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The Faculty of Law at the University of Rijeka will be hosting its 2024 Doctoral Conference RIDOC on 13 December 2024. This event is designed for doctoral candidates who want to present and evaluate their preliminary research findings in front of academics, practicing lawyers, and engage in discussions with peers on an international scale. Eligible […]

In a judgment of 23 May 2024, the French supreme court for private and criminal matters (Cour de cassation) ruled that French courts have jurisdiction to entertain a paternity claim against French actor Alain Delon. The Court of Appeal of Orleans had declined jurisdiction on the ground that the plaintiff had brought proceedings in France […]

 

 

It is a great pleasure to review the book titled Treatment of Foreign Law in Asia, edited by Kazuaki Nishioka. This volume contains 17 chapters, including an introduction and conclusion, spanning 298 pages (excluding the series editor’s preface, table of contents, bibliography and index). The book examines 15 Asian jurisdictions, representing a variety of legal systems, including civil law (China, Taiwan, Japan, South Korea, Vietnam, Cambodia, Indonesia, and Thailand), common law (Hong Kong, Singapore, Malaysia, Myanmar, and India), and mixed jurisdictions (Philippines and Sri Lanka).

Currently, no international instrument comprehensively addresses the treatment of foreign law in cross-border matters. The central theme of this book is how 15 Asian states balance the demands of cost-effectiveness, time efficiency, and fairness in the ascertainment of foreign law, how their approaches can be improved, and how regional, quasi-regional, or international databases and institutions can facilitate the ascertainment of Asian and other foreign laws. The chapters explore four key themes: (A) the status of choice of law rules, (B) the handling of foreign law before judicial authorities, (C) the treatment of foreign law by administrative or non-judicial authorities and alternative dispute resolution service providers, and (D) access to local and foreign law. However, this review primarily focuses on the theme of proving foreign law before judicial authorities in Asia, as this is fundamental to private international law.

I have never been disappointed by reading Asian books on private international law. I have previously reviewed five other Asian books on this topic—three devoted to the recognition and enforcement of foreign judgments, one on direct/adjudicatory jurisdiction,  and one on choice of law in international commercial contracts in Indonesia. This current review marks the fourth time I am reviewing an Asian book on private international law, and the sixth Asian book on the subject I have reviewed overall.

I once regarded the European Union as the superpower of private international law, wielding more influence than the U.S. or any other global power, largely due to its dominant role in shaping the Hague instruments and other global conflict of laws matters. However, it is now fair to say that Asia is emerging as a significant player in private international law, though it is not yet as united or formidable as the European Union. After reading this stimulating book, I feel inspired to write something related to the African continent (See also Richard F. Oppong, ‘Foreign Law in Commonwealth African Courts’ in Yuko Nishitani (ed), Treatment of Foreign Law: Dynamics towards Convergence? (Springer, 2017) 601–611.)

Professor Richard Fentiman rightly observes that the application of foreign law is the crux of conflict of laws. This is particularly true in Asia, where the diversity of legal systems regularly triggers conflict of laws scenarios. Fentiman also rightly notes that foreign law is only likely to be pleaded in England under three conditions: when English law offers no equivalent claim or defence; when foreign law is significantly more advantageous; and when pleading foreign law is mandatory, such as in cases involving foreign immovable property where the lex situs applies. While this statement is made in the context of English law, it is generally applicable to the proof of foreign law in Asia.

In civil law jurisdictions in Asia, foreign law is treated as “law,” similar to domestic law (with the exception of Thailand, where foreign law is treated as a question of fact). Courts in civil law countries, except Thailand, operate under the presumption that they are familiar with all laws, including foreign law (iura novit curia). Judges are obliged to apply relevant foreign law, regardless of whether it has been raised by the parties. In contrast, common law judges treat foreign law as a matter of fact, to be proven by the parties through expert testimony. If neither party pleads foreign law, judges are not obligated to raise it. If no evidence of foreign law is presented, the judge may assume that the foreign law is identical to the domestic law.

The common law approach in Asia can be costly and time-consuming due to the need for expert evidence, which not all parties can afford, particularly in cross-border family matters. This method may result in judgments that are a capricious mix of foreign and domestic law, failing to accurately reflect either. However, where parties can afford experts, proving foreign law in this manner can be more efficient, as the parties have a vested interest in the proceedings.

There is a gradual shift in common law towards allowing judges to take a more active role in ascertaining foreign law, provided it is pleaded. In a recent United Kingdom Supreme Court case in FS Cairo (Nile Plaza) LLC v Lady Brownlie, Lord Leggatt (with whom the other members of the Court all agreed) at paragraph 148 held that:

“[T]he old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law.”

In a more recent case from the Cayman Islands (Gol Linhas Aereas SA v MatlinPatterson Global Opportunities Partners (Cayman) II LP), the United Kingdom Privy Council at paragraphs 46 – 47 approved the Cayman Court of Appeal’s approach of directly considering the text of foreign legislation and case law to ascertain the content of the applicable foreign law. Additionally, in a recent decision, the English Court of Appeal suggested that Brownlie (supra) did not limit the sources of evidence a court may rely on when determining the content of foreign law ( Soriano v Forensic News LLC [2021] EWCA Civ 1952 [64]).

The challenge in civil law countries in Asia is that the idealistic approach of automatically applying foreign law can be difficult in practice, especially when judges lack access to foreign legal resources or are unfamiliar with the relevant language or legal culture. Consequently, countries like Cambodia, Vietnam, and China have adopted a hybrid approach, treating foreign law as both law and fact, with judges and legal representatives cooperating to ascertain it.

Where foreign law cannot be ascertained, both common law and civil law countries in Asia often apply the lex fori (the law of the forum). However, various civil law authors in the book explore alternative methods, such as dismissal of the case, reliance on general principles of law, or principles of closest connection. Resorting to lex fori is ultimately more cost-effective, efficient, and pragmatic, making it a sensible fallback.

