Rules Of Jurisdiction Research Articles

The Structural Rules of Transnational Law

The ability of a country to regulate extraterritorially depends not simply on rules of prescriptive jurisdiction but also on rules of judicial jurisdiction and the enforcement of judgments. The most extraterritorial law in the world will have little impact if a court cannot or will not exercise jurisdiction over defendants who violate it, or if the resulting judgment cannot be enforced against the defendants' assets. Extraterritoriality must therefore be examined not in isolation but as part of a larger set of rules that I have called the structural rules of transnational law.

The Inevitability of ‘Insolvency Tourism’

This article seeks to describe and analyse the phenomenon of ‘insolvency tourism’, a popular term used to describe the manoeuvring of debtors to secure the application of (more favourable) insolvency proceedings in a jurisdiction other than the one where they are incorporated or domiciled. This article argues that insolvent debtors are assisted in this by two factors: (i) the jurisdiction rules in the European Insolvency Regulation that permit a latitude of interpretation and are susceptible to manipulation; and (ii) the current and continuing disparity in domestic insolvency laws and available procedures within the European Union. This article looks at whether the phenomenon of ‘insolvency tourism’ will be diminished as a result of changes to the European Insolvency Regulation and the gradual convergence of national approaches to insolvency and European initiatives in this field.

Choice and Regulatory Competition: Rules on Choice of Law and Forum

The paper analyzes Rules of Private International Law from the perspective of "Choice and regulatory competition."The field of private international law (hereinafter "PIL") is known as an abstract and peculiar discipline. PIL could be considered peculiar because through the application of PIL a new dimension is added to the law: PIL is a field that determines whether, in private disputes with cross-border elements, a judge can hear a case according to rules of international jurisdiction and subsequently, according through rules of applicable law, which law will be applied by this court. On the one hand it may very well be the case that taking the added value given by PIL-rules this will possibly make the solution of the case more difficult and complicated. But on the other hand the very fact that a new dimension is added to the law through the application of PIL may grant to private actors - both individuals and companies - additional legal options in which new additional strategies can be followed.

Annex proceeding and the continued interplay with the Brussels Ia Regulation

This article deals with the interrelation between recast Brussels I Regulation and European Insolvency Regulation in respect of proceedings featuring connection with insolvency. It is essential to accommodate these proceedings within the scope of one or another regulation since it determines applicable jurisdictional rules and different possibilities for refusing the recognition or enforcement of a judgment. The article examines which type of actions could qualify as “deriving directly from the insolvency proceedings and which are closely linked to them” (annex proceedings) and therefore fall within European Insolvency Regulation. The possibility to invoke this regulation against third state defendants and exclusivity of jurisdiction in annex proceedings are also discussed.

COMIng, and Here to Stay. The Review of the European Insolvency Regulation

In this contribution I summarily review the changes to the European Insolvency Regulation (‘EIR’). The new Regulation, 2015/848, will apply to insolvency proceedings opened after 26 June 2017. It repeals Regulation 1346/2000. I will use ‘EIR 2015’ for the new Regulation and ‘former EIR’ when I refer to Regulation 1346/2000. In reviewing the changes, I have given readers uninitiated with the Regulation some context to the core provisions and ambitions of the Regulation. However this article is not meant to provide general instruction into the EIR as a whole. As a preliminary note, the Regulation’s official title is a bit of a misnomer. The title of the Regulation is simply ‘Regulation [number] on insolvency proceedings’. However the Regulation does not harmonise substantive insolvency law. It is an instrument of private international law, harmonising jurisdictional rules, applicable law and recognition and enforcement of judgments in insolvency matters.

CDC v Akzo Nobel and Others: Clarifications on the Jurisdiction Rules in Cartel Damages Claims

<i>CDC v Akzo Nobel and Others</i>: Clarifications on the Jurisdiction Rules in Cartel Damages Claims

Establishment and Development of the Post-war New International Civil and Commercial Order

Supported by new rules of private international law, a new international civil and commercial order has taken shape, comprising international civil and commercial jurisdiction rules, conflict-of-law rules, international civil and commercial judicial assistance rules and disputes resolution mechanism. Different from the international economic order, the new international civil and commercial order stands side by side and complements the new international economic order, as well as the new international political order. As the international civil and commercial order continues developing in an open, inclusive, multilateral, and flexible way, it will play a more important role in safeguarding international security and prosperity, and promoting common interests of humankind. In this context, safeguarding, improving, and actively promoting the international civil and commercial order is of vital significance for China’s peaceful rise and the realization of China’s dream of great rejuvenation.

