Academic literature on the topic 'European choice-Of-Law rule'
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Journal articles on the topic "European choice-Of-Law rule"
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Grundmann, Stefan. "Costs and benefits of an optional European sales law (CESL)." Common Market Law Review 50, Special Issue (March 1, 2013): 225–42. http://dx.doi.org/10.54648/cola2013045.
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This contribution assesses the proposed Common European Sales Law (CESL) and its potential to enter into a fruitful competition with national laws ("Optional Scheme") against the background of a more general theory on vertical regulatory competition - drawing on the much richer theory of horizontal regulatory competition (namely concerned with Delaware). It does so along three lines of arguments: (i) Regulatory vertical competition, on a level playing field, has the potential to combine advantages of centralized rule-setting and decentralized rule-setting, but fails to do so in the case of this proposal. (ii) Regulatory vertical competition is in danger of being distorted by the central rule-setter when this rule setter not only makes one of the offers, but also arranges the conflict of laws rules and potentially even does in a way which favours its own offer - and this has been done in CESL. This kind of distortion of competition leads to the effect that parties may make choices not according to substantive law quality of the set of rules chosen, but because only one set profits from particularly advantageous rules of choice (reduction of transaction costs and economies of scale etc.). Finally, (iii) regulatory vertical competition may potentially lead to positive network effects of such importance that the set of rules proposed by the central rule setter, in fact, even though being optional only discards competitors altogether nevertheless. This may be an explanation of how the Delaware effect works and this may lead to a situation in which the 'external competition' of an EU Contract Law - with the national legislatures - is no longer strong enough. Therefore in the last two sections, the question is asked (i) how best to arrange 'internal competition' about the best ideas and the best schemes for an EU Contract Law Code and (ii) how to gain time for doing so (interim alternatives which would equally allow to realize most of the benefits which the adoption of CESL is aimed at). Based on all three lines of arguments, the paper strongly favours - as a minimum requirement - the transition for all national laws to an unrestricted home country principle for consumer sales, namely in e-commerce transactions.
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Wagner, Gerhard. "Article 6 of the Commission Proposal: Violation of Privacy - Defamation by Mass Media." European Review of Private Law 13, Issue 1 (February 1, 2005): 21–37. http://dx.doi.org/10.54648/erpl2005002.
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The Commission?s Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (Rome-II) supplies a special conflicts rules for media torts and other invasions of privacy rights. The purpose of Article 6 of the Commission Proposal is to coordinate choice of law and forum selection. This objective deserves support but is difficult to specify and to translate into choice of law rules. Article 5 No. 3 Brussels-I Regulation establishes jurisdiction not only at the place where the injury was sustained, but alternatively at the place where the wrongful act occurred. Pursuant to the holding of the Shevill judgment of the European Court of Justice the court sitting at the place of the wrongful act has jurisdiction to award damages in full, for total harm, whereas the courts at the several places of injury may allow remedies only with respect to the harm suffered within the confines of their own jurisdiction. In contrast to the explicit intentions of the Commission, its proposal on conflicts law does not provide for a similar rule, i.e. it does not supplement the jurisdictional principles of the Shevill judgment with similar choice of law rules. The same failure, however, also affects the proposal of the European Parliament, laid down in the report of Diana Wallis, prepared for The Parliament Committee on Legal Affairs and the Internal Market. The prerogative of ?Gleichlauf? requires choice of law rules which allow the courts seized either at the place of publication or at the place of injury to apply their own law, i.e. the lex fori.
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HERVEY, Tamara, and Anniek DE RUIJTER. "The Dynamic Potential of European Union Health Law." European Journal of Risk Regulation 11, no. 4 (September 4, 2020): 726–35. http://dx.doi.org/10.1017/err.2020.70.
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Some understandings of European Union health law are based on a presumption of law as a static and closed system. This approach to the Union as a legal entity has important ramifications. The Union is a political system created by and subject to the rule of law. Its successes (and failures) are attributable to the legalisation of solving externalities and ensuring Member State solidarity to gain benefits from integration. Member States, which create and sustain the Union by repeated acts of sovereign choice, choose to subject themselves to the rule of (Union) law. This protects both the Member States and the Union institutions (imperfectly, but nonetheless) from charges of illegitimacy. While recognising the benefits of such an approach to European Union integration and law-making, we take the view that law also has an important dynamic potential. That dynamic potential is inherent in all law, for law is embodied in text, and always open to interpretation, as the external contexts that give legal text meaning in the real-world change through time. We trace the dynamic potential of Union health law by looking at its legal basis to its foundational Treaties, and we plot its trajectory going forward.
