Introduction

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Intellectual History ◽  
Private International Law ◽  
Historical Account ◽  
The Common ◽  
The Individual ◽  
Historical Accounts ◽  
Point Of Reference

This chapter describes and contests the common assumptions about nineteenth-century private international law intellectual history. Conventional historical accounts focus on broad schools of thought in private international law (PrIL), such as nationalism and internationalism, or personality and territoriality. By contrast, the central thesis of this book, described in this first chapter, is that internationalism was constructed differently depending on whether nineteenth-century internationalists took the state or the individual as the point of reference. This chapter argues that reading contemporary concepts and debates into nineteenth-century PrIL scholarship prevented us from engaging with the nuances and unique motivations of nineteenth-century PrIL theories. Instead, this introductory chapter outlines the contextual perspective adopted in this book’s intellectual historical account, which ultimately helps in recovering and reconstructing a relational internationalist perspective in nineteenth-century private international law legal thought.

Nineteenth Century Perspectives on Private International Law

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Intellectual History ◽  
Global Justice ◽  
Theoretical Perspective ◽  
Private International Law ◽  
Public And Private ◽  
Analytical Foundation ◽  
History Of ◽  
The Individual

This book seeks to demonstrate that contrary to conventional histories of the discipline, various nineteenth-century writings on Private International Law (PrIL), which focused on the individual, rather than the state, adopted an account of the individual as social and relationally constituted. The book dispels two common assumptions about the nineteenth-century intellectual history of the field: first all individual- and private-law-centered perspectives were overly liberal and individualistic; and second, the association between public and private international law enabled the latter to focus on global public goods and global justice generally. By contrast, the book shows that while many nineteenth-century theories focused on the relationship between public and private international law injected much of the formalism and alleged neutrality of today’s private international law, several individual-centered perspectives adopted a relational, rather than individualistic image of the individual. By recovering academic debates in private international law between the mid-nineteenth to the mid-twentieth century, the book traces how this “relational internationalist” perspective was misunderstood and eventually disappeared from the memory of the field. Through a detailed analysis of the writings of the three main protagonists of the “relational internationalist” perspective, namely Joseph Story, Carl von Savigny, and Josephus Jitta, the book recovers the analytical foundation of this theoretical perspective with respect to rights, legitimate authority, and the cosmopolitan dimensions of private international law.

Introduction

2019 ◽  
pp. 1-42
Author(s):  
Adrian Briggs
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Legal Framework ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Common ◽  
Law And Legislation

This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.

Recognition, Rights, and Reasonable Expectations

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
The State ◽  
Late Nineteenth Century ◽  
Private International Law ◽  
Early Nineteenth Century ◽  
Public International Law ◽  
The Individual ◽  
Cross Reference ◽  
Rights Theories

This chapter provides an analysis of the way in which rights theories in private international law are constructed depending on whether one takes the state or the individual as the point of reference and whether one portrays an individualistic or a relational image of the transnational agent. It outlines the differences between early nineteenth-century individualistic theories, late nineteenth century state-centered rights theories, and the nineteenth-century relational internationalist perspective introduced in Chapter 2. The chapter suggests that historically the misrecognition of individuals and their pleas for justice was a corollary to the state-centered internationalist position under the private-public international law association. It further argues that relational internationalist theorists tried to create a cross-reference between individual reasonable expectations and larger sociopolitical considerations. Such theories emphasized a spectrum from liberty to social responsibility, based on their differentiation and analysis of the various types of private law relationships in the transnational realm.

Tracing the Relational Internationalist Perspective in Europe After the Second World War

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Twentieth Century ◽  
Human Rights ◽  
International Law ◽  
Second World War ◽  
Private International Law ◽  
World War ◽  
Analytical Point ◽  
The Individual ◽  
Second World ◽  
Point Of Reference

This chapter describes the internationalist thinking in private international law after the Second World War and the extent to which internationalist scholars of this period took the individual or the state as the analytical point of reference. It shows how, around the middle of the twentieth century, Henri Batiffol in France and Gerhard Kegel in Germany reawakened an interest in theoretical discussions around the justice dimensions of private international law, while also attempting to repurpose and validate private international law methodology and techniques. Furthermore, this chapter provides an in-depth reading of English private international law scholarship after the Second World War in order to show how English scholars tried to reconstruct private international law theories focused on vested rights as human rights theories.

Individual-Centered and State-Centered Internationalist Perspectives in American Private International Law Theory

2018 ◽  
Author(s):  
Roxana Banu
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
The State ◽  
Private International Law ◽  
Interest Theory ◽  
Realist Theory ◽  
Analytical Point ◽  
The Individual ◽  
Point Of Departure ◽  
Realist Perspective

This chapter starts by briefly describing the first wave of the realist theory in the writings of Walter Wheeler Cook and Ernest G. Lorenzen and then Brainerd Currie’s much more developed state-interest theory. The chapter then outlines a rich and underexplored debate among American realist scholars, with their critics, about the implications of choosing the individual or the state as the analytical point of departure in PrIL theory and methodology. It underscores three different ways in which individual-centered arguments were used to try to temper Currie’s state-centered premises. In reviewing critiques against Currie’s state-centered perspective, the analysis in this chapter distinguishes between arguments focused on fairness, those based on equity and equality, and those based on a sociological notion of disaggregated state interests. The chapter further discusses the parallels between the American realist perspective and the nineteenth-century relational internationalist perspective introduced in Chapter 2.