Are You Defending Your Clients Where They Don't Belong? Corporate Defendants' New Potent Defense Is Personal (Jurisdiction, That Is)

PENNOYER v. Neff (1) may be just a vague memory from Civil Procedure class in law school, but no doubt every lawyer remembers learning same fundamentals of personal jurisdiction. To sue a defendant in a particular forum, a plaintiff must show personal jurisdiction over defendant in compliance with that forum's long-arm statute and Constitution's Due Process Clause. Personal jurisdiction comes in two forms--specific jurisdiction and general jurisdiction. While specific jurisdiction likely got ample airtime on intricacies of minimum contacts and stream-of-commerce, general jurisdiction typically was reduced to a single sound bite: and systematic activities by a corporation in a particular state were sufficient to subject that corporate defendant to general jurisdiction in that forum. Civil Procedure professors were not only ones, however, to give short shrift to general jurisdiction. In a nearly 70 year period, Supreme Court issued scores of opinions featuring specific jurisdiction to a mere three opinions on general jurisdiction. Thus, general jurisdiction played little or no role in defense strategy of large companies conducting business on a national scale. Unless plaintiff named wrong corporate entity as a defendant, most companies conceded personal jurisdiction in every state because they were doing business in every state; companies (and courts) usually accepted prevailing general jurisdiction mantra of and systematic to be sufficient. In January 2014, however, United States Supreme Court catapulted general jurisdiction into spotlight and turned conventional wisdom on its head about reach of general personal jurisdiction with its eight-Justice majority decision in Daimler AG v. Bauman. (2) The Supreme Court eliminated and systematic test and gave Civil Procedure professors, district courts, and most importantly, corporate defense counsel a new sound bite with powerful teeth: a corporation may be subject to general jurisdiction only where it is at home. (3) The two paradigm places a corporation is at home are its state of incorporation and its principal place of business. Consequently, general jurisdiction now should be an essential element of corporate defense strategy in any case in which specific jurisdiction is lacking as to one or more plaintiffs. I. The Beginning: International Shoe and Its (Sparse) Progeny The Supreme Court's 1945 decision in International Shoe Co. v. Washington (4) laid foundation for general personal jurisdiction over corporate defendants. The Supreme Court adopted a broad interpretation of personal jurisdiction and limits placed on it by Due Process Clause. The Supreme Court issued often-quoted rule of specific jurisdiction that defendant need only have certain minimum contacts with forum state that maintenance of suit does not offend 'traditional notions of fair play and substantial justice.' (5) But for a corporate defendant, Court explained that the continuous operations in forum state could be so substantial and of such a nature as to justify suit against it in causes of action arising from dealings entirely distinct from those activities. (6) The parameters of this early formulation of general jurisdiction, however, remained unclear. And in nearly 70 years that followed International Shoe, Supreme Court decided only two general jurisdiction cases. A. Perkins v. Benguet Consolidated Mining In first case, Perkins v. Benguet Consolidated Mining, (7) Supreme Court formalized International Shoe's and systematic activities test. (8) Plaintiff Perkins, a nonresident, sued a foreign mining company in Ohio for dividends she claimed as a stockholder and for damages resulting from company's alleged failure to issue stock certificates to her. (9) The mining company was organized under laws of Philippine Islands, where it operated profitable gold and silver mines. …

The contribution of jurisdiction as a technique of demand side regulation in claims for the recovery of cultural objects