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Rutgers, Jacobien. "Choice of Law in b2b Contracts: the Law of the Jungle." European Review of Contract Law 14, no. 3 (September 6, 2018): 241–68. http://dx.doi.org/10.1515/ercl-2018-1014.
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Abstract Is the law of the jungle the guiding principle with respect to choice of law clauses in international contracts between businesses (b2b contract)? Does a choice of law imply the rule of the strongest party? These and other questions are discussed in the light of 18 exploratory qualitative interviews with Dutch senior practising lawyers (advocaten). Lawyers were interviewed, since it is often presumed that they play an important role with respect to a choice of law in the pre-contractual phase. However, the perception of lawyers with respect to a choice of law is underresearched. The interview findings are discussed and compared to the data concerning a choice of law in the context of the debates about a common European contract law, regulatory competition, self-enforcing contracts and the legal origin theory. Finally, questions for future research are formulated. For instance, in the empirical research conducted sofar, no specific attention has been paid to small and medium sized businesses. Had they been considered, the outcome could have been different. The same may be said with respect to the different business sectors and the countries where the companies are established.
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Garriga Suau, Georgina, and Christopher A. Whytock. "Choice of law for immovable property issues: new directions in the European Union and the United States." Revista española de derecho internacional 74, no. 1 (January 25, 2022): 81–108. http://dx.doi.org/10.17103/redi.74.1.2022.1b.01.
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In both the European Union and the United States, it is a dynamic period for private international law regarding immovable property issues. The predominant approach has been that these issues are governed by the lex rei sitae —that is, the law of the State where the immovable is located. However, through a comparative examination of recent EU Regulations on succession, matrimonial property regimes, and the property consequences of registered partnerships, and of the new Third Restatement of Conflict of Laws project in the United States, this article shows that on both sides of the Atlantic there is a trend toward reducing the scope of the lex rei sitae rule. It explores both the reasons for and the challenges posed by this trend. It also reveals that despite this trend, the lex rei sitae rule nevertheless persists in relation to certain «core» immovable property issues.
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Alihodžić, Jasmina. "THE GENERAL RULE ON CHOICE OF LAW FOR NON-CONTRACTUAL OBLIGATIONS IN LEGISLATION OF EUROPEAN UNION AND BOSNIA AND HERZEGOVINA." Journal Human Research in Rehabilitation 4, no. 1 (January 2014): 24–31. http://dx.doi.org/10.21554/hrr.011405.
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The project of unification of private international law on the level of European Union encompassed bringing of unique choice of law rules, among others, in the area of non-contractual obligations with international element. A communitarian legislator chose a set of flexible choice of law rules that enable satisfaction of the principle of legal certainty together with the establishment of a balance between persons claiming to be liable and sustaining damage. PIL Act that is being enforced in Bosnia and Herzegovina in relation to the subject of this paper alternatively determines the law applicable to non-contractual obligations, according to the law of the place where the harmful act was done or the law of where the consequence occurred, depending on which of these two laws is more favorable to the person sustaining damage. The author of this paper points out the evident discrepancy in the general rules of determination in EU legislation and Bosnia and Herzegovina, and the need to harmonize legislation in this field with the acquis communautaire, arising from the Stabilization and Association Agreement.
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Bobek, Michal. "Why Is It Better to Treat Every Provision of EU Directives as Having Horizontal Direct Effect?" International Journal of Comparative Labour Law and Industrial Relations 39, Issue 2 (June 1, 2023): 211–20. http://dx.doi.org/10.54648/ijcl2023014.
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The provisions of EU directives do not have horizontal direct effect. This contribution explains how that initial choice and statement made by the Court of Justice of the European Union in Marshall came to be gradually undermined by the numerous exceptions to this rule. If viewed together, they make one wonder about the nature of the present-day rule and the exceptions, in particular in areas like employment law or various aspects of prohibition of discrimination. This leads to the advice that could be given to national practitioners, puzzled about the present-day normative impact of directives in horizontal relationships: after the lapse of the transposition period, it is prudent to treat every provision of a EU directive as having horizontal direct effect. Court of Justice of the European Union, Marshall, Normative Impact of Directives, Employment Law, Horizontal Direct Effect
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Campbell, Mat. "Subsidiarity in Private Law?" Edinburgh Law Review 24, no. 1 (January 2020): 1–25. http://dx.doi.org/10.3366/elr.2020.0597.
