III Trust Arbitration as a Matter of National Law, 17 Trust Arbitration in Switzerland

2016 ◽  
Author(s):  
Wüstemann Tina ◽  
Huber Roman
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Swiss Law ◽  
The Hague ◽  
Substantive Law ◽  
Conflict Of Law

This chapter argues that Switzerland’s importance as centre for trust services as well as its longstanding tradition in international arbitration make it a perfect venue for trust arbitration, particularly in light of the scarcely developed arbitration law and practice in several offshore trust jurisdictions. Against this background, it examines whether trust disputes can be arbitrated in Switzerland, with a particular focus on the recognition of arbitration clauses in trust deeds. While Switzerland does not provide for the institution of trusts in its substantive law, it has ratified the Hague Trust Convention with took effect from 1 July 2007 and has enacted new conflict of law provisions, in particular Articles 149a to 149e of the Private International Law Statute (PILS), which operate so as to allow the full ‘implantation’ (or incorporation) of foreign trusts into Swiss law.

scholarly journals The Impact of Brainerd Currie’s Governmental Interest on the Principle of the Closest Connection

Lex Russica ◽  
2020 ◽  
pp. 9-19
Author(s):  
Т. V. Novikova
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Matter Field ◽  
Regulation Mechanism ◽  
Private International Law ◽  
The Russian Federation ◽  
Substantive Law ◽  
The Impact ◽  
Law Regulation ◽  
Conflict Of Law

In modern private international law, the principle of the closest connection involves not only the identification of the prevailing territorial connection, but also the consideration of substantive factors (protection of a weaker party, preferability to keep the transaction valid, etc.). The paper substantiates the thesis that, being initially based on the territorial localization of the relationship, the analyzed principle in the course of its development was enhanced with the achievements of others doctrinal approaches to the resolution of the conflict-of-law issue, including the concept of “governmental” or “state” interest developed by American legal scholar Brainerd Currie. A genius breakthrough suggested by B. Currie is examined as an attempt to overcome the mechanical approach of conflict-of-law rules, expand the subject matter field of assessment at the stage of resolving the conflict-o-law issue and, ultimately, evaluate the substantive law result of this decision within the framework of understanding law as a tool for the protection of an individual by the state. Nevertheless, substantive law factors, contrary to one of the main tenets of B. Currie’s teaching, do not replace traditional conflict-of-laws rules at all. To the extent that the conflict-of-law regulation mechanism balances predictability and flexibility of decisions, it complements the search for territorial connection with substantive law considerations. The research makes it possible to conclude that the principle of the closest connection in private international law of the Russian Federation, in the context of global trends in the development of approaches to the resolution of conflict-of-law issues, is complex in nature, as indicated by the explanation of the Plenum of the Supreme Court of the Russian Federation that “when determining the closest connection, the court,” first, establishes ”the prevailing territorial connection” and, second, “may take into account the application of the law of which country will best realize the universally recognized principles of civil law and of its institutions.” As a consequence, it is the combination of territorial and substantive law components in the content of the principle of the closest connection that provides an appropriate balance between predictability and flexibility of the modern mechanism of conflict-of-law regulation.

United in Diversity – Regional Unification of the Conflict-of-law Rules in Matters of Matrimonial Property Regimes

2019 ◽  
pp. 160-178
Author(s):  
Lucie Zavadilová
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Public Interests ◽  
The Public ◽  
General Part ◽  
Substantive Law ◽  
Fundamental Values ◽  
Property Regimes ◽  
Conflict Of Law

The unification of the conflict-of-law rules in matters of matrimonial property regimes at EU level seeks to mitigate differences in substantive law in particular legal systems. The aim of this contribution is to analyse the doctrine of overriding mandatory provisions and consider the applicability of the public policy exception, which limit the application of the law otherwise applicable determined in compliance with the unified conflict-of-law rules. The question author addresses in this paper is whether these institutes of the general part of private international law provide for sufficient safeguards to protect the fundamental values and public interests of the forum law in matters of matrimonial property regimes.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 19 Asian Principles of Private International Law: The Asian Principles of Private International Law and the Hague Principles

2021 ◽  
Author(s):  
Takasugi Naoshi ◽  
Elbalti Béligh
Keyword(s):  
International Law ◽  
Driving Force ◽  
Private International Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
International Jurisdiction ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Relationship

This chapter looks at the relationship between the Asian Principles of Private International Law (APPIL) and the Hague Principles. The APPIL are intended to be a non-binding instrument which includes a comprehensive set of principles on private international law (PIL) generally recognized among the different Asian jurisdictions. The main purpose of the APPIL is to provide guidance to possible future harmonization of PIL rules and principles in Asia. Compared to the Hague Principles which are limited only to the issue of choice law in international contracts based on the express or tacit will of the parties, the APPIL have much broader scope, including choice of law, international jurisdiction, the recognition and enforcement of foreign judgments, and judicial support to international arbitration. The chapter then outlines the history and the driving force behind the APPIL.

Part 1 General and Special Reports, 7 International Commercial Arbitration: Perspective on the Hague Principles in International Commercial Arbitration

2021 ◽  
Author(s):  
Gama Lauro ◽  
Girsberger Daniel ◽  
Rodríguez José Antonio Moreno
Keyword(s):  
International Law ◽  
State Court ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
Party Choice ◽  
The Hague ◽  
Model Law

This chapter studies how the private international law rules of most jurisdictions have traditionally addressed State court litigation, without considering the specificities of international arbitration. Many nations have now created their own legislation for international arbitration or adopted the UNCITRAL Model Law on International Commercial Arbitration. These laws regularly contain their own rules dealing with parties’ choice of law on the merits. The chapter then explores choice of law in international arbitration with a particular view on the Hague Principles which are, as paragraph 4 of their Preamble discloses, intended to apply equally to courts and arbitral tribunals. It analyses the approach arbitral tribunals have taken when confronted with choice of law issues, and particularly a party choice of the law applicable to the merits of the dispute. The chapter also assesses whether it is correct and if so, for which reasons, and in which way, that commercial parties have a larger autonomy in arbitration, compared to litigation, to choose non-State rules of law, and which types of rules they may choose. Finally, it demonstrates why, how, and to what extent the Hague Principles can contribute to define, delineate, interpret, and supplement existing (conflict of law) regimes in the field of international arbitration.

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.

scholarly journals The Hague Judgments Convention and How We Negotiated It

2020 ◽  
Author(s):  
Jin Sun ◽  
Qiong WU
Keyword(s):  
International Law ◽  
Great Influence ◽  
Negotiation Process ◽  
Private International Law ◽  
Mutual Benefit ◽  
Global Circulation ◽  
Recognition And Enforcement ◽  
The Hague

Abstract In July 2019, the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. As an outcome of the Judgments Project, this Convention will exert a great influence on the global circulation of foreign judgments. China attached great importance to the Judgments Project and participated in the full negotiation process. This paper is a reflection of some of the Chinese negotiators’ approaches in handling certain very difficult but important issues in the process, with the hope that it may shed some light on China’s negotiation practice and the principles it adheres to in the international law arena, which are fully in line with the principles of equity and justice, mutual benefit, and win-win outcome.

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