scholarly journals A NEW SOLUTION CONCERNING CHOICE-OF-LAW FOR THE ASSIGNMENT OF DEBTS

2021 ◽  
Vol 70 (3) ◽  
pp. 665-696
Author(s):  
Alison Xu
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Use Value ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Exchange Value

AbstractThis article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

Cross-border Insolvency

2017 ◽  
Author(s):  
Hamish Anderson
Keyword(s):  
International Law ◽  
Private International Law ◽  
Insolvency Law ◽  
Choice Of Law ◽  
Cross Border ◽  
General Law ◽  
Insolvency Proceedings

In the practice of insolvency law, the usual challenge is to work out the answer to a problem as a matter of general law and then to factor in the consequences of one or more of the parties being insolvent. In cross-border insolvency cases, this exercise can be made considerably more complicated by choice of law issues. Ultimately, cross-border insolvency questions are all questions of private international law which are determined in accordance with specific rules where applicable or otherwise in accordance with general principles. The aims are to recognize properly grounded foreign insolvency proceedings, to act in aid of them where appropriate, to ensure that English proceedings will achieve extra-territorial recognition where necessary, and thereby to achieve fairness for all creditors everywhere by avoiding conflicts and confusions between jurisdictions.

The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation

1998 ◽  
Vol 47 (1) ◽  
pp. 3-49
Author(s):  
Campbell McLachlan
Keyword(s):  
International Law ◽  
Banking System ◽  
Private International Law ◽  
International Banking ◽  
Functional Responses ◽  
Modern Approach ◽  
International Context ◽  
Choice Of Law ◽  
Cross Border ◽  
Run Up

A modern approach to private international law must deal adequately with three overall concerns. First, it must provide functional responses to the modern international context of trade and commerce in which cross-border problems arise. Second, it must provide effective and fair remedies in civil disputes when those disputes spill over national borders. Third, it must resolve the otherwise irreconcilable conflicts between national legal systems—not as an end in itself or solely as a means of finding comity among nations, but in order to do substantial justice between the private litigants involved. As Dicey had it in the choice of law context, this “does not arise from the desire of the sovereign of England or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.” It is the burden of this article to examine the way in which the English courts have sought to work out these three general functions in the context of developing rules that govern the ambit of interlocutory orders to disclose and trace the proceeds of fraud internationally. Having identified the problems of abuse presented by the new opportunities of the international banking system, the courts have been quick to innovate in developing new remedies. But just as quickly they have run up against the boundaries of such remedies, both in granting orders themselves and in reacting to foreign orders.

Characterisation of Breach of Confidence as a Privacy Tort in Private International Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Michael Douglas
Keyword(s):  
International Law ◽  
Private Information ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Unique Character ◽  
The Way

Certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law, in respect of rules of jurisdiction and choice of law. When a breach of confidence involves a misuse of private information, a tortious characterisation is appropriate. This view is consistent with appellate authority recognising the unique character of equitable jurisdiction. The article begins by considering debates concerning the juridical basis of breach of confidence, and its metamorphosis into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.

V The Foreign Element and Party Autonomy in Negotiable Instruments Law

2020 ◽  
Author(s):  
Geva Benjamin ◽  
Peari Sagi
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Cross Border ◽  
Electronic Transactions ◽  
Governing Principle

This chapter addresses two trends developing within the choice-of-law doctrine: the relaxation of the ‘foreign element’ requirement and the advances of the party autonomy principle. Chapter III has pointed to the advancing phenomenon of the increasing rate of cross-border commerce, electronic transactions, and scholarly writings as the reasons for a significant relaxation, or even elimination of the ‘foreign element’ requirement. The traditional presence of this element within the factual basis of any given case can be observed in almost every case of contemporary litigation. This suggests that most situations can be classified as private international law cases that would benefit from choice-of-law analysis. The chapter then considers a series of propositions for the introduction of the party autonomy principle as a governing principle of choice-of-law cases of negotiable instruments.

scholarly journals Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

2021 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Normative Framework ◽  
New Instrument ◽  
Enterprise Groups ◽  
Model Law ◽  
Insolvency Proceedings ◽  
International Instruments

AbstractIn recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

Diversity and Integration in Private International Law

2019 ◽  
Keyword(s):  
South America ◽  
International Law ◽  
Value Systems ◽  
Private International Law ◽  
Diverse Range ◽  
Cross Border ◽  
Wide Range ◽  
Depth Analysis ◽  
And Shifts ◽  
Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

Private International Law

2018 ◽  
Author(s):  
V.C. Govindaraj
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Application Of Law ◽  
Cross Border ◽  
Corrective Measures ◽  
The Supreme Court ◽  
The Law

In deciding cases of private international law or conflict of laws, as it is widely known, judges of the Supreme Court in India generally consult the works of renowned English jurists like Dicey and Cheshire. This volume argues that our country should have its own system of resolving inter-territorial issues with cross-border implications. The author critically analyses cases covering areas such as the law of obligations, the law of persons, the law of property, foreign judgments, and foreign arbitral awards. The author provides his perspectives on the application of law in each case. The idea is to find out where the judges went wrong in deciding cases of private international law, so that corrective measures can be taken in future to resolve disputes involving complex, extra-territorial issues.

scholarly journals Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

2017 ◽  
pp. 80-87
Author(s):  
Indrani Kundu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Civil Union ◽  
Foreign Law ◽  
Marriage Laws ◽  
The Difference ◽  
Domestic Law ◽  
Legal Procedures

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

scholarly journals Globalized Cross-Border Insolvency Law: The Roles Played by China

2021 ◽  
Author(s):  
Zinian Zhang
Keyword(s):  
International Law ◽  
Legal Status ◽  
Private International Law ◽  
Insolvency Law ◽  
Cross Border ◽  
Recognition And Enforcement ◽  
Foreign Judgment ◽  
Judicial Assistance ◽  
First Time

AbstractThis study empirically investigates China’s participation in the globalized cross-border insolvency collaboration system. It is the first time for the development of China’s cross-border insolvency law to be examined against the background of private international law on foreign judgment recognition and enforcement. The findings of this article reveal that foreign bankruptcy representatives face considerable difficulties in satisfying the treaty and reciprocity requirements when seeking judicial assistance from China, and that local protectionism in favour of China’s state-owned and state-linked companies undermines foreign bankruptcy representatives’ confidence in approaching China’s courts for support. Although there are several court recognitions of foreign bankruptcy judgments in China, this article finds that they are only used to acknowledge the legal status of foreign bankruptcy representatives to meet the demands of government authorities; Chinese courts have not taken a substantial step in recognizing a foreign bankruptcy judgment so as to bar individual creditors’ action in the interest of a foreign bankruptcy proceeding. On the contrary, for Chinese bankruptcy representatives seeking assistance abroad, they could take advantage of the liberal judicial infrastructure, especially of some advanced jurisdictions, to obtain recognition and relief.

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