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This is the first English language paper seriously to examine the meaning of subsidiarity from the perspective of private law, in which it might be used to understand legal rules, or the interaction of different kinds of claim. Since there are so few relevant sources in English, this article casts a wide net for consensus. It offers six propositions about what it means to designate a rule or relationship (between legal regimes, say) as one of subsidiarity. These are formulated by reference, principally, to thinking about subsidiarity outwith private law; and, secondarily, to (i) miscellaneous literature about subsidiarity, (ii) the general French private law literature about subsidiarity, and (iii) what little can be gleaned from relevant unjust enrichment discourse in English. The state of play in that discourse is summarised, before the choice of Roman Catholic social teaching, European Union law, and European human rights law as settings to examine for their conceptions of subsidiarity is explained, and subsidiarity in each of these contexts is sketched out. Succeeding sections then outline each proposition, and clarify how it may be derived from the sources. The paper concludes by reflecting guardedly on the potential of subsidiarity in private law, as a way to model the interrelation of private law claims and doctrines.
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Downes, Noemí, and Helmut Heiss. "Non-Optional Elements in an Optional European Contract Law. Reflections from a Private International Law Perspective." European Review of Private Law 13, Issue 5 (October 1, 2005): 693–712. http://dx.doi.org/10.54648/erpl2005042.
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The EC Commission is considering the enactment of an optional instrument of European Contract Law. From a common market perspective such instrument will only be successful if it covers areas of mandatory law (consumer protection and insurance). A fundamental question relates to the regulatory model that could be used to provide parties with an option to choose the instrument. Legal literature proposes a change of Art. 3 para. 1 of the Rome Convention to the effect that an optional instrument may be chosen as the lex causae of a contract. There are, however, several technical problems making this regulatory model burdensome. This is particularly true with an optional instrument covering areas of mandatory law (?non-optional elements?). A second model would be to implement a rule on direct applicability similar to Art. 1 para. 1 lit. a) CISG. However, since a European optional instrument would cover all types of contracts, it would be very hard if not impossible to find a proper rule of direct applicability for all possible cases. Therefore, an optional instrument should simply be enacted as an EC regulation establishing substantive contract law that is directly applicable in all member states and providing parties with an option. The choice granted in the optional instrument would thus depend on the applicability of the law of an EC member state to the contract. An analysis shows that such a regulatory approach would produce the best results.
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Bender, Philip M. "Limits of Personalization of Default Rules." European Review of Contract Law 16, no. 3 (September 8, 2020): 366–409. http://dx.doi.org/10.1515/ercl-2020-0021.
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AbstractThe ‘personalization of the law,’ based on new technological possibilities such as algorithmic analysis of Big Data, is said to be the wave of the future. Especially default rules seem to be particularly apt for personalization, because they are – at first glance – supposed to mirror what the parties would have wanted. This article aims to unveil the limits of preference-based personalization of default rules. In the first part, I attack default rule personalization on theoretical grounds. I analyze the theoretical underpinnings of default rule personalization, which I describe as ‘empirical subjectivism,’ and I challenge this position with arguments from classical and behavioral law and economics. I thereby develop the opposite explanatory model: ‘normative objectivism.’ The arguments presented also provide new insights of default rule analysis which are valid well beyond the personalization debate. The ‘default rule paradox,’ ‘pushing vs pulling default rules,’ or the analysis of default rules as ‘property rules’ and as ‘rules of civility’ are some examples. In the second part, I attack default rule personalization on constitutional grounds with particular focus on the Constitutions of the United States and Germany, as well as the European Charter of Fundamental Rights. So far, neither default rules nor personalization have received a detailed analysis based on constitutional principles. My article provides this analysis with regard to the principles of freedom and equality. I show how personalization reduces freedom in the private and public sphere, because the so-called choice- or agency-dimension of freedom will be significantly limited. In broader terms, the paternalistic tendencies of personalization will trigger the replacement of the ‘entrepreneur’ and ‘citizen’ by the ‘consumer’ as role-model of societal organization. Economically, this development will be accompanied by a shift from capitalism to what I call ‘micro-socialism.’ With regard to the principle of equality, I analyze how personalization leads to inequality by distinguishing ‘intra-preference-classifications’ and ‘inter-preference-classifications.’ I then present justification problems, especially with regard to discriminations that trigger strict and intermediate scrutiny. Finally, I sketch out how personalization would dissolve the essence of the principle of equality and thereby trigger a shift ‘from contract to contact’ or ‘from association to accumulation,’ which is no less important than the previous societal shift ‘from status to contract’ or ‘from community to association.’ In sum, the article combines different discourses around default rules, personalization, and constitutional law, and thereby provides new insights in each of them.
