- K Boele-Woelki, T Einhorn, D Girsberger and S Symeonides (eds), Convergence and Divergence in Private International Law: Liber Amicorum Kurt Siehr (Eleven International Publishing, 2010) (hereinafter Convergence and Divergence).
- An excellent overview of both the scholastic and the judicial revolution is given by SC Symeo-nides, The American Choice-of-Law Revolution: Past, Present and Future (Martinus Nijhoff, 2006), chs II and III; P Hay, PJ Borchers and SC Symeonides, conflict of Laws (West, 5th edn, 2010), 27–121.
- An influential advocate of finding the “seat” (Sitz) of a legal relationship was the German scholar Friedrich Carl von Savigny, writing in the 19th century; see FC von Savigny, System des heutigen Römischen Rechts, vol 8 (Veit, 1849), esp 28, 108; translated into English by W Guthrie, Savigny, A Treatise on the conflict of Laws, and the Limits of their Operation in Respect of Space and Time (T & T Clark, 2nd edn, 1880). The jurisdiction-selection method was used in the American Law Institute's Restatement of the Law of conflict of Laws (1934).
- Pursuant to § 6(2) of the American Law Institute's Restatement (Second) of conflict of Laws (1971), “the factors relevant to the choice of the applicable rule of law include
- (a) the needs of the inters tate and international sys tems
- the relevant po licie s of the forum
- the rele vant policies of other interested states and the relative interests of those states in the determination of the particular issue
- the protection of justified expectations
- the basic policies underlying the particular field of law
- certainty, predictability and uniformity of result, and
- ease in the determination and application of the law to be applied.”
- R Michaels, “After the Revolution – Decline and Return of US conflict of Laws” (2009) 11 Yearbook of Private International Law 11, 13; Symeonides, supra n 2, ch X.
- T Einhorn, “American vs European Private International Law – The Case for a Model Conflict of Laws Act (MCLA)” in Convergence and Divergence, supra n 1, 34–36. Similarly, the creation of new rules, either descriptive or normative, is suggested by Symeonides, ibid, 433–37.
- JAR Nafziger, “Democratic Values in the Choice-of-Law Process” in Convergence and Divergence, supra n 1, 75–76.
- Ibid, 76, quoting RC Reuben, “Democracy and Dispute Resolution: The Problem of Arbitration” (2004) 67 Law and Contemporary Problems 279, 293.
- W Duncan, “Future Developments in International Family Law with Special Emphasis on Cross-border Child Protection: A View from The Hague” in Convergence and Divergence, supra n 1, 224.
- Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (86 State Parties in September 2011); Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (84 State Parties in September 2011).
- Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children; Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance.
- G Möller, “On the Hague Convention on the Civil Aspects of International Child Abduction and its Application by the Supreme Court of Finland” in Convergence and Divergence, supra n 1, 317. The facts of the case and the decisions in all instances are reported in more detail by M Savolainen, “The Hague Convention on Child Abduction of 1980 and Its Implementation in Finland” (1997) 66 Nordic Journal of International Law 101, 150–52.
- [2002] 1 FLR 388, [2002] 2 FCR 329, [2002] Fam Law 101.
- A different view is taken by EM Clive, “The Concept of Habitual Residence” [1997] Juridical Review 137, 146: “the child will normally have no habitual residence until living in a country on a footing of some stability”.
- Neither of the two cases mentioned actually involved an application of the 1980 Hague Convention because Bangladesh has not acceded to the Convention, and Italy did so only after the relevant events in the Finnish case had occurred.
- The two further options of directly applying the internal rules of the forum or the internal rules of the lex causae are noted by AE Gotlieb, “The Incidental Question Revisited – Theory and Practice in the conflict of Laws” (1977) 26 International and Comparative Law Quarterly 734, 769. Those two options are rejected by TS Schmidt, “The Incidental Question in Private International Law” (1992) 233 Recueil des cours 305, 316. Even more than four options may compete if the forum court uses renvoi: Gotlieb, ibid.
- JL Neels, “External Public Policy, the Incidental Question Properly So-called and the Recognition of Foreign Divorce Orders” in Convergence and Divergence, supra n 1, 335.
- An application of the conflict rules of the country with which the incidental question has a closer connection is suggested by K Siehr, “General Problems of Private International Law in Modern Codifications” (2005) 7 Yearbook of Private International Law 17, 52.