In conclusion, the common law approach may be more suitable for purely commercial disputes, where parties can afford foreign experts. Meanwhile, the civil law approach is better suited to non-commercial matters such as consumer or family cases, where the parties may not have the resources to hire experts. Judges in common law systems should not be barred from investigating foreign law if it is accessible and familiar to them. This is a concept that could be further developed in future academic work, judicial reforms, or international legislative instruments.

Nishioka’s edited book sparks renewed debate on the need for international, regional, and domestic instruments and judicial reforms concerning the treatment of foreign law in cross-border matters. It is a thought-provoking and highly recommended read.

Csongor István Nagy (University of Galway, Ireland; HUN-REN Centre for Social Sciences, Institute for Legal Studies, Hungary) authored a book titled Private International Law: A Hungarian Perspective, published by Brill in its Law in Eastern Europe series. The book is accessible through the publisher’s website and on SSRN. The abstract provided by the author on […]

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles:

 

Th. Klink: Der Commercial Court nach dem Justizstandort-Stärkungsgesetz – ein Modellprojekt für grenzüberschreitende Gerichtsverfahren

The Legal Venue Strengthening Act allows the German states to establish Commercial Courts at the higher regional courts as of 2025. The project aims to make the jurisdiction of state courts more attractive, especially for cross-border disputes, by implementing elements of arbitration. In a contract or after the dispute has arisen, the parties can agree on the jurisdiction of the Commercial Court as a special court of first instance in cases with a value of EUR 500,000.– or more, provided that a specific area of law is involved (B2B cases, M&A cases and cases of D&O liability). For the first time, the entire civil procedure from complaint to judgment can be conducted in English. Commercial Chambers may be established at the regional courts, allowing for similar specialization regardless of the amount in dispute. The article explains the background to the legislative reform and analyzes the procedural framework for jurisdiction and commencement of proceedings, with a focus on cross-border litigation.

 

J. F. Hoffmann: New developments regarding the relationship between main and secondary insolvency proceedings in European insolvency law?

The ECJ had to answer fundamental questions concerning the relationship between main and secondary proceedings under the European Insolvency Regulation. Firstly, the ECJ affirms that the lex fori concursus of the main proceedings applies to liabilities of the estate that arise between the opening of the main proceedings and that of the secondary proceedings. Reading between the lines, it can be inferred from the decision that the secondary estate is also liable for these preferential debts of the main proceedings. However, a number of details remain vague and in the future, the individual categories of liabilities of the estate should be more clearly distinguished: The secondary estate should only have subsidiary liability for the costs of the main proceedings. Genuine privileges of the main proceedings that are not related to the administration of the estate should not be able to be invoked in the secondary proceedings, just as, conversely, the secondary proceedings should be able to recognize their own privileges in accordance with the lex fori concursus secundarii.

Secondly, the ECJ states largely undisputed that the secondary estate is only constituted at the time the secondary proceedings are opened. The main administrator may transfer assets from the state of (future) secondary proceedings to the state of main proceedings prior to the opening of secondary proceedings. Although this may constitute abuse of rights under certain circumstances, the ECJ does not specify this further. The ECJ also takes a position in favor of avoidability on the highly controversial question of whether the secondary administrator can take action against the main administrator by way of insolvency avoidance. However, no further clarification is provided. The question is ultimately left entirely to the national regulations on insolvency avoidance, which is not a convincing solution. In substance, the powers of the main administrator to deal with assets located in other Member States should be limited to what is necessary for the proper conduct of the insolvency proceedings as a whole (ordinary course of business).

 

B. Kasolowsky/C. Wendler: Sanctioned Russian parties breaching the arbitration agreement: an extra-territorial declaratory relief in aid of arbitration

In a landmark decision on 1 June 2023, the Berlin Higher Regional Court upheld the validity of an arbitration agreement under Section 1032(2) of the German Code of Civil Procedure in a novel context. The court used this provision to bind a sanctioned Russian entity to an arbitration agreement, which it had breached by initiating proceedings in Russian state courts. This decision also sheds light on how German courts deal with the practical challenges of serving court documents on Russian parties. Notably, the court ruled that Russian parties could be served by public notice in German courts, as the Russian authorities currently refuse to accept service of documents under the Hague Service Convention.

 

B. Steinbrück: Federal Court of Justice rules foreign judgments refusing to set aside an award cannot bind German courts

Does a foreign decision upholding an arbitral award on challenge have binding effect in enforcement proceedings in the German courts? If a foreign award has already been challenged unsuccessfully at the arbitral tribunal’s seat, a full re-hearing of the same grounds of challenge can seem inefficient; however, foreign decisions vary widely in their quality, so a blanket binding effect equally seems inappropriate. The Federal Court of Justice has nonetheless now ruled out any binding effect of foreign decisions rejecting challenge proceedings. The Federal Court of Justice also decided that, even if the court at the seat of the arbitration has rejected a challenge, it is open to the losing party to proactively apply to the German courts for a declaration that the foreign award cannot be enforced in Germany.

On the facts of the present case, this outcome appears justified, since the arbitral award at stake in the decision itself appears to have been obtained in highly dubious circumstances and suffered from serious irregularity. Nonetheless, it is less clear why a foreign decision rejecting the challenge to an arbitral award should not be taken into account in German enforcement proceedings if the foreign challenge proceedings are comparable to German litigation standards. As such, a more nuanced approach that is able to reflect that foreign decisions on arbitral awards vary widely would have been preferable.

 

Ch. Reibetanz: The ‘purely domestic case’ under Art. 3 (3) Rome I Regulation

In its first decision concerning Article 3 (3) Rome I Regulation, the German Federal Court of Justice has set out guidelines as to when “all other elements relevant to the situation […] are located in a country other than the country whose law has been chosen”. The provision constitutes a relevant restriction of the principle of party autonomy in international contract law. The case concerns a choice-of-law clause in a tenancy agreement to which the Bulgarian embassy was a party. The Federal Court decided that the case is “purely domestic”. The author argues that the decision is highly questionable from a dogmatic point of view. Instead of applying Article 3 (3) Rom I Regulation, the Court should have at least referred the question to the ECJ. The protection of the tenant could have been equally safeguarded by means of Article 11 (5) Rome I Regulation.