Dissertations / Theses on the topic "European choice-Of-Law rule"
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Françoise, Marylou. "L'office du juge en conflit de lois : Etude en droit de l'Union européenne." Electronic Thesis or Diss., Lyon, 2021. http://www.theses.fr/2021LYSE3044.
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L’élaboration de règles de conflit de lois uniformes par l’Union européenne accompagne le projet du développement d’un espace européen de justice civile visant à garantir la prévisibilité des litiges. L’uniformisation européenne des règles de conflit de lois ne s’est accompagnée d’aucun régime procédural unifié. L’internationalité du litige et la mise en œuvre de la règle de conflit de source européenne sont ainsi tributaires des ordonnancements procéduraux internes. Si, en droit international privé traditionnel, l’office du juge justifie d’un traitement purement national du fait de sa nature procédurale, l’hétérogénéité des systèmes procéduraux interroge au regard des objectifs poursuivis par l’Union. Plus particulièrement, le caractère optionnel de la règle de conflit généré par un traitement procédural national hétérogène contredit les impératifs d’uniformité et d’effectivité commandés par l’espace judiciaire européen. La création de règles de conflit de lois uniformes ne suffit pas à établir une pratique judiciaire commune.Afin d’assurer le développement d’un espace commun de justice civile, l’uniformisation des règles de conflit de lois doit s’accompagner d’un encadrement procédural général de l’office du juge. La présente étude invite à réfléchir à un modèle d’office européen en conflit de lois, à l’aune de l’européanisation ponctuelle dont fait déjà l’objet la réalisation de la règle de conflit de lois au travers des lois de police et de l’autonomie de la volonté. Il devra être généralisé en systématisant l’application d’office par le juge de la règle de conflit de lois tout en permettant aux parties de se manifester lorsque la règle le permetThe development of uniform choice-of-law rules by the European Union accompanies the project of developing a European area of civil justice the aim of which is guaranteeing the predictability of disputes. The European standardization of choice-of-law rules has not gone along with a unified procedural regime. The internationality of the dispute and the implementation of the conflict rule from European sources consequently depend on internal procedural arrangements. Although the procedural statute of the choice-of-law rule justifies a strictly national treatment because of its procedural nature in traditional private international law, the heterogeneity of the procedural systems raises questions about the objectives pursued by the Union. The optional nature of the choice-of-law rule generated by national procedural treatment, in particular, contradicts the imperatives of uniformity and effectiveness required by the European standard. The creation of uniform conflict-of-law rules does not establish a common judicial practice on its own.To ensure the development of a common area of civil justice, the standardization of choice-of-law rules must go along with a general procedural framework for the procedural statute of the choice-of-law rule. This study suggests us to reflect on a model of a European judicial practice in conflict of laws, in the light of the ad hoc framework that already exists in mandatory provisions and parties’ autonomy. It should be generalized by systematizing an ex officio application of the choice-of-law rule by the judge while allowing the parties to come forward when the rule allows it
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Saumier, Geneviève. "Public policy, mandatory rules and uniform choice-of-law rules in contract : the impact of European harmonization on English private international law." Thesis, University of Cambridge, 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.627212.
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Xu, Mu Chi. "Flexibility versus certainty : a comparative study of choice of law rules regarding contractual liabilities in the European Union and Mainland China." Thesis, University of Macau, 2009. http://umaclib3.umac.mo/record=b2112293.
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Oprea, Elena-Alina. "Droit de l'Union européenne et lois de police." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020028.
