
		I. Introduction
		II. The HCCH as the Cradle of Global Private International Law
		III. The Hague Conference as a Contemporary Intergovernmental Organisation
		IV. Organisation and Working Methods
		V. Contribution to Global Private International Law
		VI. Looking Ahead: The Hague Conference as an Evolving Forum for Global Private International Law
	8. National Organs and Central Authorities under HCCH Conventions
		I. Introduction
		II. National Organs
		III. Central Authorities
		IV. The Continuing Legacy of National Organs and Central Authorities
	9. Substance and Procedure
		I. Introduction
		II. Background
		III. General Principles
		IV. The Principles Applied
		V. Conclusion
	10. Application of Foreign Law
		I. Introduction
		II. The Procedural Treatment of Foreign Law
		III. Access to Foreign Law (and Making One's Law Available)
		IV. Future Outlook
	11. States as Litigants in International Matters before Domestic Courts
		I. Introduction
		II. Case Study Method
		III. Cases Relating to Commercial Activity or Employment Contracts
		IV. Foreign Military Operations and Personal Damages Suffered by Civilians
		V. Cross-Border Enforcement of Regulatory Laws
		VI. General Conclusion
	12. Service of Process
		I. Introduction
		II. The Hague Service Convention
		III. European Union Arrangements
		IV. Inter-American Arrangements
		V. The CIS Convention
		VI. Other Conventions and Arrangements
		VII. Conclusion
	13. Taking of Evidence
		I. Introduction
		II. Foreign Evidence and the Convention
		III. Uncertainties and Interpretative Inconsistencies
		IV. The Convention's Character: The Only, the First or the Last Resort?
		V. Conclusion
Part IV: Civil and Commercial Law (Excluding Family Law)
	14. Law Applicable to Contracts
		I. Introduction
		II. Party Autonomy
		III. Law Applicable in the Absence of Contractual Choice
		IV. Conclusions
	15. Contract Jurisdiction
		I. Introduction
		II. The 2019 Judgments Convention: Global Convergence on a Rule for Indirect Jurisdiction
		III. Contract Rules for Direct Jurisdiction
	16. Companies
		I. Introduction
		II. Lex societatis
		III. (Attempts at) International Unification of Private International Law for Companies
		IV. (Attempts at) Regional Unification of Private International Law for Companies
		V. Outlook: From Unification to Coordination, and from Rules to Principles
	17. Competition Law Enforcement: Private International Law and Access to Effective Legal Remedies in Cross-Border Cases
		I. Introduction
		II. Main Limitations of the New Hague Judgments Convention (and the HCCH)41
		III. Challenges Concerning International Cooperation in Cross-Border Cases
		IV. PIL Mechanisms and International Cooperation in Cross-Border Competition Law Cases
		V. Access to Legal Remedies in Cross-Border Cases: Adjudicatory Jurisdiction and Regulatory Jurisdiction107
		VI. Concluding Remarks
	18. Tort: Applicable Law
		I. Existing Unification
		II. A Hague Convention on the Law Applicable to Torts?
	19. Tort: Jurisdiction
		I. Tort and Tort Jurisdiction
		II. The Context: European, American and Commonwealth Tort Jurisdictions
		III. The Grounds of Special Tort Jurisdiction
		IV. The Possibility of Unifying Tort Jurisdiction
	20. Unjust(ified) Enrichment
		I. Introduction
		II. Substantive Laws on Unjust(ified) Enrichment
		III. Jurisdiction
		IV. Applicable Law
		V. Conclusion
	21. Property
		I. The Current State of Play Regarding Private International Law and Property
		II. Working Towards the Progressive Unification of Private International Law in Relation to Property: Opportunities and Challenges
