Rome II: Will It Prevent Forum Shopping And Take Account Of The Consequences Of Choice Of Law?

This contribution focuses on the interaction between three phenomena: corporate restructuring, choice of law, and transaction avoidance. In this context, scholars have criticised Art. 13 of the European Insolvency Regulation for providing a possibility for forum shopping. This article enables firms to declare the law of the eu Member State where the provisions on transaction avoidance allow for the most freedom to take restructuring measures applicable to contracts. Literature on company restructuring shows that a combination of restructuring measures – usually additional credit for additional conditions and/or collateral - helps companies overcome financial distress. We argue that rules on transaction avoidance should take this balance into account when voidance is demanded. Using the example of Dutch and German rules on transaction avoidance, we argue that the German rules are more accommodative than the Dutch rules. Therefore, firms may benefit using the German rules on transaction avoidance rather than the Dutch rules.

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‘LIBEL TOURISM’ AND CONFLICT OF LAWS

International and Comparative Law Quarterly ◽

10.1017/s0020589309990029 ◽

2010 ◽

Vol 59 (1) ◽

pp. 25-38 ◽

Cited By ~ 9

Author(s):

Trevor C Hartley

Keyword(s):

Free Speech ◽

Point Of View ◽

The Internet ◽

Forum Shopping ◽

Eu Law ◽

Choice Of Law ◽

Conflict Of Laws ◽

Forum Non Conveniens ◽

Genuine Problem ◽

Libel Law

AbstractThis article considers the problem of ‘libel tourism’ (forum shopping in transnational libel cases) from the point of view of English and EU law (both relevant in certain situations). If proceedings are brought in a forum having no real connection with the case, and if the lex fori is applied, free speech in other countries could be undermined. This is particularly a problem where the case is brought in England, because of the pro-claimant slant of English libel law. The article notes when English conflicts law is applicable and when EU conflicts law is applicable, and explains the English and EU law regarding choice of law, jurisdiction and forum non conveniens in order to assess whether there is a genuine problem. It concludes that there is, particularly with regard to the Internet. Possible solutions are suggested.

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