Cross-border Litigation Research Articles

Peluang Dan Tantangan Medical Tourism Perspektif Hukum Indonesia

, Currently medical tourism or commonly known as health tourism is becoming a trend in the world of tourism. The regulations regarding medical tourism in Indonesia were regulated in the Regulation of the Minister of Health of the Republic of Indonesia Number 76 of 2015 concerning Medical Tourism Services. The purpose of this paper is to examine the opportunities and challenges of medical tourism from an Indonesian legal perspective. The method for achieving this goal was normative legal research method. The results of the analysis showed that opportunities for medical tourism in the perspective of Indonesian law, namely Indonesian health regulations do not affect medical tourism behavior through health needs, external environment: government regulations on health tourism and health tourism agents, the implementation of medical tourism hospitals in Indonesia has not run optimally, PMK Number 76 of 2015 regarding Medical Tourism Services as a legal umbrella providing opportunities for medical tourism, plans to develop medical tourism in Indonesia are contained in Law No. 07 of 2017, and Pp No. 02 of 2015, simplification of medical tourism regulations (Perkonsil) No. 92 of 2021, PMK No. 67 of 2013, the medical tourism policy has been updated to empower medical tourism: KP No. 31 of 1998, Law No. 32 of 2004, PMK of the Republic of Indonesia Number 317/MENKES/PER/III/2010. The challenges of medical tourism from an Indonesian legal perspective: no legal accreditation framework and guidelines for emergency clinics, foreign investors must be aware that Indonesia has a series of regulations and restrictions relating to its health industry, the challenges of medical tourism in Indonesia also arise from reflecting on the perspective of state law neighbors, malpractice law in developing countries is weak, in Indonesia developments in the field of law are still not seen as a medium to change the order of people’s lives, medical tourism has cross-border litigation challenges. The health omnibus law as a national legal policy with the hope of achieving the goal of increasing the public health hierarchy in Indonesia was a challenge as well as the best opportunity in the future.

Rage Against the Machine:  Who Is Responsible for Regulating Generative Artificial Intelligence in Domestic and Cross-Border Litigation?

Rage Against the Machine:  Who Is Responsible for Regulating Generative Artificial Intelligence in Domestic and Cross-Border Litigation?

История развития и современное регулирование коллективных исков в Японии

The author is tracing the development of collective redress in Japan beginning from feudal times till today. He comes to conclusion that Japanese lawmaker shows restrictive and cautious approach to implementing collective procedures in civil litigation. Current regulation of representative and class actions in Japan is characterised by opt-in model of member participation. In addition, the class litigation is based on the mechanism of an organisational action. Such choice of the legal construction has different consequences: on the one hand, it gives no chance to induce a private initiative in the class litigation, but on the other it has a form which is well-tested in European jurisdictions, and that makes the class action stable. The author enphasises creative basis in building an original model of the class action in Japan. It shows itself in adoption of standards of a legal regulation in this field from European countries and the Anglo-Saxon legal world. One of the realised elements of the Japanese regulation was a bifurcation, which could also be implemented in Russia. At the end of the article questions of cross-border litigation are discussed concerning the use of the class action in Japan.

International commercial courts and EU law: easing the tension

Abstract International commercial courts (ICCts) are hybrid dispute resolution fora, whose features often differ from the ones of ‘ordinary’ courts. Thus, the legal nature of ICCts is not always clear. The authors submit that it is doubtful whether an ICCt should be qualified as a self-standing adjudicative body, or as a chamber of a larger court. This, in turn, may undermine the applicability of the European Union cross-border litigation regime, and affect enforceability. Using the Netherlands Commercial Court as a case study, this article proposes two alternative avenues for reform, aimed at enhancing legal certainty and ensuring international enforceability.

Smart Courts in Cross-Border Litigation

Smart Courts in Cross-Border Litigation

The Promotion of Access to Justice through the Constitutional Development of the Doctrine of Forum Non Conveniens

South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.

Csongor István Nagy (ed.), Cross-border Litigation in Central Europe (Book Review)

Csongor István Nagy (ed.), Cross-border Litigation in Central Europe (Book Review)

South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation: Litigation v Arbitration

Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.

History Is Not Destiny: Colonial Compensation Litigation and South Korea–Japan Relations

AbstractRecent colonial compensation lawsuits reflect the metamorphosis of historical grievances in collective public memory into tort claims in private law. This article provides a synthetic view of the nexus of colonial law and history in South Korea–Japan relations, focusing on cross-border litigation brought by former forced laborers and victims of sexual servitude known as “comfort women” during World War II. The concept of public policy (ordre public) in Korea, which has colonial origins, has long served law courts as the standard for deciding the validity of a juristic act. But of late heavy reliance on the general clauses of law in legal proceedings has risked turning history and law into handmaids of national spirit, muddling historical accountability and legal liability. Improvement of South Korea–Japan ties should start from a more accurate understanding of colonial laws and a rounded appreciation of their shared legal history.