 

J. P. Schmidt: The European rules on the service of documents and national time limits for appeals – the translation regime must not be hollowed out

The European rules on the service of documents allow for the service without translation. However, the addressee may refuse to accept the document to be served if it is not written in either a language which the addressee understands or the official language of the Member State addressed. In order to safeguard this protection, but also to promote the efficiency and speed of cross-border judicial proceedings, the CJEU ruled that the period for Coding an Appeal under national law may not start to run at the same time as the period for refusing acceptance (Judgement of 7.7.2022 – Rs. C-7/21, LKW Walter). The CJEU’s decision deserves support, even though it raises a number of follow-up questions and highlights the practical downsides of the flexible translation regime.

 

F. Heindler: Wirksame Eheschließung zweier afghanischer Staatsbürger als Vorfrage bei Behandlung eines Antrags auf einvernehmliche Scheidung durch österreichische Gerichte

The Rome III Regulation on the law applicable to divorce and legal separation excludes the existence, validity or recognition of a marriage from its scope (“preliminary question”). Austrian courts dealing with divorce applications from spouses in a cross-border situation apply national Private International Law provisions to determine if the marriage validly exists. This annotation comments on a decision concerning two Afghan citizens who married in Afghanistan in 1996. According to section 16(2) of the Austrian Private International Law Act, the form of a marriage celebration abroad is subject to the personal status law of each of the betrothed, sufficient is, however, compliance with the provisions on form of the place of celebration. According to section 17(1) of the Austrian Private International Law Act, the prerequisites for entry into marriage are subject to the personal status law of each of the betrothed. In both cases, a subsequent change in the prerequisites determinative for the reference to a particular legal order has no effects upon already completed facts (section 7 of the Austrian Private International Law Act). Personal status law in the case at hand was determined according to the Afghan citizenship. The question decided by the Austrian Supreme Court was a matter of form of marriage celebration, i.e. whether in 1996 Afghanistan (the exact locus is not reported in the decition) the marriage had to be registered. The Austrian Supreme Court stated that a registration requirement postulated in the Afghan Civil Code of 1977, but widely ignored in practice in 1996, could not render a marriage celebration ineffective. The Supreme Court recalled that foreign law shall be applied as it would be in its original jurisdiction (section 3 of the Austrian Private International Law Act).

 

G. Zou/Z. Wang: The Refinement of Rules on the Ascertainment of Foreign Laws in China

The ascertainment of foreign law has always been a major challenge that has long constrained the quality and effectiveness of foreign-related civil or commercial trials by Chinese people’s courts. The judicial interpretation (II) concerning the application of Chinese PIL-Act newly promulgated in November 2023 by the Supreme People’s Court of China greatly refines many aspects in ascertaining foreign laws including the responsibility, means, relevant procedures, criteria, the burden of the expenses, etc. It is expected but remains to be seen whether the people’s courts as well as Chinese and foreign parties could benefit from such refinement.

 

D. Sprick: Building a “Foreign-Related Rule of Law”: China’s State Immunity Law

With its new Law on Foreign State Immunity, the People’s Republic of China abandons its long-standing notion of absolute state immunity and introduces a paradigmatic shift towards the internationally dominant restrictive approach of state immunity. Furthermore, this law needs to be understood as a building block of China’s ambitions for a stronger impact of its legal system around the globe within the agenda of a “foreign-related rule of law”. This paper will therefore discuss this new avenue for the resolution of commercial disputes between private parties and states before Chinese courts, which is certainly also aimed at providing enhanced protection for Chinese businesses considering their legal risks stemming out of China’s going global strategy and especially its Belt and Road Initiative (BRI). Furthermore, China’s new Law on Foreign State Immunity will be analysed within the specific setting of China’s approach toward the rule of law and its limited legal certainty as well as its political functionality understanding of Chinese courts.

 

G. Zou/Z. Wang: The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Act of the People’s Republic of China on the Law Applicable to Civil Relations with Foreign Elements (II)

 

E. Jayme †: On the dual applicability of German law of succession and Cuban matrimonial property law

 

On Tuesday, September 10, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 2:00 pm – 3:30 pm (CEST). Nieve Rubaja (University of Buenos Aires) will speak, in English, about the topic

International Surrogacy Agreements From the Latin American Perspective. An Overview.

The media, judicial cases and administrative constraints show that surrogacy is a reality in Latin American countries. Regulation on this subject matter has become a need in order to protect the human rights involved, especially the rights of the children born. Over the last decades, legal systems in Latin America have been transversely affected by the emergence and progressivity of human rights. In addition, there are more than 20 countries in the region and each of them has its own historical, social and cultural shades; therefore, human rights have been a key factor for the unification of some conceptions in the region. This imprint impacts on surrogacy regulation (and bills) both for domestic and for cross-border cases. The few countries which provide rules regarding cross-border surrogacy cases choose a recognition approach. According to this, the legal parentage established abroad must be recognised in the forum if it is compatible with their international public policy, taking into account the best interest of the child. Among Latin American countries Argentina, Brazil, Mexico and El Salvador have designated representatives to participate in the Working Group on the Parentage/Surrogacy Project of the Hague Conference of Private International Law, which brings an opportunity to include Latin American voices. This meeting aims at providing an overview of the comparative analysis carried out considering the distinctive features of the region.

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

 

RIDOC 2024: Rijeka Doctoral Conference has been announced by the RIDOC2024-Call.

Interested doctoral students and candidates in law or law-related areas may apply by sending the abstract accompanied by their CV to ridoc@pravri.uniri.hr.

Important dates:
20 September 2024 – application deadline
15 October 2024 – information on acceptance by the Programme Committee
13 December 2024 – conference presentation

RIDOC conferences have been organised by the University of Rijeka, Faculty of Law since 2016, regularly featuring sessions on private international law.

