Academic literature on the topic 'Private international law'

This thesis seeks to determine how remedies inter-relate with the European rules on international private law. The thesis is broadly separated into two Parts, the first Part discussing the relationship between remedies and the general part of European international private law, and the second Part discussing the relationship between remedies and the specific parts of European international private law. From this analysis, three threads can be drawn. First, primary right, secondary right and the court order vindicating them are so closely related that, ideally, the same law ought to apply to all. They form a unit which should remain unbroken. Second, the distinction between substantive and ancillary rights is of crucial importance for remedies in the context of both jurisdiction and choice of law. Ancillary rights are those which arise by virtue of the trial process itself, whereas substantive rights are, or are perceived to be, created prior to the trial. The orthodox jurisdictional and choice of law rules only apply to substantive rights. Ancillary rights have their own, separate, rules. With one exception, the only court with jurisdiction over those ancillary rights is the court with jurisdiction over the substantive right to which they are ancillary. Furthermore, the lex fori must be applied to determine the nature of the ancillary right. Third, there exists a rule of exclusion which is of crucial importance for remedies in the context of both the enforcement of foreign judgments and choice of law. This rule of exclusion applies where the application of the foreign court order, whether applied by virtue of enforcing a foreign judgment, or applied by virtue of applying a foreign governing law under the choice of law process, would be too inconvenient for the forum court's machinery. Under such circumstances, the forum court can disapply the foreign law and substitute the closest order it can from its own legal system.

The thesis deals with problems of conflict of laws and its latest developments, especially in Europe, in relation to international air transport. (1) The contractual situations connected with air transport are analysed in light of the applicable international air law conventions and of a comparative survey of the conflict of laws rules of some states and international conventions on conflict of laws concerning contracts. Where the international air law conventions do not supply the solution or where they are not applicable resort has to be made to the conflict of laws. (2) Conflict of laws also arises in the legal interaction (contracts, sale of goods, transfer of ownership--res in transitu, torts, marriages, wills, etc.) between persons onboard an aircraft in flight. (3) The aircraft as an expensive and highly mobile chattel poses problems from the rights in rem point of view in the conflict of laws. (4) Aircraft accidents and the tortious liability of persons and entities involved as well as obligations arising from assistance and rescue operations pose conflict of laws problems.

It is an axiom of the conflict of laws that one state will not enforce the revenue, penal, or ‘other public’ laws of another. This thesis shall criticise this position, arguing that these exclusionary principles should be replaced with a general principle of enforceability, subject to the control of public policy. It shall begin by sketching the general landscape of the exclusion of foreign law in Anglo-Scots international private law. Thereafter, a detailed account shall be given – for each of the revenue, penal, and ‘other public’ law rules – of the historical development of those exclusions, and their present scope of operation. This exposition provides a foundation for a critical examination of those rules.

The arrest of ships is a truly Private International Law (PIL) institution. Its main rationale is to provide a useful device for international commerce and to compensate for the difficulty of enforcing judgments abroad. The arrest of ships is the typical provisional measure used in maritime claims; but it is as typical for maritime claims as it is atypical as a provisional measure. Arrest of ships is also a typical jurisdictional basis in the maritime sphere; but outside maritime claims it is nowadays completely atypical as a jurisdictional basis, i.e. arrest of non -maritime property to found jurisdiction is regarded as unacceptably exorbitant. Moreover, arrest of ships is a means of security, but its security- related effects are differently understood in comparative law. What is it about the arrest of ships that makes it so distinctive, particularly from a PIL perspective? This thesis analyses the theme in English and Scots law in the light of the international Conventions in the field. It examines the three main functions of arrest of ships, i.e. its protective function, its security function and its jurisdictional function, within the three classical domains of PIL, i.e. applicable law, jurisdiction, and the recognition and enforcement of foreign judgments. It looks at the role of the lex fori; its impact on characterization issues; its subtleties when applied qua lex causae; and its so often too far -reaching scope when applied qua lex fori. In practice its influence is unhelpful and poses a drawback to the uniformity sought by the international community. Its downside is apparent in English law where the frame in which arrest of ships currently develops is the action in rem, and where the impossibility to separate the two has complicated matters in various ways. In Scots law, due to the fact that arrestment of ships pertains to the broader law of diligence, the distinction between the different functions of the arrest of ships is clearer. Furthermore, recent law reform has brought the arrestment of ships in Scotland into line with the latest international trends in the sphere of provisional and protective measures. Central to this thesis is the jurisdictional function of arrest of ships. Forum arresti, the paradigmatic forum selection criterion in English and Scots law, has survived as a specific jurisdictional basis for maritime claims in the process of Europeanization of PIL. This thesis establishes that forum arresti in the case of arrest of ships is a cooperative forum. It advances the dynamic objective of PIL, i.e. the juridical continuity of legal relations across national borders. In this context, the conceptual distinction between jurisdiction on the merits and jurisdiction for the sole purpose of interim relief becomes paramount. Ultimately, the whole analysis shows that the combination of civilian legacy, common law creativity and international attempts for uniformity has profoundly affected the nature of arrest of ships; not only in England and in Scotland, but, through their influence on international Conventions, in the entire shipping world.