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L’interaction du droit de l’Union européenne avec le droit international privé se manifeste avec une acuité particulière en matière de lois de police, continuant et renouvelant les discussions suscitées par celles-ci. La promotion des intérêts de l’Union européenne par ce mécanisme de DIP peut être facilement observée. Il reste que des questions peuvent surgir quant à l’aménagement, dans les systèmes juridiques nationaux, de l’articulation des lois de police de source nationale et européenne. Le transfert de certaines compétences des Etats membres vers l’Union, le rapprochement des législations des Etats membres ou le poids plus important accordé aux raisonnements et aux intérêts européens au moment de la qualification mettent en lumière une catégorie « lois de police » avec des contours nouveaux. La mise en oeuvre des lois de police porte, elle aussi, l’empreinte de l’influence du droit de l’Union européenne. L’intégration des données liées à la réalisation du marché intérieur entraîne une perturbation significative du mécanisme traditionnel des lois de police, accompagnée d’une diminution de l’efficacité de ces normes dans les relations entre les Etats membres. L’objectif de création, au sein de l’Union, d’un espace de liberté, de sécurité et de justice s’est matérialisé par la mise en place de corps de règles européennes de DIP dans diverses matières. La méthode des lois de police en ressort transformée, suite tant à la prise de position directe du législateur européen sur les conditions de son intervention, qu’en raison des évolutions enregistrées par d’autres méthodes concurrentes de droit international privéThe interaction between the European Union law and the private international law is particularly acute in the field of internationally mandatory rules, maintaining and renewing the debate which always accompanied this kind of norms. If the internationally mandatory rules occupy a special place in the European legislation, being an extremely effective tool of European policy, some difficulties arise as to the articulation, in the Member States’ legal systems, of the both national and European different sources of lois de police. The transfer of powers from Member States to the European Union, the harmonization of national legislations and the greater weight given to European reasoning and interests at the time of qualification highlight a new dimension of the internationally mandatory rules concept. Also the implementation of internationally mandatory rules is highly influenced by the European Union Law. The Member States’ obligations concerning the completing of the internal market and the removal of restrictions to changes involve a significant disturbance to this traditional PIL mechanism; a decrease in the effectiveness of internationally mandatory rules in relations between Member States may be observed. The purpose of establishing an area of freedom, security and justice within the European Union was materialized in the establishment of European private international law rules in various fields; the internationally mandatory rules method is transformed as a result of the European legislator direct intervention on his definition and regime, but also as a result of the evolution that affects other concurring private international law methods
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Zielnik-Kołodzińska, Róża. "Statut alimentacyjny w prawie Unii Europejskiej." Doctoral thesis, 2014.
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Celem pracy jest kompleksowa analiza i ocena przepisów Protokołu haskiego o prawie właściwym dla zobowiązań alimentacyjnych z 23 listopada 2007 r. pod kątem jego celów oraz przesłanek jego ratyfikacji przez Unię Europejską. Poprzez ratyfikację protokołu prawodawca unijny pragnął zapewnić jednolite stosowanie regulacji dotyczących statutu alimentacyjnego na jak największym obszarze. Celami protokołu są natomiast zwiększenie pewności prawnej oraz przewidywalności, a tym samym umożliwienie wierzycielom alimentacyjnym działania z pełną wiedzą o ich sytuacji i unikania problemów wynikających z różnorodności krajowych systemów prawnych, oraz sprawiedliwe wyważenie interesów wierzyciela i dłużnika alimentacyjnego poprzez przyjęcie nowej regulacji kolizyjnej. Praca opiera się na tezie, że konstrukcja postanowień protokołu haskiego nie zapewnia pełnej realizacji jego celów.The goal of the dissertation is to scrutinise the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations with regard to its aims and the reasons for its ratification by the European Union. The EU has adopted this new international instrument to ensure consistent application of regulations on the law applicable to maintenance cases in as many states as possible. The objectives of the Hague Protocol are: (i) to improve legal certainty and predictability by creating common provisions on the law applicable to maintenance obligations and, therefore, to enable creditors to act in full knowledge of their situation, without being subject to diverse national systems, and (ii) to create fair balance between the interests of the maintenance creditors and debtors by introducing new conflict rules. The thesis is that the construction of the provisions of the Hague Protocol does not let it achieve its objectives completely.
