Book reviews: July 2023
A guide to global private international law
Paul Beaumont and Jayne Holliday (eds)
PUBLISHER: HART PUBLISHING, STUDIES IN PRIVATE INTERNATIONAL LAW
A guide to global private international law is an impressive piece of work.
Its main aim is to support the work of the Hague Conference of Private International Law (“HCCH”) and “the progressive unification of private international law” (article 1 of the Statute of the HCCH). It does not, however, focus only on the work done by the HCCH: it also takes account of the other relevant international and regional developments, for example from the UN and UNCITRAL, Inter-American conventions and EU frameworks. It also examines how it is possible to use tools at the national level to help to solve challenges arising from the operation of private international law rules.
The book includes the analysis of the relevant legal and quasi-legal methods and mechanism that are used to unify private international law: conventions, agreements and legal instruments, principles and guides, the role of case law and academia.
Divided into six parts and 41 chapters, the book analyses systematically the status of the various facets of global private international law.
It is edited by Paul Beaumont and Jayne Holliday from the University of Stirling. Its 53 contributors represent equally civil law and common law traditions and come from different countries, continents and legal thoughts and traditions. Some writers are very prominent, established experts in the field, while others are up and coming. They are academics, practitioners and drafters of the new treaties and instruments in private international law.
Outline of the book
In the first part and chapter the editors introduce the book and the project. The introduction sets out the scale and aims of the book, and presents the parts, chapters and contributors.
Part II (chapters 2-6): Theory. In this part the authors explore the possible theoretical underpinnings of private international law and challenges arising from differences between common and civil law systems and the domestic rules. This part includes chapters on theory, characterisation, connecting factors, renvoi and preliminary questions, and the role and function of public policy and mandatory provisions.
Part III (Chapters 7-13): Institutional and Framework Issues. The first chapters in this part analyse the workings of the HCCH, and the role of the national organs designated by the HCCH and the central authorities designated by the HCCH Conventions.
Further chapters continue the analysis of the issues arising from the domestic legal systems, such as classification, i.e. whether issues are classified under national legal systems as procedural or substantive; application of foreign law and facilitation of access to it; and how states can be brought before domestic courts as litigants in international matters.
Final chapters in this part examine the operation of the relevant Hague Conventions and other instruments on the service of documents and taking of evidence.
Part IV (Chapters 14-31): Civil and Commercial Law (excluding family law). This is where the authors and chapters go through the various aspects of civil and commercial law topics with private international law relevance.
There are chapters on specific issues surrounding the applicable law regimes and jurisdiction rules to contracts and torts and companies.
In chapters on maritime law, succession and property, the authors consider areas where there are many international treaties, but where the rules are scattered.
The chapters on trusts, choice of court agreements and recognition and enforcement of judgments show that areas have been well developed by the HCCH Conventions and would benefit from states acceding to those Conventions. A separate chapter focuses on how the HCCH still needs to work further on the conflicts of jurisdiction.
Chapters on insolvency and bankruptcy law and unjustified enrichment show how a lot of work has been done by organisations other than the HCCH, such as the UN or the EU.
One chapter addresses how private international law can help the effectiveness of the arbitration process. Finally, there are chapters on new, emerging issues and how to develop the private international law on competition law enforcement, intellectual property and collective redress.
Part V (Chapters 32-40): Family Law. This is the second substantive part in the book, analysing family law topics.
On matrimonial matters, this part includes separate chapters on divorce and matrimonial property. Regarding matters relating to children, it includes chapters on parental responsibility, custody and access, child abduction, adoption of children and family agreements involving children and maintenance.
There are also separate examinations of the new agreement on protection of adults and the need to recognise international surrogacy and international parentage issues.
Part VI (Chapter 41): Conclusion. The book ends with the editors evaluating the status of global private international law. They pull together the information and analysis presented in the book on the basis of where the global private international law is strong, where the rules are developing strongly, where there is great potential, where it is weak but could be revived, where it is largely non-existent but could be created, and where it is not the time to act on a new global instrument.
Overall, the book provides a very informative and thought-provoking contribution to the field of global private international law. It is equally a sourcebook and an analysis on how to take global private international law forward.
Its systematic approach – considering the topics and the possible solutions covering conventions, principles, guides, case law – makes it a useful tool for practitioners, judiciary, students and scholars alike, and anyone who is interested in private international law.
