Bibliografía (Revista de revistas) - Journal of Private International Law (Vol. 10, Num. 3, 2014)

JOURNAL OF PRIVATE INTERNATIONAL LAW, Contents for Volume 10, Number 3, 2014:

-The Protection of Weaker Parties in the Private International Law of the European Union: A Portrait of Inconsistency and Conceptual Truancy

Giesela Rühl

Abstract: The principle of party autonomy is one of the “cornerstones” of European private international law including the law of international civil procedure. It is deeply embedded in most of the regulations that have been adopted by the European legislator over the last 15 years: the Brussels I Regulation, the Rome I and II Regulations, the Maintenance Regulation as well as the Succession Regulation. However, in enacting the pertaining provisions the European legislator has opted for a sectoral approach focusing on individual legal fields. It has, thereby, lost sight of the regulation of party autonomy in other legal fields and adopted different rules to deal with the same problem. The following article sheds light on the coherence of European private international law taking the protection of weaker parties from the dangers of party autonomy as an example. It analyses which parties are perceived to be weaker in the European Private International Law of contractual and non-contractual obligations, family as well as succession law and sheds light on the various regulatory approaches applied to protect these parties. The article demonstrates that the European legislator does not follow a coherent conceptual path and argues that there is – in general – a need for a more holistic analysis of European private international law that encompasses the legal field and its underlying regulatory problems as such and across the board.

-Governance Aspects of Cross-border EU Competition Actions: Theoretical and Practical Challenges

Mihail Danov and Florian Becker

Abstract: The authors have aimed to produce a theoretical model which considers the choice of governance design of cross-border EU competition law actions. To this end, they have analysed the current litigation pattern (and litigants’ strategies). On this basis, the specific issues which arise in cross-border EU competition law actions have been identified with a view to proposing an appropriate course for any reform in the area. A mix of research methods have been used - in addition to employing traditional library based legal research methods, opinions of legal practitioners from England and Germany and policy-makers from Brussels have been considered. The article demonstrates that, given the diverse nature of the European Union, a new mode of governance should be used by the EU legislator in order to close the EU competition law enforcement gap. The authors suggest that Regulation 1/2003 should incorporate a specifically designated private international law mechanism which promotes inter-jurisdictional regulatory competition in the area of EU competition law dispute resolution, and produces efficient enforcement results in a multi-level system of governance. It has been submitted that some of the specific problems that arise may be best addressed by appropriately drafted private international rules which address inter alia the low mobility of consumers and SMEs.

-Two’s Company, Three’s a Crowd: Jurisdiction, Recognition and Res Judicata in the European Union

Elisa Torralba-Mendiola and Elena Rodríguez-Pineau

Abstract: The relationship between the rules of jurisdiction and the recognition of foreign judgments can be interpreted in light of institutional purposes as in the case of the EU. Thus, in order to foster the circulation of other Member States’ judgments, Regulation 44/2001 offers a mechanism of recognition that is facilitated by Member States sharing the same jurisdiction rules. Therefore, neither the jurisdiction of the court of origin, nor the effects of the judgment may be reviewed by the court of the State where recognition is sought. These fundamentals though may need reconsideration after the CJEU’s introduction of a new EU concept of res judicata in case Gothaer Allgemeine. We will show how this feature undermines some of the Regulation’s underlying principles. Our conclusion is that the completion of the European judicial area in civil matters does not justify a judgment that leaves as many unanswered questions as the Gothaer case.

-Flexible Choice-of-Law Rules: Panacea or Oxymoron?

Lutz-Christian Wolff

Abstract: In the context of private international law “flexibility” is often cited to characterize legal systems, rules and legal acts and to support particular lines of legal arguments. Flexibility is, however, not an acknowledged legal concept and there is no common understanding what “flexibility” really means. More importantly, the doctrinal viability of flexibility normally remains unexplained. Against this background this article explores the significance of flexibility in the choice-of-law context. This article suggests a terminological and doctrinal framework which allows the distinction between rule-intrinsic flexibility, form flexibility and application flexibility. Choice-of-law rules with an open application outcome, ie which provide for rule-intrinsic flexibility, are not rule of law compatible. The same is true for the flexible application of choice-of-law rules, ie an application which is not rule-compliant. Any call for rule-intrinsic flexibility or for application flexibility in the choice-of-law context therefore requires a special justification from the viewpoint of the rule of law doctrine. The article shows that this special justification cannot be derived from any particular nature of private international law and it cannot be based on this area of law’s methodological idiosyncrasies.

-No Fear of Taòlaq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation

Lena-Maria Möller

Abstract: This article reconsiders divorce laws in contemporary Muslim jurisdictions in light of the latest developments in European Union private international law on matters of personal status. In particular, it questions the alleged incompatibility of current Muslim divorce laws and the public policy clause of Article 10 Rome III Regulation which demands the application of the law of the forum whenever the designated law does not grant one of the spouses equal access to divorce on grounds of their sex. The article analyses how recent reforms of Muslim divorce laws have to be understood with a view to equality between the spouses and suggests modes to accommodate these recent divorce law reforms into European jurisdictions. It is argued that in order to allow for a culturally sensitive application of European Union private international law, it is crucial to distinguish, first, between the statutory provisions of different Muslim countries and, second, between the different divorce procedures existing in each individual jurisdiction.

-The Application of Transnational Law (Lex Mercatoria) by Domestic Courts

Markus Petsche

Abstract: This article advocates the application of transnational law (lex mercatoria) by domestic courts. The first part of this article discusses the current legal regime (choice-of-law norms pertaining to arbitration and litigation) under which transnational law can only be applied by arbitral tribunals, not by state courts. The second part of this study argues in favor of granting domestic courts the right to apply transnational law (which includes, by implication, the right of parties to subject their contract to such rules). It highlights the advantages of the application of transnational law (neutrality; substantive suitability) and rebuts traditional critiques of lex mercatoria (notably allegations of vagueness and incompleteness) on the basis of the progressive codification of transnational law and recent methodological advances. It also explains that none of the differences between state courts and arbitral tribunals in terms of their respective nature and functions constitute obstacles to the application of transnational law by domestic courts.

Review Article

Sowing the Seeds of a Future African Union Private International Law: A Review of Private International Law in Commonwealth Africa

Chukwuma Samuel Adesina Okoli

Abstract: This work reviews the monograph titled Private International Law in Commonwealth Africa. The reviewer considers the work to be very significant. The work builds on the previous works of the author (of the monograph) principally aimed at the development of private international law (PIL) in Africa. The reviewer situates the work in a larger context by interpreting the work and previous works of the author (of the monograph) as seeds for the development of a future African Union (AU) PIL. In this regard, the reviewer is able to select four major themes that justify the significance of the work in relation to a future AU PIL. These themes concern limitations on previous works on African PIL, the significance of PIL to AU economic integration, the impact of human rights and constitutional law on PIL in Africa, and a plea for cooperation as it relates to a future AU PIL. However, the reviewer exposes the scepticism as to a future AU PIL, and concludes that despite this scepticism, the work is significant enough to sow the seeds of a possible AU PIL.

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