This article considers the role of jurisdiction in supporting private claims for the cross-border recovery of cultural objects from an EU member state. In particular, this article considers a new, “sui generis”11 A Briggs, Private International Law in English Courts (Oxford: University Press, 2014), 283. special jurisdiction rule in Article 7(4) of Regulation EU 1215/2012, the Brussels I Recast Regulation. Article 7(4), inter alia, enables “(A) person domiciled in a Member State to be sued in the courts of another Member State […] as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive [93/7/EEC] initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seised”. This special jurisdiction rule is a welcome development towards facilitating the return of a cultural object from the place where it is seized (for example where there is market demand or when the object is in transit), to a party asserting ownership. In practice the utility of this special jurisdiction rule will depend upon its scope and interpretation by the Court of Justice together with its ability to offer a “counterbalance”22 B Hess, “The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction”, in F Pocar, I Viarengo and F C Villata (eds), Recasting Brussels I: Proceedings of the Conference Held at the University of Milan on November 25–26, 2011 (CEDAM, 2012), 107. to Article 4 and the other special grounds of jurisdiction in the Brussels I Recast Regulation. This paper concludes that this special jurisdiction rule is a key step towards an EU-led “transnational policy of protection of cultural property”,33 A Chong, “Transnational Public Policy in Civil and Commercial Matters”, [2012] Law Quarterly Review 88–113, 106. which may require further approximation of EU private international law in the future.

PRESENCE AS A BASIS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT SOUNDING IN MONEY: THE “REAL AND SUBSTANTIAL CONNECTION” TEST CONSIDERED

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is that the court which pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

The jurisdiction of Japanese courts in a comparative context

This article highlights, from comparative perspectives, some important features of Japanese rules of jurisdiction, which were put on statutory footing with effect from 1 April 2012. Comparison is made with the Brussels I-bis (Recast) and the law of common law countries including the US case law on Due Process. A particularly detailed comparison is made between the Japanese rule allowing discretionary dismissal and the forum non conveniens principle. The heads of jurisdiction chosen for analysis include general jurisdiction, the Japanese version of “doing business” jurisdiction, jurisdiction for disputes over consumer contracts, jurisdiction in matters relating to tort, jurisdiction based on the presence of the defendant's asset and jurisdiction over rights in rem in immovable property. Those heads are chosen because comparative analysis is particularly useful to shed light on their distinctive or innovative characters as well as to demonstrate a potential for cross-fertilisation with other legal systems.

Employees' Intellectual Property Rights in Switzerland

In today’s knowledge-based global economy, most inventions are made by employed persons through their employers’ research and development activities. However, methods of establishing rights over an employee’s intellectual property assets are relatively uncertain in the absence of international solutions. Given that increasingly more businesses establish entities in different countries and more employees co-operate across borders, it becomes essential for companies to be able to establish the conditions under which ownership subsists in intellectual property created in employment relationships in various countries. This comparative law publication describes and analyses employers’ acquisition of employees’ intellectual property rights, first in general and then in depth as manifested in 33 jurisdictions worldwide. The book was developed within the framework of the International Association for the Protection of Intellectual Property (AIPPI), a non-affiliated, non-profit organization dedicated to improving and promoting the protection of intellectual property at both national and international levels. Among the issues and topics covered by the 49 distinguished contributors are the following: ; different approaches in different law systems; choice of law for contracts; harmonizing international jurisdiction rules; conditions for recognition and enforcement of foreign judgments; employees’ rights in copyright, semiconductor chips, inventions, designs, plant varieties, and utility models on a country-by-country basis; employee remuneration right; parties’ duty to inform; and instances for disputes. With its wealth of information on an increasingly important subject for practitioners in every jurisdiction, this book is sure to be put to constant use by corporate lawyers and in-house counsel everywhere. It is also exceptionally valuable as a thorough resource for academics and researchers interested in the international harmonization of intellectual property law.

Rethinking Personal Jurisdiction

This article sets out a pragmatic justification for the main features of current personal jurisdiction doctrine: personal jurisdiction rules minimize litigation costs and bias. This approach helps resolve difficult and open jurisdictional issues, such as the scope of general jurisdiction and the validity of jurisdiction based on the stream of commerce theory. This article then explores the empirical assumptions underlying this pragmatic explanation for current doctrine and shows how the law should change if those assumptions were incorrect. For example, if the danger of bias against out-of-state litigants is low, the “purposeful availment” requirement lacks justification and plaintiffs should be allowed to sue in their home states. 1. I NTRODUCTION American Personal jurisdiction law is generally considered to be in disarray. For over half a century, the Supreme Court has approached personal jurisdiction questions by analyzing the defendant’s “minimum contacts” and by asking whether the defendant “purposefully availed” itself of the benefits of the forum. As academic commentators have pointed out, these tests are supported neither by constitutional text nor by history nor by persuasive policy considerations. This article attempts to reorient personal jurisdiction through a thoroughly pragmatic analysis of the consequences of jurisdictional rules. In particular, it argues that personal jurisdiction affects welfare through its effects