- Haque v Haque (1962) 108 CLR 230.
- Seedat's Executors v The Master 1917 AD 302.
- The High Court applied India's internal law to the essential validity of a polygamous marriage celebrated in Western Australia. India's private international law probably subjects the essential validity of a marriage to the lex loci celebrationis: P Diwan and P Diwan, Private International Law: English and Indian (Deep and Deep Publications, 1998), 265–66, 274. A polygamous marriage is not valid under Western Australia's internal law.
- Neels, supra n 17, 337.
- (1963) 42 DLR (2d) 622.
- Australia: Family Law Act 1975 (Cth), s 104(9); UK: Family Law Act 1986, s 50; Civil Partnership Act 2004, s 238.
- Neels, supra n 17, 351–54.
- Phelan v Phelan 2007 (1) SA 483 (C).
- Irish law was changed through the Family Law (Divorce) Act 1996.
- Convention 80/934/EEC [1980] OJ L266.
- Regulation 593/2008 EC [2008] OJ L77/6. The Regulation applies to contracts concluded on or after 17 December 2009: Art 28 as corrected by Corrigendum [2009] OJ L309/87.
- 30 As noted in Recital (46) of the Rome I Regulation.
- 31 Where the contract is “more closely connected” (Art 4(5) of the Convention) or “manifestly more closely connected” (Art 4(3) of the Regulation) with a country other than that of the characteristic performer's habitual residence, the law of that other country applies.
- 32 Art 4(2) in both instruments. Furthermore, the concept of characteristic performance stands behind the rules in Art 4(1)(a), (b), (e), (f), 7(2) of the Regulation.
- The concept gained prominence through the work of Swiss scholar Adolf Schnitzer: AF Schnitzer, Handbuch des Internationalen Privatrechts (Verlag für Recht und Gesellschaft AG, 3rd edn, 1950), vol II, 564–73; AF Schnitzer, “Les contrats internationaux en droit international privé Suisse” (1968) 123 Recueil des cours 541, 560–81; AF Schnitzer, “Die Zuordnung der Ver-träge im Internationalen Privatrecht” (1969) 33 Rabels Zeitschrift 17, 20–26. The concept is now laid down in Art 117(2) of the Bundesgesetz über das Internationale Privatrecht (Swiss statute on private international law), which came into force on 1 January 1989.
- HU Jessurun d'Oliveira, “‘Characteristic Obligation’ In the Draft EEC Obligation Convention” (1977) 25 American Journal of Comparative Law 303, 305.
- Before 1980, the concept of characteristic performance was not firmly established in the law of any EEC member state: FK Juenger, “Parteiautonomie und objective Anknüpfung im EG-Übereinkommen zum Internationalen Vertragsrecht: Eine Kritik aus amerikanischer Sicht” (1982) 46 Rabels Zeitschrift 57, 75–76. See also F Vischer, Internationales Vertragsrecht (Stämpfli, 1962), 89–144.
- Australian Law Reform Commission, Choice of Law, Report No 58, 1992, [8.48]. Australian courts apply the common law test of closest and most real connection: Bonython v The Commonwealth (1950) 81 CLR 486, 498; Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418, 434, 437, 438, 440–41.
- Art 8(2) of Japan's 2006 Act on the General Rules of the Application of Laws, reproduced in English translation in (2006) 8 Yearbook of Private International Law 427, 429.
- Art 41 of the People's Republic of China's Law on the Application of Law for Foreign-related Civil Legal Relationships, which came into force on 1 April 2011. See also Art 5 of the Rules of the Supreme People's Court on Related Issues concerning the Application of Law in Hearing Foreign-related Contractual Dispute Cases Related to Civil and Commercial Matters. Both instruments are discussed by G Tu and M Xu, “Contractual conflicts in the People's Republic of China: The Applicable Law in the Absence of Choice” (2011) 7 Journal of Private International Law 179.
- Art 3113 of the Civil Code of Québec.
- Art 24(4) of Turkey's 2007 Code on Private International Law and International Civil Procedure, reproduced in English translation in (2007) 9 Yearbook of Private International Law 583, 590–91.
- FK Juenger, “The European Convention on the Law Applicable to Contractual Obligations: Some Critical Observations” (1981) 22 Virginia Journal of International Law 123, 133–34.