Oral Hearing Management Under The ESCP Regulation

The European Small Claims Procedure (ESCP) is designed as a written procedure, wherein the oral hearing is granted limited space. The reason for this stems from the fact that an oral hearing in cross-border litigation take significantly longer and its worth seems to be – notably in civil matters such as those that fall within the ESCP’s scope – related to the value of the case (the smaller the value, the lesser the worth). This regime gives rise to several significant issues, concerning its consistency with the fundamental procedural principle of the “right to be heard”, the correlative margin of discretion the court may rely on in deciding whether a hearing shall be scheduled or not, and not least the role played by modern communication technologies in this respect. The author deals with such issues in their multiple features and connections, trying to thus offer proper answers to them. The author’s overall view is that the ESCP Regulation’s restrictive approach to oral hearing is reconcilable with the right to be heard and that the broad discretion conferred on the court in this respect is justified as well.

Tort conflicts rules in cross-border multi-party litigation: Which law has a closer or the closest connection?

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. The questions raised in these two cases include how to interpret the tort conflicts rules of lex loci delicti, lex domicilii communis and the closer/closest connection test when determining the applicable law. In particular, as regards the meaning of lex loci delicti, the notion of ‘damage’, the common habitual residence of the parties and the criteria to determine the closer/closest connection, different interpretations were provided in these two cases. In order to clarify certain ambiguity of tortious applicable law rules in cross-border multi-party litigation, a comparative study of Chinese and European tort conflicts rules is conducted. This article does not intend to reach a conclusion as to which law is better between the Rome II Regulation and the Chinese Conflicts Act, but rather highlights a common challenge faced by both Chinese courts and English courts in the field of international tortious litigation on personal injury and how to tackle such challenge in an efficient way under current legislation.

No turning back: information and communication technologies in international cooperation between authorities

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

The Use and Abuse of Anti-suit Injunctions in SEP Litigation: Is There a Way Forward?

Cross-border litigation over Standard Essential Patens (“SEPs”) entered into a new phase when the English courts decided in Unwired Planet v Huawei they have the power to set the terms of a global license within the context of national patent infringement proceedings. Unwired Planet appears to have unleashed a global race to the bottom and a race to the courthouse, with litigants racing to seize their preferred forum to set global rates while trying to prevent their opponent from bringing proceedings elsewhere through “anti-suit injunctions”, a type of relief traditionally granted by common law jurisdictions, but now increasingly so by other jurisdictions such as China. Yet this is now rarely the end of the matter, with litigants applying for anti-anti-suit injunctions or even anti-anti-anti-suit injunctions. The purpose of this paper is to explore the new realities in SEP litigation post-Unwired Planet, with a focus on the use of anti-suit injunctions and the corresponding turf war between national courts. After discussing the legal test for granting such relief in various legal systems, the paper discusses the worrying proliferation of anti-suit injunctions across major jurisdictions, noting how this trend wastes judicial resources and may undermine international comity. It considers that in the absence of some form of international coordination, a satisfactory solution is unlikely to emerge in the short term. As a first step, it proposes that governments consider establishing “best practices” on SEP licensing dispute resolution, including on jurisdictional issues such as the scope of licenses fashioned by national courts.

A Call For a European Union-Wide Civil Search Order: Identifying the Need and its Proposed Characteristics

Taking its cue from the introduction of the European Account Preservation Order (Regulation (EU) No. 655/2014), this article seeks to encourage a continued specific approach in the harmonisation of provisional and protective measures in the EU through the creation of an EU-wide civil search order. The current framework for obtaining such an order is extremely complex and depends heavily on procedures available in individual Member States. In order to ensure efficiency and certainty in the preservation of evidence in civil justice across the EU – and, ultimately, support the functioning of the Single Market – this article outlines a procedural framework for the preservation of evidence in cross-border litigation within the EU, using the common law Anton Piller order as a model. While EU legislation encouraging judicial cooperation in the taking of cross-border evidence currently exists (Council Regulation (EC) No. 1206/2001), the Regulation falls short of the desired characteristics of an EU-wide civil search order as it does not provide a uniform procedure, nor does it allow for orders to be granted on an ex parte basis.