	22. Succession
		I. Introduction
		II. The Current Framework for Private International Law of Succession
		III. The Failure of the 1989 Convention and a New Convention on Clawback
		IV. Conclusion
	23. Trusts
		I. Introduction
		II. Meaning of 'Trust' under the Convention
		III. Types of Trust Falling within the Ambit of the Convention
		IV. Preliminary Issues Excluded from the Convention
		V. Applicable Law Rules
		VI. 'Recognition' of a Trust under the Hague Trusts Convention
		VII. Mandatory Rules and Public Policy
		VIII. Sceptical Reaction in Some States
		IX. Trusts Falling Outside the Scope of the Convention: Constructive and Resulting Trusts
		X. Conclusion
	24. Insolvency and Bankruptcy
		I. Introduction
		II. Normative Models
		III. EU Insolvency Regulation (Recast)
		IV. UNCITRAL Model Laws
		V. UNCITRAL Legislative Guide
		VI. Other Initiatives
		VII. Concluding Remarks
	25. Intellectual Property
		I. Introduction
		II. Jurisdiction
		III. Applicable Law
		IV. Conclusion
	26. Arbitration
		I. Introduction
		II. Delocalisation and Re-Localisation
		III. The Role of Private International Law in Arbitration
		IV. Which Private International Law?
		V. How Private International Law Contributes to the Effectiveness of Arbitration
		VI. Conflict Rules in Arbitration Law
		VII. Towards a Uniform Private International Law for Arbitration?
	27. Maritime Exceptionalism in Global Private International Law
		I. Introduction
		II. Challenges to Global PIL Unification: Focus on Jurisdiction
		III. Disparity in Interpretation and Application of Unifying Provisions: Focus on Applicable Law
		IV. Contemporary Exceptionalism: The Recent Exclusion of Carriage of Goods by Sea Contracts from the HCCH 2019 Convention on the Recognition and Enforcement of Foreign Judgments
		V. What Bridges for Private International Maritime Law?
		VI. Conclusion
	28. Choice of Court Agreements
		I. Introduction
		II. Defining Exclusive Choice of Court Agreements
		III. Effects of Choice of Court Agreements
		IV. Conclusion
	29. Recognition and Enforcement of Judgments in Civil or Commercial Matters
		I. Introduction
		II. Objectives of the Two Hague Conventions
		III. Duty to Recognise and Enforce a Judgment
		IV. Bases of Jurisdiction
		V. Grounds for Refusal
		VI. Scope and Declarations Reducing the Scope
		VII. Minimum Harmonisation: Article 15 of Judgments and Chapter III of Choice of Court
		VIII. Bilateralisation
		IX. Conclusion
	30. Conflicts of Jurisdiction
		I. Introduction
		II. Civil Law and Common Law Responses to Conflicts of Jurisdiction: An Introduction
		III. Civil Law and Common Law Responses to Conflicts of Jurisdiction: An Evaluation
		IV. Responding to Conflicts of Jurisdiction: A 'Global' Solution?
		V. Conclusion
	31. Collective Redress
		I. Overview
		II. Aspects of Private International Law
		III. Recognition and Enforcement of Foreign Judgments Arising from a Collective Procedure
		IV. Cross-Border Recognition and Enforcement of Court-Approved Collective Settlements
		V. Conclusion
Part V: Family Law
	32. Divorce
		I. Introduction
		II. The 1970 Hague Convention on Recognition of Divorces and Legal Separations
		III. Necessity for a Renewed Focus on the 1970 Divorce Convention and a Complementary Convention on Conflicts of Jurisdiction
		IV. Conclusion
	33. Parental Responsibility, Custody and Access
		I. Introduction
		II. The 1996 Child Protection Convention
		III. The Impact on the EU: The 2003 Brussels IIa Regulation and its 2019 Recast
		IV. Conclusion
	34. Child Abduction
		I. Introduction and Aims of the 1980 Convention
		II. Wrongful Removal or Retention of the Child
		III. Exceptions to the Return of the Child under the 1980 Child Abduction Convention: An Overview
		IV. Conclusion
	35. Adoption of Children
		I. Introduction
		II. The 1993 Adoption Convention: More than a PIL Convention
		III. Challenges to Unification
		IV. Problems with the Content and Interpretation of Unifying Laws
		V. Remaining Gaps to be Rectified
		VI. Conclusion: A Convention which Protects Children
	36. Maintenance
		I. Introduction
		II. Applications
		III. Some Recent Statistics on Applications
		IV. CAs and Legal Aid
		V. Jurisdiction
		VI. Recognition and Enforcement
		VII. Conclusion
	37. Matrimonial Property
		I. Introduction
		II. Matrimonial Property Regimes
		III. Personal Connecting Factor
		IV. Party Autonomy
		V. Effect of Migration During Marriage
		VI. The Law Applicable to Property Division on Divorce
		VII. The Way Ahead
	38. Family Agreements Involving Children
		I. Introduction
		II. How the Current Hague Conventions Work for Family Agreements
		III. Binding Instrument
	39. The Protection of Adults
		I. The Protection of Adults: An Overview
		II. Adults' Protection as a Human Rights Concern
		III. The Role of Private International Law in the Realisation of the Fundamental Rights of Adults
		IV. The Hague Adults Convention
		V. The International Protection of Adults in Prospect
		VI. Concluding Remarks
	40. International Surrogacy and International Parentage: Hopes for a Global Solution
		I. The Emerging Need for Uniform Private International Law Rules on Parentage
		II. The Interplay between Private and Public Values in Matters of Filiation
		III. The Possible Features of a General Instrument in Parentage Matters
		IV. The Challenges of Surrogacy: National Fragmentation and Intervention of Supranational Courts
		V. International Surrogacy Arrangements: The Cautious Approach of an Optional Instrument
		VI. Concluding Remarks
Part VI: Conclusion
	41. Conclusion: Mapping of the Strength of Global Private International Law
		I. Strong
		II. Developing Strongly
		III. Great Potential
		IV. Weak but could be Revived
		V. (Largely) Non-Existent but could be Created
		VI. Not the Time to Act on a New Global Instrument (but Some Practical Suggestions for Application of Foreign Law)
		VII. Final Remark
Index