- Jessurun d'Oliveira, supra n 34, 327. See also Juenger, supra n 35, 79.
- WE O'Brian Jr, “Choice of Law under the Rome Convention: The Dancer or the Dance” [2004] Lloyd's Maritime and Commercial Law Quarterly 375, 383.
- P Mankowski, “The Principle of Characteristic Performance Revisited Yet Again” in Convergence and Divergence, supra n 1, 436–62.
- Regulation 864/2007 EC [2007] OJ L99/40. The Regulation has been applicable from 11 January 2009 (Art 32) and applies to events giving rise to damage which occurred after its entry into force on 20 August 2007 (Art 31).
- Art 2(2) exempts from the scope of the Regulation obligations arising out of family relationships, matrimonial property regimes, negotiable instruments, corporations law, relationships of trust, nuclear damage, and violations of privacy and rights relating to personality, including defamation.
- Art 1(1) of the Regulation, which expressly exempts from the scope of the Regulation “revenue, customs or administrative matters” and “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.
- 48 Art 1(4) of the Regulation.
- 49 The Regulation contains special rules for product liability (Art 5), unfair competition and acts restricting free competition (Art 6), environmental damage (Art 7), infringement of intellectual property rights (Art 8) and industrial action (Art 9).
- 50 Art 23 defines habitual residence for corporations and for natural persons acting in the course of a business, but not otherwise.
- This was a “solution adopted by virtually all the Member States”: EC Commission, Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to NonContractual Obligations (“Rome II”), Brussels, 22.07.2003, COM(2003) 427 final, 12. The law of several European countries prior to Rome II is reviewed by K Siehr, “Revolution and Evolution in conflicts Law” (2000) 60 Louisiana Law Review 1353, 1354–57.
- Art 4(3) can thus have the effect of displacing Art 4(2) in favour of Art 4(1): A Dickinson, The Rome II Regulation: The Law Applicable to Non-contractual Obligations (Oxford University Press, 2008), [4.89]; JJ Fawcett and JM Carruthers, Cheshire, North & Fawcett: Private International Law (Oxford University Press, 14th edn, 2008), 804. A different view is taken by A Rushworth and A Scott, “Rome II: Choice of Law for Non-contractual Obligations” [2008] Lloyd's Maritime and Commercial Law Quarterly 274, 281.
- [2005] HCA 54, (2005) 223 CLR 331.
- John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 203 CLR 503; Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10, (2002) 210 CLR 491. The application of the lex loci delicti is subject only to ordre public, and this only in international cases. In intra-Australian cases, there is no ordre public reservation due to the “full faith and credit” clause in section 118 of the Australian Constitution.
- John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 203 CLR 503, [100], [132]–[133], [161], [192]–[193].
- 56 There was no need to decide whether Victorian law or Western Australian law applied.
- Art 146(1) of the People's Republic of China's General Principles of the Civil Law from 1986 provided that the lex loci delicti applied but that the law of the common nationality or domicile could be applied instead. Today, Art 44 of the People's Republic of China's Law on the Application of Law for Foreign-Related Civil Legal Relationships prescribes an application of the law of the parties' common habitual residence: G Tu, “China's New conflicts Code: General Issues and Selected Topics” (2011) 59 American Journal of Comparative Law 563, 583–84.
- For example, an Australian court might feel obliged to use renvoi in a contract case, which would be problematic. The applicability of renvoi to contract was indeed accepted by the parties in O'Driscoll v J Ray McDermott [2006] WASCA 25, as noted there at [12].
- A flexible exception to the lex loci delicti rule is preferred to the use of renvoi by M Keyes, “The Doctrine of Renvoi in International Torts: Mercantile Mutual Insurance v Neilson” (2005) 13 Torts Law Journal 1, 13–14; R Mortensen, “‘Troublesome and Obscure’: The Renewal of Renvoi in Australia” (2006) 2 Journal of Private International Law 1, 24–25.
- For procedural reasons, a party may agree to the choice of a less advantageous law; see the example given by TK Graziano, “Freedom to Choose the Applicable Law in Tort – Articles 14 and 4(3) of the Rome II Regulation” in J Ahern and W Binchy (eds), The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: A New International Litigation Regime (Martinus Nijhoff Publishers, 2009), 116.
