Choice Of Law Issues Research Articles

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law

This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Perspectives on choice of law challenges in multistate precision medicine research.

Federal law establishes minimum standards for protecting human research participants, but many states have enacted laws that may apply to research. Precision medicine research in particular implicates state laws that govern an array of topics, including human subjects research, genetic testing, and both general and genetic privacy and discrimination. Thus, the determination of which state’s laws apply, and under what circumstances, can substantially alter participant rights and protections. To shed light on this topic, we conducted interviews with experts in law, human research protections, and precision medicine research. Our goal was to better understand their experiences with choice of law issues, the effects of state law variation on research practices and stakeholder groups, and approaches to addressing such variation. Interviewees were aware of state-based variation in laws that could be applied to research. However, the extent to which they perceived such variability as problematic differed, as did their perceptions of stakeholder roles and responsibilities for addressing state law variation, and their estimations of requisite knowledge among IRBs and researchers. These divergent perspectives create an ethical and legal quandary, and further empirical and normative work is needed to fully characterize the implications of substantive differences in participant rights and protections.

Choice of law for property issues regarding Bitcoin under English law

The dominant recent legal discourse concerning Bitcoin and later virtual currencies has been focused on regulatory issues such as anti-money laundering and financial and securities regulation. By contrast, scant attention has been given to the intersection between the uses of Bitcoin and commercial law even as its popularity has grown as both an asset class and as a means of payment for goods and services. In determining the commercial law consequences of transactions involving Bitcoin, the likely cross-border nature of Bitcoin-related transactions will give rise to choice of law issues which may have a determinative effect on a given dispute. Commercial disputes involving virtual currencies have already made their way into common law courts. This paper examines one of the most significant choice of law problems that arises – the law applicable to determine disputes concerning property in Bitcoins (and determining the situs of Bitcoins) through the lens of English conflict of laws.

The Grounds for Setting Aside Arbitral Awards under the Egyptian Arbitration Code: Unresolved Choice of Law Issues and Unwanted Extraterritorialism

Abstract This article analyses the choice of law issues associated with setting aside an arbitral award under the Egyptian Arbitration Code (the Code), the challenges posed by applying the Code to arbitration conducted outside Egypt, and the lack of a clear criterion to define the Code’s scope of application. Choice of law issues – such as the law governing the parties’ capacity, the law governing the agreement to arbitrate and the applicable curial – are not addressed by defined choice of law rules. Under Egyptian law, there are several conflicting choices of rules. Finally, the article focuses on the Egyptian courts’ tendency to apply Egyptian law extraterritorially, either to protect Egyptian public policy or to apply Egyptian mandatory rules to determine the procedural validity of the arbitral award and the arbitration proceedings in general.

Difficulties in Establishing Liability in Online Defamation; Tanzania Experience

This paper is devoted to uncover difficulties in establishing liability in online defamation in Tanzania. The focus is on the effectiveness of the current laws and regulations relating to online defamation; and the lack of awareness on the part of the general public on legal and practical challenges in establishing liability over defamatory comments occurring on the internet. The investigator discovered that, the existing legal framework in Tanzania cover issues of establishing liability in online defamation suffers from a number of inadequacies. Moreover the legal and practical challenges includes, the weakness of some law and regulations covering online defamation, limitation periods, jurisdiction and choice of law issues, investigation and admissibility of electronic evidence and its authenticity, identifying anonymous defendant and the rights to privacy. The author recommends that the government has to consider amending its law by taking on board the forgotten stakeholders opinions that would address by dealing with specific issues of liability in online defamation to internet users, Internet Service providers(ISP’s) and intermediary for their defamatory comments.