Books on the topic "European choice-Of-Law rule"
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The private international law of non-contractual obligations according to the Rome-II regulation: A comparative study of the choice of law rules in tort under European, English and German law. Hamburg, Germany: Kovač, 2008.
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Paul, Torremans. Part VI The Law of Property, 30 Immovables. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199678983.003.0030.
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This chapter examines the choice of law rules governing immovables. There are a range of circumstances in which the English courts may have jurisdiction (either under common law or European Union rules) over cases which require the determination of legal issues relating to foreign immovable property. These include cases where the question of title arises incidentally in a personal claim against a defendant, or in the administration of a trust, will or divorce over which the English courts have jurisdiction, or in the context of a claim for trespass over foreign land. This chapter first considers the law of the situs rule before discussing specific issues relating to choice of the law applicable to immovables, focusing in particular on the capacity to take and transfer immovables, formalities of alienation, essential validity of transfers, and contracts.
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Paul, Torremans. Part VI The Law of Property, 34 Insolvency. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199678983.003.0034.
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This chapter examines insolvency in the context of the European Union Regulation on insolvency proceedings (recast). The recast Regulation, which will apply to insolvency proceedings opened after 26 June 2017, deals with public collective insolvency proceedings. It distinguishes between main insolvency proceedings and secondary insolvency proceedings when it comes to international jurisdiction. This chapter begins with a discussion of the main insolvency proceedings jurisdiction and secondary insolvency proceedings jurisdiction, along with checks on jurisdiction and the extent of jurisdiction. It then considers the general choice of law rule contained in the Regulation, along with the recognition of insolvency proceedings. It also looks at issues arising from the insolvency of groups of companies and their members.
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Peari, Sagi. The Foundation of Choice of Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190622305.001.0001.
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This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines, and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. This book reveals that, despite the multiplicity of titles and labels within the myriad choice-of-law rules and practices of the US, Canadian, European, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice, whereby the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. Among other things, this book provides a justification for the nature (and limits) of such popular principles as “party autonomy,” “most significant relationship,” and “closest connection” (Chapters 2 and 3), discusses such topics as the actual operation of “public policy” doctrine in domestic courts (Chapter 4) and the relation between the notion of international human rights and international commercial dealings (Chapter 5), and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age (Chapter 6).
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Hill, Jonathan. 5. Non-contractual obligations. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198732297.003.0005.
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Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.
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Paul, Torremans. Part V Family Law, 25 Children. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199678983.003.0025.
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This chapter examines private international law rules that govern orders concerning children, including orders determining with whom a child shall live or with whom he may have contact. It first considers the rules governing the jurisdiction of the English courts as regards parental responsibility matters, the choice of law rules applied, and the different provisions for the recognition and enforcement of parental responsibility and related orders made elsewhere. In particular, it discusses orders granted in another European Union Member State, except Denmark; orders granted in another Contracting State to the 1996 Hague Protection Convention; and orders granted in Scotland and Northern Ireland. It also analyses the relevant provisions of the Child Abduction and Custody Act 1985 and common law rules before concluding with an overview of other important developments including the 1996 Hague Convention and the Council of Europe Convention on Contact concerning Children.
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Paul, Torremans. Part VI The Law of Property, 36 Succession. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199678983.003.0036.
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This chapter examines the legal regime governing succession to movables and immovables. Once the estate of the deceased has been cleared of debts and all taxes and duties paid, the administrator will distribute the property among those to whom it beneficially belongs. These persons are to be identified by the choice of law rules relating to succession and may vary according to whether the estate consists of movables or immovables and whether the deceased left a will or died intestate. This chapter first considers intestate succession to movables and immovables as well as various questions that arise in the case of wills before discussing the proposed European harmonisation of choice of law rules concerning succession and wills. It also analyses the powers of appointment exercised by a person through his own will, along with issues relating to capacity, formal validity, essential validity, construction and revocation of the power of appointment.
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Paul, Torremans. Part I Introduction, 1 Definition, Nature and Scope of Private International Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199678983.003.0001.
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This chapter provides an overview of the definition, nature, and scope of private international law. It first considers the space and time dimensions of private international law as well as three questions with which private international law is always concerned, namely: jurisdiction of the English court, recognition and enforcement of foreign judgments, and the choice of law. It then explains the meaning of foreign law and the international variety of private international law rules before discussing two possible ways in which the lack of unanimity among the various systems of private international law may be ameliorated: unification of internal laws and unification of the rules of private international law. In particular, it examines the Europeanisation of private international law and the impact of European Convention on Human Rights on private international law. Finally, it addresses the issue of the name or title of the subject in private international law.