Matthias Lehmann (University of Vienna and Radboud University Nijmegen) has made available on SSRN the article on Digital Assets in The Conflict of Laws: A Comparative Search for the Ideal Rule that is being published on Singapore Journal of Legal Studies 2024. The abstract of the article reads as follows: Which law applies to private […]

By Csongor István Nagy, Professor of Law at the University of Galway, Ireland, and at the University of Szeged, Hungary, and research professor at the HUN-REN Center for Social Sciences, Hungary.

The overwhelming majority of the international community condemned Russia’s war against Ukraine as a gross violation of international law and several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond that and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international law concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU authorized the use of net profits from the frozen assets but not the assets themselves to support Ukraine.

In my paper forthcoming in the University of Pennsylvania Journal of International Law I argue that this question should be approached from the perspective of the public law-private law divide and international investment law may open the door to the use of a substantial part of the frozen assets for the purpose of war reparations. The pre-print version is available at SSRN.

 

Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. Investment treaties, including the Russia-Ukraine BIT (RUBIT), “commercialize” acta jure imperii. They convert public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that if Ukrainian claims for war damages can be submitted to investment arbitration and incorporated into an arbitral award, they may have a solid legal basis for enforcement against Russian assets. A good part of these assets can be used for this purpose. Although “non-commercial” assets, such as the property of diplomatic missions, military assets, cultural property, items displayed at an exhibition and, most importantly, the property of the central bank are immune from enforcement due to sovereign immunity, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can be used to satisfy investment awards.

 

The key issue of the RUBIT’s applicability is territorial scope. Although, at first, the idea that Ukrainians may be awarded compensation on the basis of the RUBIT may raise eyebrows, in the Crimea cases arbitral tribunals just did that. They consistently applied the RUBIT to Russian measures and treated Crimea (strictly for the purpose of the BIT!) as the territory of Russia on account of de facto control and legal incorporation. The foregoing principles should be valid also outside Crimea in cases where Russia occupies a territory and/or unilaterally incorporates (annexes) it. And if these territories can be treated as a territory for which Russia bears responsibility under international law, Ukrainians may be able to rely on this responsibility.

 

The Crimea arbitral awards’ notion of territorial scope is not unprecedented in international law at all. For instance, in Loizidou v. Turkey and in Cyprus v Turkey, the European Court of Human Rights applied the European Convention on Human Rights to Turkey by reason of its occupation of Northern Cyprus. In Al-Skeini v. United Kingdom, it found the Convention applicable to the UK’s operations in Iraq on account of the occupation of the country.

 

Although the RUBIT was recently terminated by Ukraine, it remains in force until January 27, 2025, and has a “continuing effects” clause in Article 14(3), which sustains investment claims for ten years after termination.

 

 

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)

The second issue of the Revue Critique de droit international privé of 2024 was released a few weeks back. It contains a rich thematic dossier of seven articles and several case notes.

Under the direction of Prof. Sabine Corneloup (Université Paris-Panthéon-Assas), the doctrinal section of this issue is entirely devoted to an in-depth study of the latest French immigration law (Loi n° 2024-42 du 26 janvier 2024 pour contrôler l’immigration, améliorer l’intégration). In line with the Revue Critique’s recent policy, this doctrinal part has been made available in English on the editor’s website (for registered users and institutions). Against the backdrop of tightening migration controls at the global scale, this Act radically shifts administrative, procedural, and substantial aspects of the status of aliens in France.

The dossier opens up with Prof. Hans van Loon’s (University of Edinburgh, former Secretary General of the HCCH) call for La nécessité d’un cadre mondial de coopération pour une réglementation durable de la migration de travailleurs (The need for a cooperative global framework for a sustainable regulation of labor migration). Its abstract reads as follows:

“Sustainable regulation of labor migration cannot be based exclusively on unilateral initiatives by a given country individually, but requires the development of a worldwide framework for cooperation between states, which is sorely lacking at present. Both realistic and highly ambitious, the author proposes a – fully drafted – framework convention aimed at strengthening practical cooperation at global level for a particular type of crossborder displacement of persons for work: temporary and circular migration. This framework could subsequently be extended to other types of migration.”

Adopting the same critical ambition, the subsequent articles further engage with the French bill by following the order of its chapters.

In this vein, Prof. Fabienne Jault-Seseke (Université Paris-Saclay, UVSQ) first assesses the law’s provisions relating to L’accès au séjour : l’objectif d’intégration au service d’un discours brouillé (Access to residency: the objective of integration serving a blurred discourse). It is introduced as follows:

“Fabienne Jault-Seseke highlights the restriction of the conditions for obtaining residence permits, both for new arrivals and for foreign citizens applying for long-term permits. With regard to one of the Act’s flagship measures – the regularization of undocumented workers in short-staffed occupations – the author regrets that the reform’s contribution is ultimately very limited, and that its scope has been further reduced by an administrative order, casting doubt on the legislator’s real desire to promote work as a factor of integration.”

Then, Prof. Thibaut Fleury Graff (Université Paris-Panthéon-Assas) severely judges L’éloignement des étrangers dans la loi du 26 janvier 2024 : régression des protections, extension des rétentions (The expulsion of foreign nationals under the January 26, 2024 law: regression of protections, extension of detentions). His contribution’s abstract reads as follows:

“The author shows the regression in protection resulting from the removal of legislative obstacles to expulsion. In place of the general, objective protection against expulsion enjoyed by certain categories of foreign nationals under the law, the reform substitutes a case-by-case review, by the administrative authority and the administrative judge, of the rights and freedoms constitutionally and conventionally recognized for foreign nationals. This casuistic approach to deportation is accompanied by new provisions facilitating measures that deprive or restrict freedom (administrative detention, house arrest, bans), the duration of which has also been extended.”

