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Neal Griffin
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1 Contents Preface Table of Cases Table of Legislation Table of Conventions, Treaties, etc vii xv xxv xxxix 1 Introduction The Concept, Nature and Development of Private International Law Sources of Private International Law The 3 Processes of PIL, and Standard Connecting Factors Procedural issues Application of the law Characterisation [qualification FR] of the legal question Connecting Factor Lex Causae Characterisation, Renvoi and the incidental issue or Vorfrage Forum shopping and forum non conveniens The Impact of European Law on the Private International Law of the Member States Legal basis The Development of European Private International Law Policy 13 2 The Core of European Private International Law: Jurisdiction Summary The Brussels I Regulation Scope of Application: Subject-Matter Scope of Application Ratione Personae The Jurisdictional Rules of the Regulation Detailed Review of the Regulation Trust is Good, Control is Better Scope of application: subject-matter The existence of an international element Civil and commercial matters Case 29/76 Eurocontrol Case 814/79 Ruffer Case C-271/00 Gemeente Steenbergen Case C-292/05 Lechouritou 31

2 x Contents Exclusions, inter alia arbitration Scope of application Ratione Personae Domicile The International Impact of the Regulation The Jurisdictional Rules of the Regulation A jurisdictional matrix Exclusive Jurisdiction, Regardless of Domicile: Article Jurisdiction by appearance: Article Insurance, consumer and employment contracts: Articles Protected categories Generally Consumer contracts Contract Consumer contract Concluded with a consumer Type of contract and application in an internet context Extended notion of domicile for jurisdiction over consumer contracts Alternative fora introduced by agreement Contracts for individual employment Insurance Contracts Agreements on Jurisdiction ( choice of forum or prorogation of jurisdiction ): Article In writing or evidenced in writing In a form which accords with practices which the parties have established between themselves In international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned General Jurisdiction: Defendants Domiciled in a Member State Where a Court is Seized: Article Special Jurisdiction: Defendants Domiciled in Another Member State: Articles Article 5(1): Actions Relating to a Contract Forum Contractus The Special Jurisdictional Rule for Tort: Article 5(3) JR Forum delicti commissi Multipartite Litigation and Consolidated Claims: Articles 6 (and 7) Multiple Defendants: Article 6(1) 100

3 Contents xi Warranties, Guarantees and any other Third Party Proceedings: Article 6(2) Counterclaims: Article 6(3) Matters Relating to Rights in Rem in Immovable Property: Article 6(4) Residual Jurisdiction: Defendants not Domiciled in any Member State: Article Loss of Jurisdiction: lis alibi pendens; and Related Actions: Articles Lis alibi pendens Identity of Parties Identity of Object or Subject-Matter Identity of Cause of Action Lis alibi pendens and the Forum Non Conveniens doctrine Related Actions Applications for Provisional or Protective Measures: Article Recognition and Enforcement Recognition Enforcement The Core of European Private International Law: Applicable Law Contracts Summary Principles Scope of application Basic principle: Freedom of choice Applicable law in the absence of choice Detailed review of the Regulation Scope of application Exclusions Universal Application Freedom of Choice Protected Categories Applicable Law in the Absence of Choice Formal Validity, Consent and Capacity Mandatory Law, and Public Order The Relationship with Other Conventions The Core of European Private International Law: Applicable Law Tort Introduction General Principles 153

4 xii Contents 4.3 Scope of Application Situations Involving a Conflict of Laws Only Courts and Tribunals? Application to Arbitration Tribunals Non-Contractual Obligations Excluded Matters Civil and Commercial Matters Applicable Law General Rule: Lex loci damni One General Exception to the General Rule and one Escape Clause General Exception: Parties Habitually Resident in the Same Country Escape Clause: Case Manifestly More Closely Connected with Other Country Specific Choice of Law Rules for Specific Torts No Specific Rules for Protected Categories Product Liability Unfair Competition and Acts Restricting Free Competition Environmental Damage Damage Caused by Infringement of Intellectual Property Rights Damage Caused by Industrial Action Freedom to Choose Applicable Law Scope of the Law Applicable Contract-Related Tort Claims Overriding Mandatory Law and Public Order The Insolvency Regulation The overall nature of and core approaches to insolvency and private international law Genesis of the Insolvency Regulation Scope of application and overall aim Link with the bankruptcy exception under the Jurisdiction Regulation Four cumulative conditions Collective proceedings Based on the debtor s insolvency Which entail the partial or total divestment of a debtor Which entail the appointment of a liquidator Opening by a court or judicial authority? Core aim of the Regulation The international impact of the Regulation The jurisdictional model: Universal jurisdiction based on COMI, alongside limited territorial procedures 192

5 Contents xiii Main insolvency proceeding: Centre of Main Interest COMI COMI as (un)defined by the Regulation European and national case-law on COMI Universality of the proceedings opened in the COMI Member State When is an insolvency procedure opened within the meaning of the Regulation? Secondary and territorial insolvency proceedings Territorial insolvency proceedings Secondary insolvency proceedings Applicable law Exceptions Recognition and enforcement of insolvency proceedings Judgments concerning the opening of insolvency proceedings Other judgments in the course of insolvency proceedings Defences against recognition and enforcement Powers of the liquidator Future amendment of the Regulation Free Movement of Establishment, Lex Societatis and Private International Law Daily Mail Centros Ǜberseering Inspire Art Cartesio and its mirror image: Vale Grid Indus Private International Law, Corporate Social Responsibility and Extraterritoriality The role of Private International Law in operationalizing Corporate Social Responsibility The United States: Litigation Based on The Alien Tort Statute Corporate Liability under ATS Standard Operating Procedure or a Lack Thereof International or Domestic Law Obstacles to Justice Procedural Dismissal Political Dismissal Conclusion on the United States The European Union 237

6 xiv Contents Jurisdiction General jurisdictional rule: Article 2 JR Special jurisdictional rule: Article 5(5) JR: operations arising out of a branch Special jurisdictional rule: Article 5(3) JR: Tort Special jurisdictional rule: Article 5(4) JR Review of the JR The international dimension of the Regulation Applicable law 239 Annexes 241 Brussels I 241 Regulation 1015/ Rome I 296 Rome II 307 Insolvency Regulation 317 Index 335

3.1.2 Scope of Application Basic Principle: Freedom of Choice Applicable Law in the Absence of Choice

3.1.2 Scope of Application Basic Principle: Freedom of Choice Applicable Law in the Absence of Choice CONTENTS Preface to the First Edition, 2012...v Preface to the Second Edition, 2016... vii Table of Cases... xvii Table of Legislation...xxxv Table of Conventions, Treaties... liii 1. Introduction... 1