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Hill, Jonathan. 6. Domicile, nationality, and habitual residence. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198732297.003.0006.
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The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.
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Hill, Jonathan, and Adeline Chong. International Commercial Disputes. 4th ed. United Kingdom by Hart Publishing Ltd, 2010. http://dx.doi.org/10.5040/9781849468558.
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This is the fourth edition of this highly regarded work on the law of international commercial litigation as practised in the English courts. As such it is primarily concerned with how commercial disputes which have connections with more than one country are dealt with by the English courts. Much of the law which provides the framework for the resolution of such disputes is derived from international instruments, including recent Conventions and Regulations which have significantly re-shaped the law in the European Union. The scope and impact of these European instruments is fully explained and assessed in this new edition. The work is organised in four parts. The first part considers the jurisdiction of the English courts and the recognition and enforcement in England of judgments granted by the courts of other countries. This part of the work, which involves analysis of both the Brussels I Regulation and the so-called traditional rules, includes chapters dealing with jurisdiction in personam and in rem, anti-suit injunctions and provisional measures. The work's second part focuses on the rules which determine whether English law or the law of another country is applicable to a given situation. The part includes a discussion of choice of law in contract and tort, with particular attention being devoted to the recent Rome I and Rome II Regulations. The third part of the work includes three new chapters on international aspects of insolvency (in particular, under the EC Insolvency Regulation) and the final part focuses on an analysis of legal aspects of international commercial arbitration. In particular, this part examines: the powers of the English courts to support or supervise an arbitration; the effect of an arbitration agreement on the jurisdiction of the English courts; the law which governs an arbitration agreement and the parties' dispute; and the recognition and enforcement of foreign arbitration awards.
Book chapters on the topic "European choice-Of-Law rule"
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Baarsma, N. A. "The Proposed European Choice of Law Rules on Divorce." In The Europeanisation of International Family Law, 145–97. The Hague: T.M.C. Asser Press, 2011. http://dx.doi.org/10.1007/978-90-6704-743-2_5.
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Baarsma, N. A. "The Dutch and the European Choice of Law Rules on Divorce Compared." In The Europeanisation of International Family Law, 237–62. The Hague: T.M.C. Asser Press, 2011. http://dx.doi.org/10.1007/978-90-6704-743-2_7.
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Busch, Christoph. "From Algorithmic Transparency to Algorithmic Choice: European Perspectives on Recommender Systems and Platform Regulation." In The International Library of Ethics, Law and Technology, 31–54. Cham: Springer International Publishing, 2023. http://dx.doi.org/10.1007/978-3-031-34804-4_3.
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AbstractAlgorithmic recommendations and rankings have become a key feature of the user experience offered by digital platforms. Recommender systems determine which information and options are prominently presented to users. While there is abundant technical literature on recommender systems, the topic has only recently attracted the attention of the European legislator. This chapter scrutinizes the emerging European regulatory framework for algorithmic rankings and recommendations in the platform economy with a specific focus on online retail platforms. Surveying the new rules for rankings and recommender systems in consumer contract law, unfair commercial practices law, and platform regulation, it identifies shortcomings and inconsistencies and highlights the need for coherence between the different regulatory regimes. The Digital Services Act could change the regulatory trajectory by introducing (albeit hesitantly and incompletely) a new regulatory model that shifts the focus from algorithmic transparency to algorithmic choice. More importantly, a choice-based approach to recommender governance and a market for third-party recommender systems (“RecommenderTech”) could also be facilitated by the new interoperability requirements introduced by the Digital Markets Act.
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Pila, Justine, and Paul L. C. Torremans. "24. Enforcement." In European Intellectual Property Law, 525–44. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198831280.003.0024.
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This chapter looks into preliminary aspect of private international law, focusing on jurisdiction and choice of law. Before enforcement actions can get off the ground we need to know which court will have jurisdiction and which law that court will apply. Jurisdiction is based on the domicile of the defendant as a basic rule, but alternative fora are available. The courts of the place of the harmful event may also have jurisdiction and there are special rules for multiple defendant cases. Validity cases are subject to exclusive jurisdiction rules. In terms of choice of law, the law of the country for which protection is sought takes centre stage when it comes to IP. It is the law applicable to the IP right as such and it also applies to infringement.