Anti-Suit Injunctions in European Transnational Litigation: Past, Present and Post-Brexit Future of an Unusual Remedy

Anti-suit injunctions are the frontline in the clash of civil and common law. Of course, the imbalance of powers between the systems’ courts is critical. However, both approaches have their advantages. Whilst civil law approach establishes harmony between Member States’ courts and provides for a high degree of legal certainty and predictability, the common law approach gives greater flexibility to judges in order to do justice in the individual case, which at times is necessary to prevent abusive litigation tactics. Whilst the Court of Justice of the European Union (CJEU) rightfully held that the Brussels regime does not allow for anti-suit injunctions in non-obligation-based cases, the remedy should not have been banned in obligation-based cases. Civil law dominated Europe has unfortunately missed the opportunity to learn from the common law approach in a rather arrogant manner. Now however, it is time to look forward. It is crucial to realize that even greater conflicts may arise from 1 January 2021, but that the future also provides a unique opportunity to resolve the issue once and for all. In the eye of the inevitable reemergence of the anti-suit injunction it is high time to address the issue. Otherwise, parties involved in cross-border litigation in Europe may be in danger of having to litigate with minimum legal certainty or even becoming playing balls amongst jurisdictions. Such a situation would scare off parties and decrease Europe’s attractiveness as a legal venue. Therefore, it is not only in the parties’, but also in both the UK’s and EU-27s interest to resolve the issue of anti-suit injunctions in transnational litigation in Europe.

Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention

The Judgments Convention establishes a list of jurisdictional filters, at least one of which must be satisfied for the judgment to circulate. One of those is the implied consent or submission of the defendant to the jurisdiction of the court of origin. While submission is a common jurisdictional basis in international litigation, its definition and treatment vary significantly across states, whether to establish the jurisdiction of the court of origin or as a jurisdictional filter at the enforcement stage in the requested court. This diversity is most evident with respect to the mechanics and consequences of objecting to jurisdiction to avoid submission. The Judgments Convention adopts a variation on an existing approach, arguably the least complex one, in pursuit of its goal to provide predictability for parties involved in cross-border litigation. This contribution canvasses the various approaches to submission in national law with a view to highlighting the points of convergence and divergence and revealing significant complexities associated with some approaches. It then examines how the text in the Convention came to be adopted and whether it is likely to achieve its purpose.

Cross-border litigation: Evaluating the Brexit impact – a socio-legal model for data analysis

The UK decision to leave the European Union could directly impact on the application of the EU private international law (‘PIL’) instruments in the UK. Any fresh legal uncertainty driven by such a change in the legal landscape in relation to PIL could have significant impact on private parties’ access to remedies. This article proposes a socio-legal model for measuring the Brexit impact on litigants’ access to legal remedies. In order to systematically identify the important issues (which need to be considered by policy-makers as priority in this context), the proposed theoretical model is developed around the litigants’ strategies. The advanced model has two major features. First, it is set to analyse the triangular relationship between: 1) jurisdiction (procedural rules); 2) choice of law (applicable substantive laws); 3) outcome of a cross-border case. Secondly, the relevant claimants’ and defendants’ strategies in cross-border cases are thoroughly considered by taking a game theoretic perspective.

Contracts, Pigeonholes and Irish-Bulgarian Connections. Cross-Border Litigation on Property Service Charges: Kerr v Postnov and Postnova

Contracts, Pigeonholes and Irish-Bulgarian Connections. Cross-Border Litigation on Property Service Charges: <i>Kerr v Postnov and Postnova</i>

Book review: Cross-Border Litigation in Europe, edited by Paul Beaumont, Mihail Danov, Katarina Trimmings, Burcu Yüksel. (Oxford: Hart Publishing, 2017)

Book review: <i>Cross-Border Litigation in Europe</i>, edited by Paul Beaumont, Mihail Danov, Katarina Trimmings, Burcu Yüksel. (Oxford: Hart Publishing, 2017)

Melhorar o Acesso aos Tribunais e o Acesso à Justiça na Litigação Transfronteiriça: Lições de Experiências da União Europeia

textabstractSeeking to guarantee both citizens and companies the possibility to defend and enforce their rights in a Europe of open borders, a number of EU legal instruments have been adopted to support access to justice in cross-border litigation. Several years into their application, key questions remain to be answered. Do these instruments actually facilitate parties’ access to courts and justice? What are the problems encountered in practice and which are the envisaged solutions? What are the reasons why European procedural instruments are rarely used? Through quantitative and qualitative data, the paper explores the legal practitioners’ experience with European instruments, and their perception of the usefulness and usability of these instruments dedicated to cross-border litigation. Furthermore, the analysis seeks to determine whether these instruments succeed in facilitating parties’ access to courts in a transnational setting, and looks into the use of information and communication technology as an additional means contributing to achieving justice