Equitable Tolling of the Statute of Limitations in the Federal Tort Claims Act: Brief of Professor Gregory C. Sisk as Amicus Curiae in Support of Respondents, United States v. Wong, No. 13-1074, and United States v. June, No. 13-1075, United States Supreme Court

Although the Federal Tort Claims Act is a clear and unequivocal waiver of federal sovereign immunity, the United States nonetheless insists that the time limitations in the statute be strictly construed in favor of the government. The Government asks for the privileged benefit of an absolute jurisdictional rule that, contrary to ordinary expectations in civil litigation, need not be pleaded as an affirmative defense, cannot be waived, and is not subject to equitable tolling.Since the dawn of the century, however, the Supreme Court’s increasingly common encounters with statutory waivers of federal sovereign immunity have also become more conventional in interpretive attitude. An early jaundiced judicial attitude toward statutes allowing suits against the sovereign has resolved into a greater respect for the legislative pledge of relief to those harmed by their government. The Supreme Court has recognized a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted and applied (with the canon of strict construction fading away and ordinary tools of statutory interpretation prevailing).The plea of the United States for rigid application of time limitations to resist claims of tortious harm undermines the congressional purpose behind a remedial statute expressly making the Federal Government liable in the same way as a private person. The Government’s request contradicts the Court’s line of decisions denying special solicitude to the Government in applying procedural rules such as limitations periods. This amicus curiae brief seeks to place these controversies in the larger context of the Supreme Court’s coalescing jurisprudence of statutory waivers of federal sovereign immunity.

Understanding the EU Missionary Principle

The Lisbon Treaty amended the EU’s foundational documents to include several commitments regarding the global promotion of human rights, democracy, the rule of law, and other values, in all the EU’s “relations with the wider world”. These provisions, which have been described as giving rise to an emerging ‘missionary principle’, are not merely hortatory, but have been recognised by the judicial and political branches of the EU as having normative content. Specifically, they appear to be productive of legal obligations with respect to persons in third countries whose economic, social, and cultural rights may be threatened by the EU’s economic policies. This note understands the provisions and their interpretation in the Case C-366/10 Air Transport Association of America (ATAA) judgement as meaning that the content of the missionary principle is not, as has been argued, a straightforward obligation of compliance by the EU with obligations under treaty and customary international law. Instead, it requires the pursuit of ‘values’, only one of which is the creation of an international legal order committed to compliance with international law, which has to be pursued alongside an imperative to spread human rights, democracy, and the rule of law. Importantly, though they are universal in nature and inspired by human rights norms, they are the EU’s own values. It then follows that the scope of the missionary principle falls to be measured not under principles of international human rights jurisdiction, which demarcate the space within which States and International Organisations (IOs) have international obligations, but under the rules of jurisdiction under general international law, which demarcate the space within which States and IOs may pursue domestic competences. The picture is made even more interesting as a result of the peculiar notion of jurisdiction displayed by the Court of Justice (CJEU) in ATAA, and complicated further still by the fact that this permission is transformed into a requirement by the EU internal legal principle of consistency. Finally, in an attempt to explore the theoretical underpinnings of the missionary principle in political theory, I will compare and contrast Kantian theories and the concept of “sovereign trusteeship” recently advanced by Eyal Benvenisti.

Models for Codifying International Rules for Jurisdiction, Liability, Safety and Accident Investigation for Commercial Passenger Spaceflight

The prospect of commercial passenger spaceflight presents an unique opportunity to the space community, comprised not only of the scientists, engineers, enthusiasts and entrepreneurs, but also diplomats, governments, policy makers and legislators, to formulate an internationally acceptable set of requirements, standards and procedures that would give international consistency to operators of commercial passenger spaceflight, both for space tourism and for terrestrial transportation. It is important that the international community avail itself of this opportunity before various countries decide to become “flags of convenience” or to impose more stringent standards than overseas operators can comply with so as to protect a budding industry of their own. This article will explore, from parallels in maritime law and civil aviation law, and drawing from existing domestic examples of regulation, what lessons may be learnt from such existing bodies of law and regulation that may provide some guidance for the future formulation of regulations for on range safety, flight safety or accident investigation relating to commercial passenger spaceflight.