In the fourth article, Prof. Natalie Joubert (Université de Bourgogne) takes a hard look on La loi Immigration du 26 janvier 2024 et les droits sociaux (The immigration law of January 26, 2024 and social rights). Her analysis is presented as follows:

“Natalie Joubert highlights the issue of ‘disguised national preference’, which was to have taken the form of a condition of length of legal residence in France – ultimately censured by the Constitutional Council – in historical context, before showing that this condition was not actually censured in itself, but only for its excessive duration. In terms of taking into account the vulnerability of foreign nationals, the author contrasts an advance in protection of access to housing, with a regression in the protection of young adults and asylum seekers.”

The Act also implements Une réforme structurelle du droit d’asile (A structural reform of asylum law), which is precisely the subject of Prof. Sabine Corneloup’s study. Its abstract reads as follows:

“In the field of asylum law, the most noteworthy contribution has been the structural reform of both the administrative and judicial phases of the asylum procedure. Sabine Corneloup analyzes the territorialization of the two phases, which raises considerable material and human stakes, and shows that the introduction of the principle of a single judge before the National Asylum Court, which removes the United Nations High Commissioner from the procedure, can only give rise to the most serious reservations. Whether or not the collegiate system is maintained in the future will depend exclusively on the policy of the President of the Court. With regard to the status of individuals, the author shows that, through the new cases of administrative detention and house arrest of asylum seekers, the Act affects the very legal grounds for such measures.”

The sixth contribution is authored by Stéphanie Gargoullaud (Cour d’appel de Paris) and tackles the procedural aspects of La loi Immigration du 26 janvier 2024 et les règles du contentieux administratif et judiciaire (The Immigration Act of January 26, 2024 and the rules of administrative and judicial litigation). The following abstract was provided:

“Stéphanie Gargoullaud analyzes the law’s main contributions to both judicial and administrative processes. The legislator’s stated aim of simplifying the rules 4 meets a strong expectation on the part of those concerned, given that the French system had become too complex. While simplification is perceptible in the case of administrative recourse, where the number of procedures has been reduced to three, it is hardly visible in the numerous provisions reforming court process concerning administrative detention and waiting zones.”

Last but not least, Prof. Jules Lepoutre (Université Côte d’Azur) discusses La nationalité dans la loi du 26 janvier 2024 : une apparition éphémère, des questions persistantes (Nationality in the law of January 26, 2024: a fleeting appearance, some enduring interrogations). The abstract reads as follows:

“Nationality and citizenship law was at the heart of parliamentary debates, even though it did not feature in the initial bill and occupies a rather anecdotal place in the enacted text. The provisions introduced by the Senators concerning the restriction of ‘droit du sol’, the extension of forfeiture of nationality, the raising of language requirements for naturalization, etc. did not pass constitutional scrutiny. Jules Lepoutre shows that both the policy pursued by the legislator and the control exercised by the constitutional court reveal much about contemporary issues relating to belonging: the presence of reiterative ideologies, and the strong interconnexion between nationality and citizenship on the one hand and immigration and integration on the other.”

What’s more, the international audience will undoubtedly be interested in the Bibliographic section of the issue, which has always been a remarkable feature of the Revue critique. Under the direction of Dr. Elie Lenglart (Université Université de Lille) and Dr. Sandrine Brachotte (UC Louvain), this section has diversified to include major French-language and non-French-language publications in both private international law and international arbitration, as well as contemporary works in global law. Notably, some reviews are authored in English and will therefore benefit readers beyond the borders of the francophonie.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Dear Friends and Colleagues,

Kindly allow us to invite you to two events that mark the completion of a research project carried out at the University of Bonn in respect to the Washington Principles on Nazi-Confiscated Art: The elaboration of a “Restatement of Restitution Rules for Nazi-Confiscated Art“. The formal Closing Event of the Project (proceedings in German language) will take place at the University of Bonn on 4 September 2024 (7:00 p.m.). An international presentation will follow and take place at New York University (NYU) on 16 September 2024 (6:00-8:30 p.m.), organised by the  Center for Transnational Litigation, Arbitration and Commercial Law.

 

Five years ago, fundamental research started in Bonn to develop a “Restatement of Restitution Rules for Nazi-Confiscated Art” (RRR). This research was funded by the Federal Government Commissioner for Culture and the Media (“BKM”). Since then, around 1,300 cases from six jurisdictions – Germany, Austria, the Netherlands, France, the United Kingdom and Switzerland – have been recorded and their normative content comparatively scrutinized: Which „tipping points“ for evaluation recur? How have these points been handled in each case and why? Which arguments are systematically convincing in relation to others (“grammar of reasons”), which are less so? What are the principles that guide the decision-making process? Which procedural building blocks from current practice are convincing according to general procedural theory (“best practices”), which less so? The fundamental experience to be taken from the project is one that has always been described in comparative legal studies: only a comparison with others enables a true understanding of one’s own.

Our comparative work has resulted in a project text of around 1,100 pages: Eight articles – Art. 1 RRR to Art. 8 RRR – outline the central recurring issues in formulated rules, which are intended to reflect the normative essence of the issues. Some rules are rather concise, others concern a highly complex set of issues and therefore contain many paragraphs. The text of each rule is followed by a commentary explaining how the proposed rule was generated from practice, which tendencies in practice support the rule and which other tendencies appear to run counter to it. Country reports subsequently analyze the respective practice of the individual jurisdictions, always starting with an abstract overview of the respective issue. The case material referred to is then systematically organized in abstract summaries.

At our Talk at the New York University, we would like to present to you the results of our project. We feel greatly privileged that renowned professors and supporters of our project will deliver their comments on the RRR. The same holds true for the accompanying Closing Event at the University of Bonn on 4 September (in German). Following this event, we will invite you to a small reception.

If you are interested, please register: For the Talk in New York here, for the Closing Event in Bonn with sekretariat.weller@jura.uni-bonn.de. Regarding further information, please consult our institute’s homepage or refer to the atttached pdf Programme (NYU;Bonn). We would be very pleased to see you.