The Choice of Law Issues in Marine Insurance Disputes Resolution in Indonesia

Marine insurance business in Indonesia such as marine hull and machinery insurance and cargo insurance are subject to applicable laws and practices in the United Kingdom. Although Indonesia already has marine insurance law which is regulated in Wetboek van Koophandel, in fact, this business subject to English Law and Practice. The choice of law is listed in the insurance policy. Submission of the law and practice in the UK raises the issue for the parties in the insurance contract, between Insurer and Insured. Although the principle of the contract is a law for those who make it, in practice, there is a problem. The problem is especially when there is a dispute between Insurer and Insured. When disputes occur, each party has a different opinion regarding which country's laws may be applied to resolve disputes between Insurance Companies and Policyholders (the proper law of the contract, the applicable law). When referring to the provisions contained in the marine insurance policy which is a contract of the parties, it should be settled under the legal system and the practice of law which is in force in the United Kingdom, because the choice of law is written in the contract. However, the problem arises again, whether the choice of law in the insurance contract can be applied, if the insurance company as a legal entity is established under Indonesian law and domiciled in Indonesia, as well as the policyholders who are Indonesian. On the basis of such matters, this paper intended to elaborate the principles of international civil law in Indonesia regarding the choice of law in the contract and is also associated with the personal status of the insurance company, the personal status of the policyholder who are Indonesian, as well as the consequences of the choice of law listed in marine hull and machinery insurance or cargo insurance and national laws which can be applied to marine insurance disputes occurring in Indonesia. Keywords: Marine Insurance, Choice of Law

Jurisdiction and Choice of Law Issues in Transnational Employment Rights Disputes

The Irish airline Ryanair is estimated to employ, either directly or through companies such as Crewlink or Brookfield Aviation, some 12,000 pilots, cabin crew and other workers operating from 87 bases throughout Europe. Cabin crew supplied by Crewlink are invariably employed under three year fixed-term contracts with a 12 month probationary period. Clause 6 of such contracts typically provides: “As the Client’s aircraft are registered in the Republic of Ireland and as you will perform your duties on these aircraft your employment is based in the Republic of Ireland.” Clause 37 then typically provides: “The employment relationship between the Company and you shall at all times be governed by the laws in effect and as amended from time to time in the Republic of Ireland. The Irish courts have jurisdiction in all matters relating to the execution and termination of this contract.” That clause, it should be noted, goes on to provide: “In the event that this clause becomes inoperable due to legislative changes, legal directive or any other change that the Company determines as material, then this contract will become null and void and your employment with the company will cease and you will be paid the statutory amount in lieu of notice.” The applicability of these two clauses has been considered in recent times by courts in Belgium, Germany, Italy and Norway. In Beyer v Ryanair (8 Ca 8031/09), the Bremen Labour Court ruled, on 1 April 2009, in a case brought by a cabin director based at Bremen airport, that the German courts did not have jurisdiction. This decision was followed by the Wesel Labour Court on 2 February 2010 in Dominguez v Crewlink (1 Ca 2253/09), a case brought by a flight attendant based at Weeze airport. Similar decisions were made by the Courts of Velletri and Bergamo in Iaccarino v Ryanair (985/2013) – flight attendant based at Naples airport – and de Blasio v Ryanair (920/2014) – pilot based at Bergamo airport – on 19 February 2015 and 12 March 2015 respectively. The decision of the Bergamo court was appealed to the Labour Section of the Brescia Court of Appeal which, by decision of 23 March 2016, dismissed the appeal (Order no.21/2016). It should be noted that the Italian Supreme Court, in a case relating to a flight attendant employed by a Belgian company on Belgian aircraft operating out of Fiumicino airport, had previously ruled that the Italian courts did not have jurisdiction in such cases (Cass. Joint Sections, Order no. 18509 of 20 August 2009). This article will focus on the litigation in Belgium and in Norway.

Conflict of Laws: Enforcement of Extra Provincial Judgments and in Personam Jurisdiction of Canadian Courts: Hunt v. T & N plc

The Court's decision in Hunt - and its pending decision in the Tolofson and Gagnon appeals - will undoubtedly engage the intellects, and indeed the passions, of courts and commentators to an even more dramatic extent than Morguard has done. This comment analyses the impact of Hunt on Canadian law in relation to both the in personam jurisdiction of Canadian courts and the recognition of extraprovincial judgments. As we shall see, the most pressing question left to be elaborated is whether the Court should adopt a narrow or a broad approach to the permissible scope of jurisdiction of Canadian courts, a question with significant implications for the future evolution of Canadian conflict of laws generally, and one that will almost certainly determine the Court's reasoning, if not the result, on the choice of law issues presently confronting it in Gagnon and Tolofson.

