Security for Costs in International Civil Procedure and Human Rights: Analysis of Turkish Law in Light of the European Convention on Human Rights
Dr. Gülüm Özcelik
Bilkent University, Ankara
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.
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.
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.
Jurisdiction Basis in Cross-border Tourist-Consumer Protection Matters in Borderless Global Tourism Market in the E-commerce Era: A comparative Analysis of China, the EU and the USA
University of Groningen
Protecting foreign tourists is a brand-new issue in private international law in China, which is extremely significant under the One Belt One Road Initiative (OBOR or B&R initiative or BRI). OBOR initiative will inevitably promote the development of Silk Road tourism, and accordingly, an increasing amount of foreign-related tourism disputes will arise. Meanwhile, Silk Road tourism is faced with the fast-changing technology and increasingly-popularized internet usage, E-tourism is imposing new challenges on the traditional legal rules and regulations. Additionally, cross-border tourist-consumers nowadays are travelling in a borderless global tourism market in terms of the diversity and sophiscation of tour activity participants, ranging from international travel agents, airlines, hotels to cruise lines.
Recognition and Enforcement of International Mediation Settlement Agreements
under the relevant Hague Commercial Conventions
International commercial mediation has become an attractive dispute resolution mechanism for business people. Moreover, an increasing number of states have adopted, or will adopt, the rules to promote mediation and conciliation in the course of court proceedings. However, the possibility of recognition and enforcement of mediation settlement agreements approved by a court or concluded in the course of court proceedings has not been researched well. To analyse this possibility, these two instruments are relevant: the Hague Convention on Choice of Court Agreements, and the draft Hague Convention on Recognition and Enforcement of Foreign Judgments.