As already noted on this blog, a PAX Moot Court Half-Day Conference was held on 26 April 2024, organized by the Centre for Private International Law at the School of Law of the University of Aberdeen, in cooperation with the Faculty of Law of the University of Ljubljana. The conference titled Private International Law in […]

The third issue of the Lloyd’s Maritime and Commercial Law Quarterly was recently released. It contains the following article, case note and book reviews:

Adrian Briggs, “The Hague 2019 Convention”

The Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2019 will come into force for the United Kingdom on 1 July 2025. It will represent the principal means for the mutual recognition of judgments between the United Kingdom and the European Union (and any other states adopting it), and it is for this reason timely to examine the instrument which will replace, but certainly not replicate, Chapter III of the Brussels I Regulation. In discussing the structure and detail of the Convention, it is noticeable how far it falls short of the pre-existing regime.

Pau S Davies and Katherine Ratcliffe, “Anti-Arbitration Injunctions and Stays to Arbitration”

Andrew Tettenborn, “Book Review – The 2019 Hague Judgments Convention”

Adrian Briggs, “Book Review – Governing aw Risks in International Business Transactions”

 

Emory University School of Law seeks applications from outstanding tenured scholars for a Distinguished Professorship in Civil Litigation. This professorship recognizes distinguished achievement in scholarship and teaching of disciplines related to civil litigation, including civil procedure, complex litigation, evidence, conflict of laws, and others focused on civil litigation. Candidates must have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory. For candidates meeting the law school’s standards for scholarly excellence and the demonstrated ability to teach civil litigation courses, the interest in teaching first-year Civil Procedure will be an additional positive factor.

Candidates must complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Appointments Committee: Professor Joanna Shepherd, at law.faculty.appointments@emory.edu.  Applications will be considered on a rolling basis.

As already noted on this blog, Xandra Kramer (Erasmus University Rotterdam and Utrecht University) and Laura Carballo Piñeiro (University of Vigo) edited Research Methods in Private International Law – A Handbook on Regulation, Research and Teaching. An online book launch is scheduled for 10 September 2024, from 10am to 12pm CEST. During this event, several […]

A major reform of the CJEU was published at the OJEU last week: Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union, OJ L, 2024/2019, 12.8.2024. In particular, preliminary rulings will be shared between the Court of Justice and the General Court (insertion of Article 50 ter), a first since the creation of the preliminary rulings procedure. The same issue of the Official Journal publishes new version of the Rules of Procedure of both Courts and associated documents.

 The second issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Sara Tonolo, Professor at the University of Padova, Il contributo degli studiosi italiani ai corsi de l’Aja di diritto internazionale privato (1973-2023) [The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1973-2023); in Italian]

The Private International Law Courses taught by Italian scholars within the Hague Academy have undergone an interesting evolution that deserves consideration on the occasion of the Academy’s Centennial Anniversary, especially regarding the period between 1973 and 2023. Alongside features commons to the courses of the initial period, such as the approach to the study of private international law, outlined by Pasquale Stanislao Mancini, and the comparative method, there are however distinctive and noteworthy features in the courses offered between 1973 and 2023. Among the topics analysed in the Italian Courses during the considered period, the recognition of the substantive effectiveness of judgments through private international law rules is particularly noteworthy both for its influence on the national codification of private international law, and for its relevance in addressing coordination issues arising from the communitarization of private international law. This topic is particularly relevant concerning the interrelation of private international law with other areas of international law, such as international protection of human rights. Given the circular relationship between international protection of human rights and private international law, coordination needs to be established within a debate that is becoming increasingly complex among private international law scholars, thanks also to the role of Italian scholars within the Hague Academy.

Giacomo Biagioni, Associate Professor at the University of Cagliari, Dichiarazione ONU sui diritti dei contadini e diritto internazionale privato dell’Unione europea [The UN Declaration on the Rights of Peasants and EU Private International Law; in Italian]

On 17 December 2018 the United Nations General Assembly adopted by a majority the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, stressing the importance of agricultural production and recognizing individual and collective rights granted to people living and working in rural areas. The paper aims at assessing the possible impact of the principles enshrined in the Declaration on the system of private international law sources, moving from the general assumption that UN declaration of principles may contribute to the interpretation of domestic law. As peasants and other workers in rural areas can qualify, under the 2018 Declaration, as weaker parties, the paper attempts to clarify to what extent solutions enacted in EU private international law for other categories of weaker parties (such as employees or consumers) with regard to conflict-of-laws and to jurisdictional competence in contractual matters may be extendable to peasants. However, the general approach of EU instruments concerning judicial cooperation in civil matters does not seem to be especially open to receiving the instances of protection of the rights of categories of weaker parties, which are not expressly mentioned in those instruments. Accordingly, as the law now stands, only recourse to general clauses (fraude à la loi, public policy, overriding mandatory rules) may lead to give some consideration to the special position of peasants and other workers in rural areas and to adapt private international law rules to the protection of their fundamental rights.

This issue also comprises the following comments:

Anna Liebman, Research Fellow at the University of Milan, Il rinvio ai criteri della convenzione di Bruxelles del 1968 nel diritto internazionale privato italiano: orientamenti consolidati e questioni aperte [The Reference to the Jurisdiction Criteria of the 1968 Brussels Convention in Italian Private International Law: Established Orientations and Open Questions; in Italian]

The article examines a few issues arising in connection with the reference made by Art 3(2) of Law 31 May 1995 No 218 to the criteria laid down in the 1968 Brussels Convention. In the article, it is first observed how, in recent times and especially in the light of two recent judgments of the Italian Supreme Court, the traditional orientation has completely changed, and that scholars and jurisprudence agree in considering the reference made by this provision as a reference to the most recent EU regulations and not to the 1968 Convention. Second, the article emphasises need for a uniform interpretation of the criteria nationalised by Art 3(2), as this is considered the only solution that allows not to undermine the coherence of the system. Lastly, the  article takes into consideration the possibility for Italian judges to submit a reference for a preliminary ruling to the Court of Justice of the European Union concerning the interpretation of the European discipline made applicable through Art 3 of Law No 218/1995, a possibility that seems to find consideration in the European case law.