Choice of Law Rules Applicable For International Arbitration Agreements

The unsettled choice of law issues for preliminary challenges to international arbitration agreements not infrequently spark disputes over the disputes resolution mechanism. This article will examine the efficacy of the traditional choice of law rules widely used in leading jurisdictions covering popular arbitration seats to determine the law for substantive validity of arbitration agreements, i.e., the implied intent test and the closest connection test. Noting these tests fail to produce consistent and predictable results, this study will suggest a practical solution built on a faithful construction of the New York Convention. In addition, the article will briefly discuss about the New York Convention’s form requirements and the choice of law rules applicable to formal validity of arbitration agreements under the UNCITRAL Model Law.

International Commercial Arbitration, Volume I

Encyclopaedic is too modest a word to describe the second edition of Gary Born’s treatise on International Commercial Arbitration. Volume I alone covers a remarkably broad swath of territory. Under the deceptively simple title International Arbitration Agreements, Volume I tackles the history of international arbitration, the legal framework within which it operates, the choice of law issues that arise in dealing with international arbitration agreements, the interpretation, effects, and enforcement of such agreements, and such specialized subjects as the separability doctrine, arbitrability, competence-competence, and the treatment of non-signatories. This is the book with which every researcher on questions of international arbitration will begin, and with which many will finish. The geographic reach of the new edition is as impressive as the breadth of its substantive content. Under each of the topics he tackles, Born not only distils general rules from the jurisprudence, practice, and commentaries of the major international arbitration centres—principally England, France, Germany, Switzerland, Singapore, the USA, and countries that have adopted the UNCITRAL Model Law (‘Model Law’)—but also draws illustrations and contrasting examples from parts of the world that have historically seen less international arbitration and have thus developed less law on the subject.

Jurisdiction and Choice of Law Issues in Multistate Defamation on the Internet

The author maintains that the connecting factors for jurisdiction and choice of law in Internet defamation actions brought in Canada should be separately defined to address the problems of libel tourism and predictability of legal consequences.

DUE PROCESS DENIED: THE FORGOTTEN CONSTITUTIONAL LIMITS ON CHOICE OF LAW IN THE ENFORCEMENT OF EMPLOYEE COVENANTS NOT TO COMPETE

Employers often face significant difficulties in enforcing their former employees’ covenants not to compete (“noncompetes”), especially when the employee relocates to a state that has strong public policies against noncompetes. This Article examines the choice of law issues that arise in that context. Unlike previous treatments of the subject, this Article is the first to recognize that courts in states with highly restrictive policies against noncompetes have often failed to appreciate the limits that the Due Process Clause places on their authority to apply local law to invalidate noncompetes. Disregard for due process limits on choice of law means that modern noncompete litigation is usually decided by which party wins the race to the courthouse. Contrary to conventional wisdom, the employee holds a decide advantage in such contests. This Article offers a new, two-step approach that aims to revive often-forgotten constitutional limits on choice of law, levels the playing field in multi-state litigation, and removes the parties’ incentives to sue first and ask questions later.

A Question of Identity: Complexities of State Law Pluralism in the South Pacific

Throughout the world many former colonies are struggling with an inheritance of legal pluralism that gives recognition to both customary law and formal, written law. The interaction of such laws, which are very different in nature, often raises complex questions, especially because in practice the boundaries between them are often blurred. Each has had to adapt to accommodate the other, and in some cases hybrids have emerged. Questions of jurisdiction also arise, since recognition of a discrete legal system requires definition of the community to which it applies. This article explores the question of how, when state law gives recognition to custom, boundaries between different communities are determined within the State legal system for the purposes of legal jurisdiction. The geographical context of this examination is the South Pacific, and in particular Solomon Islands.In many countries of the South Pacific, including Solomon Islands, the Constitution establishes a hierarchy of laws. In this customary law is placed below the Constitution and statute, but sometimes above common law and equity. However, in practice choice of law issues arise and are debated, as it is not accepted that customary law necessarily applies to every branch of substantive law or to everyone present in the country. Whilst most South Pacific countries give special treatment to customary land, in other areas the choice of law rules are unclear and cases are determined on an ad hoc basis. Frequently reference is made to the notion of a ‘personal law’, determined according to whether a party is an ‘islander’. The interpretation of the term ‘islander’, as used in various places and with various meanings in the statute law of Solomon Islands, is shown to raise complex problems. This is the case, whether or not choice of law rules are provided by statute or have to be developed by judicial action. It is argued that it is imperative to have clear definitions, or at least a clear process for identification, if a plural system is to flourish. It appears that in cases of uncertainty the rules underpinning the State system will be adopted by default. If South Pacific jurisprudence is to develop then more appropriate solutions must be found, but this will be best done through exploration of the boundaries of legal identity together with the communities themselves.