The Commercial Court in London is frequently dealing with applications for a freezing injunction. The vast majority of academic literature and court decisions directly or indirectly adopt the view that freezing injunctions have stood the test of time and are so frequently granted in commercial litigation that there is no need for any serious concern about their scope, let alone the need to identify and question the legitimacy of the justifications for their existence. Contrary to the traditional view, this thesis has identified equipage equality as the primary function of freezing injunctions. This recognition that freezing injunctions seek to establish a level-playing field in litigation has led the author to conclude that the current scope of the relief is excessively claimant-friendly and involves illegitimate interference with the sovereignty of foreign states. Taking into account the tactical reasons for seeking a freezing injunction, the author challenges the current interpretation of the substantive preconditions for granting the relief. Their current interpretation does not strike a fair balance between the interests of the parties. The author argues that these concerns are exacerbated by the current international scope of freezing injunctions due to the insufficient regard for the principles of public international law. The encroachment on the jurisdiction of foreign states undermines equipage equality by enabling claimants to make multiple applications for interim relief in respect of the same assets. In the light of the above, the author has sought to make a range of proposals to restrict the scope of freezing injunctions with the aim of bringing the relief in line with equipage equality.

La thèse examine le cadre juridique de la restructuration de la dette souveraine vis-à-vis des créanciers privés et le rôle joué par le droit international public. La problématique est la suivante : Quel est le rôle actuel et potentiel du droit international public dans la restructuration de dettes souveraines ? Le cadre juridique actuel est fragmenté, avec une multitude d'acteurs et de pratiques. Le contexte politique influence le processus plus que des coutumes ou des principes généraux. La jurisprudence révèle les défis pour les cours nationales et les tribunaux internationaux. L'approche contractuelle incite les créanciers à un contentieux créatif, qui perturbe les négociations. L'arbitrage relatif aux investissements s'est révélé inadéquat. Les incohérences entre les différents fora entraînent des résultats insatisfaisants pour les créanciers et les débiteurs, au détriment de la sécurité juridique. Pour les perspectives d'avenir, les concepts de dette odieuse et d'état de nécessité ne peuvent offrir que des améliorations limitées. Leur contenu apparaît trop peu défini pour protéger une restructuration. La réforme du cadre juridique de la restructuration de la dette souveraine a mis en concurrence les approches fondées sur le droit international public et sur le droit privé. Cela a été le plus évident avec le processus à l'Assemblée générale des Nations Unies et la modification concomitante des clauses contractuelles. Un cadre futur pourrait inclure une réduction de l'accès au contentieux, un rôle plus important reconnu aux droits de l'homme de la population débitrice et une action de l'Union européenne à mi-chemin entre les deux approches<br>This thesis considers the legal framework of sovereign debt restructuring in relation to private creditors and the relevant rules of public international law. The research question is : What is the actual and potential role of public international law in sovereign debt restructurings ? The current legal framework is fragmented, and a multitude of actors and practices coexist. Political expediency governs the process and the outcomes, with little room for customary rules or general principles of law. The case law reveals the challenges for both domestic courts and international tribunals in dealing with sovereign debt restructurings. The contractual approach provides incentives for creditors to attempt creative litigation, which disrupts negotiations. Investment arbitration has proved an inadequate response. The inconsistencies among the different fora bring about unsatisfactory results for creditors and debtors alike, let alone the implications for legal certainty. For the future prospects, the concepts of odious debt and state of necessity can provide limited improvements, at best. Their content and contours appear too ill-defined to be relied upon by States wishing to shield a restructuring. The reform of the legal framework for sovereign debt restructuring has set a competition between approaches based on public international law and on private law. This has been most evident with the process at the United Nations General Assembly and the concomitant modification of contractual clauses. A future framework could potentially feature less avenues for litigation, a focus on the human rights of the debtor population, and a middle ground shaped by the European Union