Enrico Pedrotti, Juris Doctor, Problemi di giurisdizione in tema di azione contrattuale di garanzia proposta in via autonoma [Questions of Jurisdiction in Contractual Warranty Actions Brought in Autonomous Proceedings; in Italian]

Relying on the Italian Court of Cassation’s judgment No 613 of 8 January 2024, according to which Italian courts do not have jurisdiction pursuant to Art 8(2) of Regulation (EU) No 1215/2012 when an action on guarantee is brought in autonomous proceedings, this article discusses the link between such provision and national procedural rules on guarantees, highlighting how the exercise of judicial discretion in the authorization of a third-party claim in accordance with Art 269 of the Italian Code of Civil Procedure bears significant consequences on jurisdiction. Furthermore, the Author discusses the applicability of Art 7(1)(b) of Regulation No 1215/2012 on the basis of Art 3 of Law 31 May 1995 No 218 reforming the Italian system of private international law, in case the place of performance is located outside the EU, concluding in the negative.

Finally, the issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Mihail DANOV, Private International Law and Competition Litigation in a Global Context, Hart Publishing, Oxford, 2023, pp. XI-375.

Private International Law in BRICS: Convergence, Divergence and Reciprocal Lessons, edited by Stellina Jolly and Saloni Khanderia, has just been published by Bloomsbury Publishing. The blurb reads: This book examines the convergences, divergences and reciprocal lessons that the BRICS countries (Brazil, Russia, India, China and South Africa) share with one another in developing the principles […]

By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL

On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).

The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent.

By a 5-2 majority, the High Court decided that these proportionate liability regimes were to be applied in the arbitration. There has been much commentary published already as to what this means for arbitration law in Australia – including here, and here. What might be of most interest for this blog’s audience, however, is to note that the High Court’s reasoning was grounded in the application of private international law.

All of the High Court’s judgments in Tesseract – both majority and dissenting – recognised that whether or not the substantive law aspects of the two relevant proportionate liability regimes applied in the arbitration was a question of applicable law, to be resolved via South Australia’s implementation of Art. 28 Model Law. This is not the first time that this provision has been addressed by the High Court of Australia. The High Court was also required to analyse its effect in a failed constitutional challenge to Australia’s implementation of the Model Law in the international commercial arbitration context in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533. In that case, it was confirmed that Art. 28 Model Law does not require arbitrators to apply the law correctly. It was also confirmed that there is no separate term implied into an arbitration agreement having that effect.

It does not appear that the relationship between TCL and Tesseract has been appreciated in some existing commentaries on Tesseract, including in this blog which asks ‘[i]f the arbitrator gets it wrong, will that open the award to an enforcement challenge[?]’ Viewing Tesseract in light of TCL’s previous analysis, it appears that there should be no recourse against an award if an arbitrator correctly identifies the law of an Australian jurisdiction as applicable, but incorrectly applies (or even completely fails to apply) that jurisdiction’s proportionate liability laws. It is now trite law in Australia, as around the world, that errors of law do not ground recourse against an award under either the Model Law or the New York Convention.

Interestingly, the fact that Art. 28 Model Law was the key provision underpinning the High Court’s analysis in Tesseract should also answer a matter identified in some other commentaries – including here, here, and here – around Queensland law prohibiting parties from contracting out of its proportionate liability regime, and Victorian, South Australian, ACT, and Northern Territory law being silent on that contracting out issue. Since Art. 28(1) Model Law permits parties to choose rules of law, and not only law in the sense of a complete State legal system, it is arguably open to arbitrating parties to exclude the operation of proportionate liability laws in all Australian jurisdictions regardless of what they say about contracting out. In such cases, the parties would simply be choosing rules of law – which is a type of choice that Art. 28(1) Model Law permits.

Thus, whilst one of the first questions asked about Tesseract has been ‘[i]s the decision arbitration-friendly?’, it is perhaps not too controversial to suggest that Tesseract was a case less about arbitration itself, and more about private international law.

The book is based on Dr. Ekaterina Aristova’s PhD thesis, completed at the University of Cambridge and subsequently refined through postdoctoral research at the University of Oxford. The core content of the book spans eight chapters across 297 pages, excluding the preface, series editor’s preface, table of contents, and index.

The book explores the approach of English courts to jurisdictional issues in foreign direct liability (FDL) claims brought against English-based parent companies and their foreign subsidiaries as co-defendants. While written from the perspective of English law, it incorporates comparative insights from similar FDL claims in other jurisdictions, including Australia, Canada, EU Member States, and the US.

The book is particularly notable for its observation—citing Professor Robert McCorquodale—that FDL claims intersect with various fields of law, such as domestic criminal law, tort law, contract law, human rights and constitutional law, comparative law, public international law, and private international law. Despite these intersections, the book primarily focuses on the private international law aspect of civil jurisdiction in FDL claims before English courts.

Chapter 1 introduces the book by highlighting the significant role of transnational corporations (TNCs) and the substantial impact their operations have had on human rights violations within the business context. It also briefly clarifies key terminologies used throughout the book.

The introduction is divided into three crucial sections. Section A provides the necessary context for discussing foreign direct liability (FDL) claims. Section B defines the book’s scope, identifies the research questions, and outlines the general methodology employed in the study. Section C concludes with an overview of the book’s structure.

Chapter 2 addresses a major challenge in the regulation of transnational corporations (TNCs): the mismatch between the global nature of TNCs’ operations, carried out by legally distinct companies, and the territorial jurisdiction of sovereign states. Aristova highlights the difficulties in providing a clear legal definition of TNCs due to their complex, multi-tiered structures. While a precise definition is not offered, she notes that TNCs typically possess characteristics of corporate groups and contractual networks.

The chapter then discusses the challenges and potential solutions for holding TNCs accountable, focusing on the principles of corporate legal personality that separate parent companies from their subsidiaries and the public international law principle of territoriality. Finally, Aristova traces the origins of an emerging legislative trend toward legally binding instruments that mandate parent companies of TNCs to conduct human rights due diligence in cross-border business operations.