Separation of Powers and the Class Action

The scope of constitutional protection afforded “litigant autonomy” — that is, claim owners’ ability to control their own claims — is one of the most hotly debated questions in all of class action law. Participants in this debate, though, share an unstated assumption: The source of constitutional protection for litigant autonomy begins and ends with due process. This Article challenges that assumption by rotating they way we view litigant autonomy. Yes, litigant autonomy is a due process-protected interest. But it is also a building block of our system of limited federal jurisdiction, which exploits litigant autonomy to check against federal consolidation. Jurisdictional rules do so by giving claim owners substantial power to use control of their claims to dodge federal court — through, for example, their selection of the theory of the case and their control over party structure. The trajectory of modern mass torts reveals how significant this check is: when each person injured in a mass tort controls her own claim, substantial chunks of litigation inevitably radiate out of federal courts’ reach into state court as litigants leverage their claim control to park their claims there. Class actions, indeed, are such a potent force for federal consolidation in no small part because they override class members’ ability to exploit the jurisdictional power of claim control.By focusing on litigant autonomy’s jurisdictional role, this Article opens a new way of thinking about the source of constitutional constraints on federal class actions — one rooted in some familiar separation of powers and federalism principles, rather than due process. Along the way, it also plugs a gap in the theoretical literature on class actions: While class action scholars almost uniformly agree due process, by itself, can’t justify the Court’s narrow approach to class certification, they haven’t identified other constitutional principles that can convincingly ground the Court’s current class action jurisprudence. By approaching litigant autonomy from a new angle, this Article identifies one overlooked way to do so.

The Debate over Companies’ Liability for International Environmental Damages: a Comparison between the Jurisdictional Rules of the European Union and the United States

The complexity of the environmental man-made disasters make the perspective of effectively preventing and repairing the damages in the national, regional and international context, using the public international law, less likely. The issue of hydrocarbons spills in the Mexican gulf at the border of France and Spain, in Switzerland, Equator, Nigeria, and Indonesia, caused by well-known Companies such as BP, Exxon, Valdez, Shell underline the incomplete treatment of the damages repair through the public international law, as the cases are barely brought to international courts, and the compensations are far from repairing the negative consequences for the environment that result from these damages.

The Rinau Case and the wrongful removal or retention of children

The Rinau Case is a landmark decision of the ECJ regarding the wrongful removal or retention of children in the Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments both in matrimonial matters and those of parental responsibility (Brussels II bis). Having this case as starting point, this article explains the fast proceedings laid down in Brussels II bis Regulation for situations of wrongful removal or retention of children and the special rules for the recognition of the decision of return of the child wrongfully removed or retained in another Member State. However, as a preliminary point of discussion, and in order to allow a more comprehensive understanding of the proceedings concerning the wrongful removal or retention of children under the Regulation, a brief explanation of the framework of the regulation and the rules of international jurisdiction in matters of parental responsibility is provided.

American College of Occupational and Environmental Medicine's Occupational and Environmental Medicine Competencies-2014: ACOEM OEM Competencies Task Force*.

The preventive medicine foundation of occupational medicine impacts all the different practice areas of OEM, whether it involves preventing illness related to a hazardous exposure, treating injury due to an employee health condition, or addressing unnecessary work disability after an occupational injury. The OEM physicians are required to effectivelyinteractwithawiderangeofother professionals and provide guidance not only to patients but also to other clinicians and occupational health nurses, employers, safety and industrial hygiene professionals, human resource managers, attorneys, labor unions, and public health care professionals. In these interactions,OEMphysiciansshouldfollowa strict code of ethics related to matters of confidentiality and potential conflicts of interest. Detailed guidance in this area is provided in ACOEM Code of Ethics. 16 Effective communication in OEM includes risk communication, patient education, workforce education, development of policy and guidance documents, and medical/legal document preparation. Physicians practicing OEM typically