- Recital 31 of the Rome II Regulation, addressing both pre-event and post-event choice-of-law agreements. The need to respect party autonomy is emphasised by TM de Boer, “Facultative Choice of Law: The Procedural Status of Choice-of-law Rules and Foreign Law” (1996) 257 Recueil des cours 223, 300–01, 330–35; M Zhang, “Party Autonomy in Non-Contractual Obligations: Rome II and Its Impacts on Choice of Law” (2009) 39 Seton Hall Law Review 861.
- Art 14(1) further provides that a choice of law by the parties “shall not prejudice the rights of third parties”. Art 14 is excluded, and thus no choice of law by the parties either before or after the event allowed, with regard to unfair competition, acts restricting free competition, and infringement of intellectual property rights: Arts 6(4) and 8(3).
- Graziano, supra n 60, 114–15, 118; SC Symeonides, “Party Autonomy in Rome I and II from a Comparative Perspective” in Convergence and Divergence, supra n 1, 544.
- Consumers and employees are expressly mentioned in the EC Commission's second explanatory memorandum: EC Commission, Amended Proposal for a European Parliament and Council Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II”), Brussels, 21.02.2006, COM(2006) 83 final, 3, on Amendment 25.
- Symeonides, supra n 63, 546. During the legislative process, the EC Parliament proposed the requirement of an “arms-length commercial relationship between traders of equal bargaining power”: Position of the European Parliament adopted at first reading on 6 July 2005 with a view to the adoption of Regulation (EC) No…/2005 of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II“) P6_TC1-COD(2003)0168, 4–5, proposed Art 3(1).
- Symeonides, ibid, 535, 546–47.
- Paras 2 and 3 of Art 14 of the Rome II Regulation mirror paras 3 and 4 of Art 3 of the Rome I Regulation, with the difference that the former refer to the relevant elements at the time when the event giving rise to the damage occurs whereas the latter refer to the relevant elements at the time of the parties' choice of law.
- Symeonides, supra n 63, 547.
- TM de Boer, “Party Autonomy and Its Limitations in the Rome II Regulation” (2007) 9 Yearbook of Private International Law 19, 22.
- Beyond the requirements of Art 14 of the Rome II Regulation, the law governing the material validity of a choice-of-law clause should be determined in accordance with Art 10 of the Rome I Regulation: Graziano, supra n 60, 123; Rushworth and Scott, supra n 52, 292.
- Directive 93/13/EEC [1993] OJ L95/29. The first sentence of Art 3(2) of the Directive reads: “A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.”
- EC Commission, Amended Proposal for a European Parliament and Council Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II”), Brussels, 21.02.2006, COM(2006) 83 final, 3, on Amendment 25. The same interpretation of Art 14(1)(b) is supported by Dickinson, supra n 52, [13.38]–[13.41]. The view that this interpretation of Art 14(1)(b) gives “cause for commercial concern” is taken by Rushworth and Scott, supra n 52, 293.
- Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Consolidated Version) [1998] OJ C27/1.
- Regulation 44/2001 EC [2001] OJ L12/1.
- Denmark is not subject to the Regulation as such but has entered into an agreement with the EC in which Denmark undertook to apply the Regulation with minor modifications: Agreement between the European Community and the Kingdom of Denmark, [2005] OJ L299/61.
- Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters (original Lugano Convention mirroring the Brussels Convention); Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (new Lugano Convention mirroring the Brussels I Regulation).
- Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, adopted on 30 October 1999.
- Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement done at Christchurch on 24 July 2008. As a result of that Agreement, each of the two countries now has a Trans-Tasman Proceedings Act 2010.
- The Trans-Tasman regime is discussed by R Mortensen, “The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice of Court Convention” (2009) 5 Journal of Private International Law 213, 222–29.
- An overview of the jurisdictional systems in many civil law and common law jurisdictions is given by JJ Fawcett, “General Report” in JJ Fawcett (ed), Declining Jurisdiction in Private International Law (Clarendon Press, 1995), 5–27.
- GA Bermann, “Parallel Litigation: Is Convergence Possible?” in Convergence and Divergence, supra n 1, 582.
- Art 22 of the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, adopted on 30 October 1999. Art 22 excludes the power to stay proceedings where jurisdiction is founded on an exclusive choice-of-law agreement or on the provisions relating to consumer contracts, employment contracts and exclusive jurisdiction.