Chapter 3 provides a comprehensive analysis of litigation against transnational corporations (TNCs) across various jurisdictions, with a particular focus on English courts. It examines how foreign direct liability (FDL) claims have contributed to enhancing corporate accountability for human rights violations.

The chapter begins by introducing a hypothetical FDL case, involving an English-based parent company accused of negligently exercising (or failing to exercise) control over the overseas operations of its foreign subsidiary, resulting in harm to the subsidiary’s employees. Next, it explores how tort law, particularly the negligence element of the duty of care, has been utilised in English courts to circumvent the principle of corporate legal personality, which separates parent companies from their subsidiaries.

Chapter 3 also offers a comparative overview of the global litigation landscape, highlighting key case law developments in Western countries where powerful multinational corporations are headquartered. Jurisdictions considered include the United States, Canada, EU Member States (notably Germany and The Netherlands), and Australia, where claimants have sought justice by initiating FDL claims.

Finally, the chapter addresses the regulatory function of FDL claims, examining issues such as the uneven litigation landscape, fact-sensitive inquiries, the lack of precedents, the interplay between tort law and human rights, barriers to justice in home states, the balance between compensation and deterrence, and the question of whether tort law provides an effective solution.

Chapter 4 examines the capacity and challenges faced by English courts in adjudicating foreign direct liability (FDL) claims.

First, Section A presents the pre-Brexit framework of jurisdictional rules, focusing on Articles 4, 8, 33, and 34 of the Brussels I Recast Regulation. During the UK’s membership in the EU, establishing the domicile of an EU defendant company in transnational and parallel litigation was crucial for determining jurisdiction. It also considers the traditional English jurisdictional rules applied to other foreign companies during the pre-Brexit period.

Second, Section B addresses the impact of Brexit on jurisdictional matters. Post-Brexit, jurisdiction between the UK and the EU is now determined primarily by English traditional jurisdiction rules, the Hague 2005 Convention, and as from 1 July 2025,  the Hague 2019 Convention. Under common law, jurisdiction is fundamentally based on service, which is divided into two categories: jurisdiction as of right and jurisdiction with leave of the court. Jurisdiction as of right is determined by service and submission, subject to the principle of forum non conveniens. Jurisdiction with leave of the court is governed by Civil Procedure Rules 6.36 and 6.37, which require the claimant to demonstrate that (i) a jurisdictional gateway applies, (ii) the claim has a reasonable prospect of success, and (iii) England is the appropriate forum to hear the case.

Finally, Section C concludes by discussing some of the conceptual and practical flaws in the jurisdictional rules applied by English courts in FDL claims.

Chapter 5 explores the impact of transnational corporations (TNCs) and their rapid expansion across borders, which complicates the traditional view of private international law as a neutral set of rules. While Aristova does not seek to challenge the conventional understanding of the discipline or propose a normative stance on its role in addressing globalisation, the chapter instead aims to establish a more refined and focused approach to exercising jurisdiction in FDL claims.

Chapter 6 builds on the objectives of Chapter 5 by identifying the key factors to consider when assessing the suitability of English courts as a forum for disputes involving English parent companies and their foreign subsidiaries as co-defendants. These factors are divided into two categories: the private interests of litigants involved in FDL claims and the State’s interests in exercising jurisdiction over such cases.

Section A briefly examines why claimants often choose to bring FDL claims in England, setting the stage for jurisdictional disputes over the venue. Section B evaluates the claimants’ choice of forum against the procedural fairness of jurisdictional rules from the corporate defendant’s perspective. It considers factors such as the English-based parent company’s personal connections to the home state, the economic and managerial structure of TNCs, the avoidance of parallel litigation across multiple forums, the burden on corporate defendants defending in England, and the predictability and legal certainty of jurisdictional rules.

Section C discusses the broader policy implications English courts cannot avoid when English-based TNCs are accused of overseas human rights violations. It argues that the increasing significance of international, regional, and domestic frameworks for holding TNCs accountable calls for an open acknowledgment of the public interest in trying FDL claims against English parent companies and their subsidiaries in English courts.

Finally, Section D considers English courts’ assertions of jurisdiction in FDL claims from the perspective of host states, addressing foreign policy concerns such as potential infringements on state sovereignty. It examines whether home state adjudication of FDL claims can align with the host state’s interests.

Chapter 7 explores whether introducing a new connecting factor that explicitly accounts for the economic reality of transnational corporations (TNCs) could better address the complexities of FDL claims and improve how English courts determine jurisdiction. Aristova discusses the economic enterprise theory, which proposes that when a parent company and its subsidiaries are closely integrated and function as a single economic entity, their separate legal identities may be disregarded. This theory, Aristova explains, could provide a new framework for jurisdiction in FDL claims.

Aristova acknowledges that the economic enterprise theory has received limited attention in academic and judicial contexts and remains somewhat vague and uncertain. Nevertheless, she suggests that the theory might offer a viable approach for FDL jurisdiction cases in English courts.

I must confess, without claiming expertise in this area, that Chapter 7 is particularly complex—especially the discussion of the economic enterprise theory, which I found unclear. Aristova distinguishes this theory from the concept of piercing the corporate veil, but her arguments would have been more persuasive had she more convincingly demonstrated why this theory is superior to the existing tort-based approach. The current approach, endorsed by the UK Supreme Court, holds that a parent company owes a duty of care to individuals harmed by its subsidiary’s activities if it exercises de facto control or oversight over the relevant harmful actions. Furthermore, Aristova does not advance the economic enterprise theory with much confidence, instead tentatively suggesting it as a potential alternative for future legislative consideration.

Chapter 8 concludes the work by reaffirming the importance of ensuring that victims of FDL claims are given the opportunity to have their day in court and access a remedy.

A minor critique is that the use of abbreviations in the substantive chapters could have been reduced to improve readability. A better approach would be to introduce the full term followed by its abbreviation in each chapter, rather than doing so only once for the entire book.

Overall, the monograph is well-written and highly engaging. It is thorough, particularly in its coverage of English cases, and Aristova demonstrates expert knowledge of the subject.