This is also a very timely contribution, because the various international and domestic private international instruments and mechanisms have become ever more important, considering the UK withdrawal from the EU and EU private international law mechanisms, and recovering business from the pandemic. In particular, the systematic coverage of all applicable Hague Conventions and UN mechanisms should provide value for the legal profession and solicitors working on cross-border activities.
Finally, the editors, Paul Beaumont and Jayne Holliday, deserve a special mention. Getting together all these contributions dealing with such highly technical topics and ending up with a such an easily readable volume has taken a lot of work and should be applauded.
Dr Helena Raulus, member of the Law Society of Scotland Private International Law Reference Group
Contents and contributors
Part I: Introduction
Chapter 1, Introduction, Paul Beaumont and Jayne Holliday
Part II: Theory
Chapter 2, Pragmatism and Private International Law, Abubakri Yekini and Paul Beaumont
Chapter 3, Characterisation, Chiara Goetzke and Ralf Michaels
Chapter 4, Connecting Factors, Susanne L Gössl and Ruth Lamont
Chapter 5, Renvoi and Preliminary Questions, Maria Hook
Chapter 6, Public Policy and Mandatory Provisions, Trevor Hartley
Part III: Institutional and Framework Issues
Chapter 7, Hague Conference on Private International Law, Marta Pertegás and Paul Beaumont
Chapter 8, National Organs and Central Authorities under the HCCH Conventions, Ignacio Goicoechea and Brody Warren
Chapter 9, Substance and Procedure, Richard Garnett
Chapter 10, Application of Foreign Law, Marta Requejo Isidro
Chapter 11, States as Litigants in International Matters, Uglješa Grušić, Paul Herrup and Lucian Martinez
Chapter 12, Service of Process, David McClean
Chapter 13, Taking of Evidence, Brooke Marshall and Nadia de Araujo
Part IV: Civil and Commercial Law
Chapter 14, Law Applicable to Contracts, Symeon C Symeonides
Chapter 15, Contract Jurisdiction, Ron Brand and Karen Vanderkerckhove
Chapter 16, Companies, Johan Meeusen
Chapter 17, Competition Law Enforcement: Private International Law and Access to Effective Legal Remedies in Cross-Border Cases, Mihail Danov and Carmen Otero García-Castrillón.
Chapter 18, Tort: Applicable Law, Michael Hellner
Chapter 19, Tort: Jurisdiction, Reid Mortensen
Chapter 20, Unjust(ified) Enrichment, Adeline Chong and Jan Lüttringhaus
Chapter 21, Property, Janeen M Carruthers and Matthias Weller
Chapter 22, Succession, Albert Font I Segura and Jayne Holliday
Chapter 23, Trusts, Jonathan Harris
Chapter 24, Insolvency and Bankruptcy, Francisco Garcimartín Alférez and Sara Sánchez
Chapter 25, Intellectual Property, Paul Torremans
Chapter 26, Arbitration, Guiditta Cordero-Moss
Chapter 27, Maritime Exceptionalism in Global Private International Law, Verónica Ruiz Abou-Nigm
Chapter 28, Choice of Court Agreements, Paul Beaumont and Mary Keyes
Chapter 29, Recognition and Enforcement of Judgments, David Goddard and Paul Beaumont
Chapter 30, Conflicts of Jurisdiction, Ardavan Arzandeh and Matthias Lehmann
Chapter 31, Collective Redress, Koji Takahashi and Zheng Sophia Tang
Part V: Family Law
Chapter 32, Divorce, Máire Ní Shúilleabháin and Jayne Holliday
Chapter 33, Parental Responsibility, Custody and Access, Costanza Honorati and Mary Keyes
Chapter 34, Child Abduction, Maria Caterina Baruffi and Jayne Holliday
Chapter 35, Adoption of Children, Laura Martínez-Mora
Chapter 36, Maintenance, Paul Beaumont and Lara Walker
Chapter 37, Matrimonial Property, Rhona Schuz
Chapter 38, Family Agreements Involving Children, Paul Beaumont and Nieve Rubaja
Chapter 39, The Protection of Adults, Pietro Franzina
Chapter 40, International Surrogacy and International Parentage: Hopes for a Global Solution, Giacomo Biagioni
Part VI: Conclusion
Chapter 41, Conclusion: Mapping of the Strength of Global Private International Law, Paul Beaumont and Jayne Holliday
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