Dr. Tugce Nimet Yasar / Biset Sena Gunes
Ankara Yildirim Beyazit University
Whilst the idea that parties to a dispute can designate the forum for their existing or future disputes dates back to the Roman law, jurisdiction agreements were refused in many jurisdictions for a long time on the grounds that jurisdiction of courts could only be established by the law based on the sovereignty of the states. Therefore, the change of jurisdiction of courts by the parties could have presented challenges to the public policy of the states. With the growth of international trade, however, the need to avoid jurisdiction problems in litigation has been increased. Thus, today, based on the party autonomy, i.e. ‘the most widely accepted private international rule of our time’, parties to a commercial transaction are allowed to choose the forum to resolve the disputes arising out of their transaction. This is also the case in the European Union and Turkey.
Dr. Omar Vanin
University of Padova
Several legal systems grant individuals the possibility to voluntarily end their life when clinical or psychological conditions do not allow to live a “tolerable” life.
This applies, inter alia, to Belgium and the Netherlands (since 2002), Luxembourg (since 2009), Switzerland (formally since 1918, but practiced by special organisations since 1980s), Canada (since 2015, though special legislation is still to be implemented), Colombia (allowed since 1997 and regulated since 2015), and some U.S. States, such as Oregon and California.
When considering whether to recognise and enforce a foreign judgment, should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there?
An analysis of the approach taken by courts in the Republic of South Africa.
Anthony Kennedy / Andrew Moran
BPP Law School / Serle Court, London
The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable in that jurisdiction.
For a foreign judgment to be recognised and enforced in the Republic of South Africa (‘RSA’), it must be shown, inter alia, that the foreign court which pronounced the judgment had jurisdiction to do so (i.e. that it had “international jurisdiction”). In addition to the established bases of international jurisdiction (residence, submission and presence), it has been held that where, at the time of commencement of the proceedings, the judgment debtor was domiciled within the state in which the foreign court exercised jurisdiction, that foreign court has international jurisdiction according to the common law of the RSA. This position, different to that presently adopted by the English common law but likely to be followed in other Southern African Roman-Dutch law jurisdictions, has been criticised.
Dr. Brooke Adele Marshall
University of New South Wales
This paper is concerned with normative reasons for respecting jurisdictional party autonomy. Justifications for the enforcement of exclusive jurisdiction agreements have not been comprehensively explored in the literature, which is surprising given their wide acceptance. Jurisdiction agreements overall have received significantly less theoretical attention than choice-of-law clauses.
Prof. Gerry Maher
University of Edinburgh
This paper will focus on the approach taken by the common law of the UK legal systems to the recognition and enforcement of external judgments. Two factors justify this particular focus. The first is the uncertainty in the post—Brexit era of the UK making any agreement with the EU which would apply a modified or bespoke version of the Brussels I bis Regulation on the enforcement of judgments. The second is the difficulty of predicting the success of the 2018 Draft Hague Conference Convention on the Recognition and Enforcement of Foreign Judgments, both in terms of consensus on a final draft of the Convention and the likely geographical scope of its ratification and accession.
The consequence is that in the UK common law procedures for recognition and enforcement will be increasingly resorted to for some time to come.
Dr. Carlo de Stefano
Roma Tre University
This paper analyses the issue of the proper law of arbitration and jurisdiction agreements, namely the law that is applicable to their substantive validity. In relation to arbitration agreements, Article V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the “New York Convention”) sets forth a two-pronged rule providing for the application of the law elected by the parties (loi d’autonomie) or, in the absence thereof, the law of the country of the seat of the arbitral proceedings or lex (loci) arbitri. While the law of the seat of arbitration is usually applied in civil law jurisdictions to determine the substantive validity of arbitration clauses, the common law of England has traditionally enforced its preference for the application of the law governing the main or matrix contract (lex contractus), especially where the latter was chosen by the parties.
A potential case of law evasion resulting from application
of the harmonized rules of private international law in matters of succession
Dr. Dorota Miler
University of Augsburg
Article 22 of the Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession allows a person to choose the law of the State whose nationality he possesses to govern the matters of his succession. It is an exception to the general rule expressed in article 21 of this Regulation that states that “the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.”
Unlike Polish law, German Constitution guarantees a testator’s descendant an entitlement to a compulsory portion (defined by the German Constitutional Court as “a minimum economic portion in the testator’s estate that is fundamentally indefeasible and does not depend on the entitled person’s need” BVerfGE 112, 332). Therefore, the testator’s competency to deprive his child or grandchild of the portion is interpreted very narrowly under German law. As a testator’s descendant is not guaranteed his entitlement to a compulsory portion under the Polish Constitution, the courts in Poland interpret it in favor of the testator’s freedom of testation that is guaranteed by the Polish Constitution. Therefore, to be able to more freely deprive a descendant of a compulsory portion, a person can simply choose Polish law under art. 22 of the Regulation to govern his succession as whole. The problem is significant as, according to estimates, there are currently over 2 million Poles or Germans with Polish origin living in Germany.
Prof. Stephen G.A. Pitel
Western University, Ontario
In Haaretz.com v Goldhar, 2018 SCC 28 the Supreme Court of Canada reversed two lower courts and held that the plaintiff’s libel proceedings in Ontario should be stayed because Israel was the clearly more appropriate forum. The case concerned defamation over the internet. The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him. Most readers of the story were in Israel but there were over 200 readers in Ontario. The decision offers several interesting observations about the discretionary staying of proceedings.
Dr. Ekin Omeroglu
Kadir Has University Istanbul
Party autonomy principle represents one of the fundamental pillars of private law. In private international law, which deals with legal relationships beyond national borders, the principle of party autonomy is given effect by choice of law rules. Choice of law has been widely recognized in respect of contractual obligations for a long time. However, party autonomy in intellectual property infringement disputes has been an unvalued issue and choice of law by parties was simply considered as non-existent.
Practice does not make perfect: Rethinking the doctrine of ‘the proper law of the contract’ – a case for the Indian courts
Dr. Saloni Khanderia
O.P. Jindal Global University, Haryana
Every contract with a transnational element calls for the determination of the law that would govern the transaction in the event of a dispute on the matter between the parties. In most civil law jurisdictions, and the United Kingdom, which is a common law system, the rules to identify the governing law has been codified – contributing to much certainty and predictability. At the same time, jurisdictions like India have continued to embrace the traditional precepts of the English common law even after the United Kingdom’s ratification to the Rome I Regulation on the Law Applicable to Contractual Obligations, 2008 (Rome I).