The International IP System: From Continuity to Resilience

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Nineteenth Century ◽  
Intellectual Property ◽  
International Law ◽  
Revolutionary Change ◽  
Minimum Standards ◽  
Multilateral System ◽  
Common Goals ◽  
The Common ◽  
Relationship Of

This chapter looks at how rule-relations within the international intellectual property (IP) system have developed from continuity (in constantly raising minimum standards) to resilience (against certain forms of increasing protection). It considers the evolution of the international IP system from the nineteenth century onwards, examining how each succeeding changes and additions to the system had established a relationship of continuity which integrates existing standards and adds new ones. The chapter then turns to the emergence of another revolutionary change. The integral nature of the common goals established in TRIPS’ object and purpose creates a form of ‘resilience’ of the multilateral system over attempts for inter-se modifications. Moreover, international law has appropriate tools so that those charged with applying, implementing, and interpreting multilateral IP norms can give effect to this resilience both in relations of interpretation and relations of conflict.

The Integrated Approach to Private and Public International Law—A Distinctive Feature of Italian Legal Thinking

2020 ◽  
pp. 262-282
Author(s):  
Pietro Franzina
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Distinctive Feature ◽  
Integrated Approach ◽  
Major Influence ◽  
Private International Law ◽  
Public And Private ◽  
Origin And Evolution ◽  
Private And Public ◽  
Legal Thinking

International law scholarship has traditionally been understood in Italy as encompassing the study of both public and private international law. The two subjects are still considered jointly for recruitment purposes and are mostly taught by the same professors. Pasquale Stanislao Mancini, who regarded nationality as a foundation of both disciplines, had a major influence on the popularization of this approach in the mid-nineteenth century. The advent of positivism, a few decades later, entailed a general rejection of Mancini’s views but did not challenge the integrated approach to the different branches of international law. Rather, the positivist turns triggered a renewed reflection on the ties between the two subjects. The study of international law, some argued, should cover, alongside international rules, such municipal rules as deal with international matters. The chapter outlines the origin and evolution of the Italian integrated approach to international law and its perception by today’s scholars, in Italy and abroad.

scholarly journals The Internet in Light of Traditional Public and Private International Law Principles and Rules Applied in Canada

2002 ◽  
Vol 39 ◽  
pp. 3-67 ◽  
Author(s):  
J.-G. Castel
Keyword(s):  
International Law ◽  
The Internet ◽  
Private International Law ◽  
Public And Private ◽  
International Context ◽  
International Convention ◽  
The Common ◽  
Use Of The Internet ◽  
Personal Jurisdiction ◽  
Conflicts Of Jurisdiction

SummaryThis article addresses the problems related to the use of the Internet in Canada in an international context. Does international law allow Canada to regulate the Internet and its actors even if they are located abroad? Under the constitution, which level of government has the authority to do so? In which circumstances have the courts in Québec and in the common law provinces personal jurisdiction over persons using the Internet in an international context and which law do these courts apply? When are Canadian courts prepared to recognize and enforce foreign judgments involving the Internet and its actors? The author deals with these questions and is of the opinion that in most situations the federal Parliament has the jurisdiction to prescribe and the Canadian courts have the jurisdiction to adjudicate with respect to the Internet and its actors in an international context without violating international law. However, to avoid conflicts of jurisdiction, it would be better to adopt an international convention covering the various aspects of the Internet.

RE FLIGHTLEASE: THE ‘REAL AND SUBSTANTIAL CONNECTION’ TEST FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS FAILS TO TAKE FLIGHT IN IRELAND

2014 ◽  
Vol 63 (1) ◽  
pp. 197-212 ◽  
Author(s):  
David Kenny
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
The Real ◽  
Recognition And Enforcement ◽  
The Common

AbstractThe common law rules for recognition and enforcement of foreign judgments were radically reformulated by the Canadian Supreme Court in Beals v Saldanha. Few other common law jurisdictions have considered whether or not to follow Canada in this development in private International Law. In 2012, the Irish Supreme Court definitively rejected the Canadian approach. This note examines the judgment in that case, and assesses the reasoning of the Irish Court.

Ascertaining the Statutory Lex Loci Delicti: Certain Difficulties Under the Private International Law (Miscellaneous Provisions) Act 1995

1998 ◽  
Vol 47 (1) ◽  
pp. 205-211 ◽  
Author(s):  
Barry J. Rodger
Keyword(s):  
International Law ◽  
Common Law ◽  
General Concept ◽  
Primary Role ◽  
Private International Law ◽  
Primary Rule ◽  
The Face ◽  
Degree Of Certainty ◽  
Major Reform ◽  
The Common

The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.

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