The Law Governing the Modality of Arbitral Awards

In most cases, awards are either paid in a way which satisfies the award creditor, or not paid at all. When awards are paid to the satisfaction of all involved parties, no issue arises. When the award debtor does not want to pay, the award creditor may seek enforcement of the award. There are, however, instances where performance may raise issues irrespective of enforcement. First, the award debtor may wish to perform the award in a way which does not satisfy the award creditor. Second, the debtor may argue that an event has occurred that entitles him not to pay the award. In these cases, it is necessary to determine which rules govern, but there are no enforcement proceedings involved, or at least not necessarily. This paper explores the choice of law issues raised by the performance of arbitral awards. It identifies the different approaches to the problem depending on the various conceptions of international arbitration and how the issues under scrutiny are traditionally characterized for choice of law purposes. It then surveys the different solutions adopted by courts.

The Law Governing the Performance of Arbitral Awards

In most cases, awards are either paid in a way which satisfies the award creditor, or not paid at all. When awards are paid to the satisfaction of all involved parties, no issue arises. When the award debtor does not want to pay, the award creditor may seek enforcement of the award. There are, however, instances where performance may raise issues irrespective of enforcement. First, the award debtor may wish to perform the award in a way which does not satisfy the award creditor. Second, the debtor may argue that an event has occurred that entitles him not to pay the award. In these cases, it is necessary to determine which rules govern, but there are no enforcement proceedings involved, or at least not necessarily. This paper explores the choice of law issues raised by the performance of arbitral awards. It identifies the different approaches to the problem depending on the various conceptions of international arbitration and how the issues under scrutiny are traditionally characterized for choice of law purposes. It then surveys the different solutions adopted by courts.

Liability Insurance in International Arbitration: The Bermuda Form by Richard Jacobs QC, Lorelie S. Masters, and Paul Stanley, and Arbitration Law of Japan by Masaaki Kondo, Takeshi Goto, Kotatsu Uchibori, Hiroshi Maeda, and Tomomi Kataoka

Liability Insurance in International Arbitration: The Bermuda Form, Richard Jacobs QC, Lorelie S. Masters and Paul Stanley. Published by Hart Publishing, Oxford (359 pp.). Price £75. ISBN 4-7857-1195-7 Arbitration Law of Japan, by Masaaki Kondo, Takeshi Goto, Kotatsu Uchibori, Hiroshi Maeda and Tomomi Kataoka. Published by Shojihomu Co., Ltd., Tokyo (2004, vii + 311 pp. + references). Hardcover. Price ¥6,720. ISBN 4-7857-1195-7 The authors have tackled the complex subject of how the ‘Bermuda Form’ of excess liability insurance coverage operates. As the authors recognise, since its origins nearly 20 years ago, the Form has taken a number of different versions, some of which were quite different in language and intent from the recent XL 004 Form on which the authors focus. In whatever form, the Bermuda Form remains complex, the claims made on it are of high value, the policy-holders are generally sophisticated (but have incurred significant liabilities), and the facts giving rise to disputes are often difficult and sometimes quite controversial. Insured and insurer have agreed that the mechanism for resolving issues is arbitration, usually in London, away from publicity at the time and subsequently, and away from the pressures of public litigation. The decision to arbitrate removes from public scrutiny any examination of awards and prevents the build up of case law; but it also enables arbitrators (usually highly respected senior lawyers) to reach decisions in their own way. It allows parties to run arguments they choose with only the arbitrators and the opponent to hear. This approach is a reflection of the views of the originators of the Form, who knew that the Form had to be broad and commercial, but that not every point was expressly addressed to the satisfaction of all. The Form’s commercial success in evolving into a different world for insureds and insurers alike is a tribute to those involved over the years. Much of this book would be accepted as uncontroversial by the insurance community and their legal advisers. There is much useful material, including a useful chapter on the choice of law issues under the Bermuda Form. However, the book on occasions strays into advocacy for the policy-holder and reflects the arguments of …

