National University of Singapore
The common law Act of State doctrine remains notoriously indeterminate. Even the nature and scope of one of its more well-defined sub-rules, the Foreign Act of State doctrine (the “Doctrine”), remains highly contested: in Belhaj v Straw, the UK Supreme Court remained divided on every aspect of the Doctrine, agreeing only that it would preclude challenges to the validity of certain foreign laws or executive acts.
This article forwards a clear justification for the Doctrine, from which its proper purpose, scope of application and exceptions can be determined. It builds on a justification hinted at by the majority in Belhaj: the Doctrine is a “general principle of private international law”, concerned with upholding private justice in disputes involving the application of foreign law.
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.
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).