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Louise, Merrett. "8 The Territorial Scope of English Employment Legislation." In Employment Contracts and Private International Law. Oxford University Press, 2022. http://dx.doi.org/10.1093/law/9780198860327.003.0008.
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This chapter describes the territorial scope of the main English employment rights. Many of the international employment cases which come before courts or tribunals concern territorial scope. Because employment rights are often either expressly or impliedly overriding mandatory rules, they can be applied without consideration of the normal choice of law rules and often the only issue is whether the claimant falls within the territorial scope of the relevant rule. Moreover, the rules relating to territorial scope are themselves unclear. The chapter begins by looking at claims under the Employment Rights Act 1996, in particular the territorial limits which apply to a claim for unfair dismissal. It then addresses the question of whether the same limits apply to different rights under the Employment Rights Act 1996, and to rights under other employment legislation. Finally, the chapter considers the approach to rights based on European law and/or fundamental rights, particularly post-Brexit.
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Hoffer, Peter Charles. "“I Am to Engage in Conducting a War against a Portion of the American People”." In Seward's Law, 93–122. Cornell University Press, 2023. http://dx.doi.org/10.7591/cornell/9781501767333.003.0006.
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This chapter examines William Henry Seward's work as the Secretary of State. Seward had supported Abraham Lincoln's campaign, swallowing his disappointment at not becoming his party's choice for the White House. Moreover, Seward recognized the challenge of balancing his role as secretary of state with his longtime advocacy of the rule of law. The chapter notes the orations wherein Seward offered the Senate a version of the relational rights doctrine. It then elaborates on Seward taking the task of steering the country through troubled diplomatic waters and replacing some of James Buchanan's ministers to European governments with reliable Union men.
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Hodgson, Roiya. "8. Jurisdiction." In Family Law, 59–63. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198860730.003.0008.
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This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.
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Sendall, Jane, and Roiya Hodgson. "8. Jurisdiction." In Family Law 2020, 59–63. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198855033.003.0008.
Full textAbstract:
This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.
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Đorđević, Slavko. "MERODAVNO PRAVO ZA UGOVOR O FRANŠIZINGU PREMA RIM I UREDBI – KRATAK OSVRT." In XXI vek - vek usluga i uslužnog prava: [Knj. 13], 33–44. University of Kragujevac, Faculty of Law, 2022. http://dx.doi.org/10.46793/xxiv-13.033dj.
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In this paper author analyses the conflict-of-law regime for cross-border franchise contracts in European private international law. The study begins with the autonomous characterisation of franchise contract in the context of application of the Rome I Regulation on the law applicable to contractual obligations. It continues with the analysis of conflict-of-law rules of Rome I Regulation which have to be applied to franchise contract, where the attention is given to the choice of law rule of Art. 3 of Rome I Regulation and to the hard conflict-of law rule for franchise contracts contained in Art. 4 (1) (e) of Rome I Regulation which may be derogated by special escape clause of Art. 4 (3) of Rome I Regulation. Finally, author analyses the issue of application of national imperative provisions which protect the franchisee and overriding mandatory rules which can directly affect the cross-border franchise contracts.
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Ní Chaoimh, Eadaoin. "Conclusion." In The Legislative Priority Rule and the EU Internal Market for Goods, 249—C6.N6. Oxford University PressOxford, 2022. http://dx.doi.org/10.1093/oso/9780192856210.003.0006.
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Abstract Casting the internal product market as a cooperative federal arrangement, this final chapter briefly reviews the role played by the Legislative Priority Rule in supporting this shared legal sphere, as it offers a short summary of previous chapters. While regulatory disputes often arise in the presence of EU product rules, the European Court of Justice can rely on the Rule to resolve these disputes in a manner that ensures respectful coexistence between the Member States and EU, and between national, secondary, and primary law. Key to this equilibrium is the existence of effective regulatory capacity at EU level, which allows the EU legislator to express preferences and distribute power. As the Rule guides the Court in enforcing legislative choice, while respecting the Treaty, Member States can accept the principle of free movement, even if they sometimes disagree with its legal effects. What follows is a Treaty-compliant system to protect and promote the free movement of goods.