Liability Insurance in International Arbitration: Choice of Law Issues in 'Bermuda Form' Arbitrations

In the mid-1980s the excess casualty insurance market in the USA collapsed to a very substantial extent. A number of insurance companies rose from the ashes, fuelled in part by capital from large US manufacturing companies. Two of these companies, ACE and XL, were based in Bermuda and began to write insurance on a freshly-drafted and novel policy form which rapidly became known as the ‘Bermuda Form’. The Bermuda Form has been through a number of revisions1 and is now one of the principal policy forms used in high-level excess liability insurance policies purchased by large US corporations for the purposes of insuring against the risk of catastrophic liabilities, for example the manufacture of a product which gives rise to mass tort litigation or a refinery explosion which causes substantial property damage and personal injury. Insurance policies written on the Bermuda Form have a distinctly international flavour. The policyholder and the insurers are often based in different countries, the policy includes an express choice of New York law (with certain modifications), and invariably provides for disputes to be settled by arbitration, usually in England, sometimes in Bermuda. The flavour of the contractual provisions can be gleaned from the ‘Construction and Interpretation’ and ‘Arbitration’ clauses in one current version of the Bermuda Form.2 The former provides:

Le juge national et l'interprétation des contrats internationaux

The writer considers the outlook of a judge trained in a specifie legal systetn and confronted with the task of interpreting a document submitted to him and introduced as an international contract. Certain preliminary questions arise, concerning the method applied by the judge to know whether the document is really a contract (and when does a contract qualify as international ?), the choice of law issues, the interpretation of related international treaties. One should not underestimate some devices that the judges have developed to cope with these problems. When some of the above mentioned questions have been addressed, one has still to consider how the contract will be interpreted. At first sight many superficial similarities seem to appear in the principles that the courts avowedly apply. But soon one can also detect noticeable differences : e.g. between the way French and Italian courts handle the civil codes rules on the interpretation of contracts. In the Common Law area one deals with the paroi evidence rule that, in generai ternis, prevents judges from taking notice of any extrinsic evidence. Finally, the writer considers how the parties may react when they realize such diverging judicial attitudes. They may try to side step the risk inherent in the interpretation process (by means of a meticulous definition of any possible event), by means of « merger clauses » and of adaptation clauses in long-term contracts.

Enforcement of Security Interests in Spare Aircraft Engines: The US Approach to Choice of Law Issues

Enforcement of Security Interests in Spare Aircraft Engines: The US Approach to Choice of Law Issues

The Rights of Putative Spouses: Choice of Law Issues and Comparative Insights

ONE of the areas of family law where jurisdictions within the Western legal tradition differ the most is in the rights afforded to persons who, in good faith, participate in void marriages. The continuum of legal responses to such problems ranges from a total denial of any effect to such marriage ceremonies and a refusal to afford any rights to the good faith participant, to the recognition of an entire complex of rights, tantamount to a status, as vesting in the putative spouse. Most family law systems, including those in most of the United States, adopt a response at either end of this continuum. Hence significant choice of law problems must arise. The United States is experiencing a gradual increase in the number of States affording significant rights to putative spouses. With notable exceptions, until quite recently most US States afforded no such rights. This paper will attempt to anticipate the conflicts issues which may arise because of this reform movement in family law, ' and because of the mobile nature of the American population. Following a description of the genesis of the putative spouse concept in modern French civil law and a critique of that country's choice of law response, this article examines the relevant substantive law of the United States today. The limited US choice of law authority and experience is surveyed as well. By way of conclusion, some thoughts are offered concerning appropriate conflicts