- The section of that Act that deals with forum non conveniens is discussed by SGA Pitel, “The Canadian Codification of Forum Non Conveniens” (2011) 7 Journal of Private International Law 251.
- [2002] EWCA Civ 877, [2003] 1 CLC 246. In the view of some commentators, the Brussels regime tacitly allows or even mandates a stay of proceedings where the alternative forum is a non-member state and the court seised would have to decline jurisdiction under the Brussels regime if the alternative forum were a member state (theory of “reflexive” effects): GAL Droz, “Entrée en vigueur de la Convention de Bruxelles révisée sur la compétence judiciaire et l'exécution des jugements” (1987) 76 Revue critique de droit international privé 251, 260–61; H Gaudemet-Tallon, “Le ‘forum non conveniens’, une menace pour la convention de Bruxelles?” (1991) 80 Revue critique de droit international privé 491, 511–18; J Harris, “Stay of Proceedings and the Brussels Convention” (2005) 54 International and Comparative Law Quarterly 933, 942–47; BJ Rodger, “Forum Non Conveniens Post-Owusu” (2006) 2 Journal of Private International Law 71, 93–94.
- Case C-281/02, [2005] ECR I-1383, [37]–[46].
- The text of the Convention is set out in (2006) 2 Journal of Private International Law 270–86.
- 87 Arts 5(1), 6(a), 9(a) of the Convention.
- T Hartley and M Dogauchi, Explanatory Report on the Convention of 30 June 2005 on Choice of Court Agreements, [3], [94], [125]; T Kruger, “The 20th Session of the Hague Conference: A New Choice of Court Convention and the Issue of EC Membership” (2006) 55 International and Comparative Law Quarterly 447, 451; A Schulz, “The Hague Convention of 30 June 2005 on Choice of Court Agreements” (2006) 2 Journal of Private International Law 243, 255–56.
- P Beaumont and B Yüksel, “The Validity of Choice of Court Agreements under the Brussels I Regulation and the Hague Choice of Court Agreements Convention” in Convergence and Divergence, supra n 1, 575; S Vrellis, “The Validity of a Choice of Court Agreement Under the Hague Convention of 2005” in Convergence and Divergence, supra n 1, 773, 775 fn 74.
- The parties must have capacity under both the law of the chosen court and the law of the court seised or the requested court: Hartley and Dogauchi, supra n 88, [150], [184].
- Ibid.
- 92 Arts 6(b), 9(b).
- Vrellis, supra n 89, 776.
- 94 Arts 6(c), 9(e).
- The subjecting of capacity to the laws of two jurisdictions may also lead to conflicting decisions on the issue of capacity by the chosen court and another court, each court applying its own law and both courts either assuming or declining jurisdiction: C Thiele, “The Hague Convention on Choice-of-Court Agreements: Was It Worth the Effort?” in E Gottschalk et al (eds), conflict of Laws in a Globalized World (Cambridge University Press, 2007), 76–77, 81.
- Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the Application of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Brussels, 21 April 2009, COM(2009) 174 final, [3.3]; A Briggs, Agreements on Jurisdiction and Choice of Law (Oxford University Press, 2008), [7.12]–[7.25]; SP Camilleri, “Article 23: Formal Validity, Material Validity or Both?” (2011) 7 Journal of Private International Law 297; T Kruger, Civil Jurisdiction Rules of the EU and Their Impact on Third States (Oxford University Press, 2008), [4.27]; L Merrett, “Article 23 of the Brussels I Regulation: A Comprehensive Code for Jurisdiction Agreements?” (2009) 58 International and Comparative Law Quarterly 545.
- Beaumont and Yüksel, supra n 89, 574. The same suggestion is made by Kruger, ibid, [4.30]. The application of an amended Rome I Regulation is suggested by Camilleri, ibid, 319, and the application of a Community notion of good faith is suggested by Merrett, ibid, 559–60.
- The effects that the UK's adoption of the Rome II Regulation may have on other Commonwealth countries are discussed by E Schoeman, “Third (Anglo-Common Law) Countries and Rome II: Dilemma or Deliverance” (2011) 7 Journal of Private International Law 361.
Journal of Private International Law
Volume 7, 2011 - Issue 3