DOCSLIB.ORG

Session a – the Tribunal

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Session a – the Tribunal SESSION A – THE TRIBUNAL 1 Arbitrator interviews To what extent are parties allowed to interview arbitrator candidates, and what precautions should the candidates themselves take (e.g. based on the CIArb guidelines)? 2 Due diligence on arbitrators Is there a concern about using private investigators to investigate the background and independence of proposed arbitrators? 3 Party appointed arbitrators (i) It is common for parties to nominate a lawyer from their own jurisdiction as their party appointed arbitrator. Frequently, the substantive law is also the law of that jurisdiction. Typically the other two arbitrators are from different jurisdictions. When issues of substantive law arise, is this arrangement a level playing field? (ii) To what extent is it permissible for a party to provide a list of potential tribunal chairs only to their party appointed arbitrator? If a party appointed arbitrator receives such a list, should he or she disclose it to the other party appointed arbitrator or to the other party or to both? (iii) In a typical arbitration clause, one party appoints an arbitrator first and the other party appoints another arbitrator, subject to approval by the arbitration institution where applicable. The chairperson is then appointed either by the two arbitrators or by the parties, as the arbitration clause provides. (iv) Is it common for the arbitration institution not to inform the identity of the arbitrator appointed by one party to the other party until that other party appoints another arbitrator? 4 Appointments by the institutions (i) Should institutional rules make the selection of arbitrator(s) by the institution / appointing body the default position? (ii) Where arbitral institutions are required to act as an appointing authority, should they endeavour to ensure that appointments of arbitrators on their roster list are distributed equally? 1 5 Appointment of non-lawyers The lawyers are taking over. Traditionally, we are told, one of the beauties of arbitration was that it provided a possibility for parties to have their disputes resolved within their own business or industry, without the involvement of lawyers. Certain arbitration rules (e.g. FOSFA) try to retain this option by excluding lawyers from parts of the procedure. Anecdotal evidence suggests that the appointment of non- lawyers is becoming increasingly rare. Is it? Are any delegates working on a case presided by a non- lawyer? What are the pros and cons of this route? 6 Selection of arbitrators Is expertise in a particular area of law or industry sector really a relevant factor when selecting an arbitrator? 7 Conflicts (i) Does the ability of parties to choose arbitrators encourage perceptions of bias or impartiality? (ii) There appears to be a concern about the neutrality of arbitrators who are actively recruiting global companies to be those entities' party appointed neutrals. Does this marketing approach by certain individual arbitrators conflict with the concept of real neutrality? (iii) Do people have any recent experience of making qualified disclosure when accepting an appointment because of a past or present relationship with counsel/ counsel’s firm? If Barristers’ chambers were concerned, were they treated differently to a conventional law firm? If there is any such recent experience, how did that work out for them? (iv) Does the use of social media create arbitrator conflicts of interest? (v) How far should disclosure of potential conflicts of interest go and how willing should an institution be to appoint despite some disclosure of a marginal nature? (For example: Is the fact that someone who works for a party is a LinkedIn connection of a potential arbitrator something that should be disclosed?) (vi) Shall an Arbitrator appointed upon nomination of one party be revoked where there exists a business relationship within the framework of the Board of Directors of a Company between such Arbitrator and (not the nominating party and/or the legal counsel, but) the defense technical consultant appointed by the Legal Counsel of the same party and such relationship has not been declared by the Arbitrator? Shall a possible revocation depend on the depth of the relationship and at what depth the relationship may be judged decisive for the revocation of the nomination? 2 (vii) Arbitrator X had acted as Chairperson in two different, completely unrelated arbitrations, A vs. B and C vs. D. Both arbitrations are terminated. In a third arbitration between A and C, which is totally unrelated to the two first arbitrations, A wishes to appoint X as co-arbitrator. Does X have to disclose • to A that he/she acted as Chairperson in the case between C vs. D; • to C that he/she acted as Chairperson in the case between A vs. B? 8 Challenges (a) When challenging arbitrators, the general criterion would be whether justifiable doubts exist as to the arbitrator's impartiality or independence. In discerning whether justifiable doubts exist, should the test be "sheer appearance of bias" or "actual bias"? In other words, should the test be a "subjective" or "objective" one? (b) In challenging arbitrators, does non-disclosure of certain facts qualify as an ipso facto or ipso jure ground for a successful challenge irrespective of the nature and impact of the non-disclosed information, or should the non-disclosed information strongly suggest and evince bias? (c) Challenging arbitrators is often a fact sensitive and fact assessment exercise, but what law governs such exercise to discern an arbitrator's bias? Is it the lex loci arbitri, the lex causae, the law governing the arbitrator's capacity (lex patriae or lex domicilii), or the law governing the arbitration agreement, the lex loci executionis, or a different law? 9 Emergency arbitrators (i) Does emergency arbitration provide sufficient procedural safeguards for the Respondent? (ii) Many institutional arbitration rules provide for opt out emergency arbitrators (eg SCC since January 2010, SIAC since July 2010, ACICA since August 2011, ICC since January 2012 and Swiss Chambers since June 2012), the AAA international and commercial arbitration rules foresee the opt in emergency arbitrator since 2006/2009. Does the LCIA offer the same or even better service with its expedited tribunal formation and the possibility to curtail time limits according to Article 9 of the LCIA Arbitration Rules? (iii) Parties seek to put pressure on each other especially in the period prior to the commencement of arbitral proceedings. A potential respondent may start state court proceedings or seek to obtain a court order enjoining the other party from commencing arbitral proceedings (“anti-arbitration injunction”). Such manoeuvres lead to an escalation of the dispute, increase the costs and divert the parties’ attention from the main issue. 3 Pursuant to Article 29(1) of the 2012 ICC Arbitration Rules, a party “that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal” can seek interim or conservatory measures from the Emergency Arbitrator. Can the Emergency Arbitrator play a useful role in fighting anti-arbitration injunctions by issuing anti-suit injunctions? 10 New counsel Once the tribunal is constituted, should there be a requirement on the parties to disclose the addition of any new counsel? 11 Removing counsel Can there really be a possibility for arbitral tribunals to remove counsel? 12 Tribunals' powers Do tribunals have the powers they need to deal with process abuses and are they using them? If not, how do they get them? 13 Arbitrators’ fees (i) There is increasing anecdotal evidence of arbitrators providing time sheets which indicate they have spent a disproportionate amount of time on a case compared with their co-arbitrators. LCIA caps the hourly rate but can anything be done by arbitrators or institutions about arbitrators who spend (or say they spend) an excessive amount of time on a case? (ii) Is proceeding through an institution a good way of bargaining down arbitrators’ fees? Does it work out cheaper having a top silk appointed by the ICC or appointed ad hoc? Or is there insufficient price transparency for parties or counsel to make any judgment as to how to control this element of fees? (iii) Many institutions that, unlike the LCIA, calculate the tribunal's fees on the basis of the amount in dispute still practise the 40:30:30 fee split. When chairing, I thus discuss the topic openly with my co-chairs at the outset and ask them whether they want to go with the mentioned split and allocate the workload accordingly or whether they want the chair to do most of the work and agree on a different fee allocation that reflects this. I am fine to go both ways. Unfortunately, in two recent cases, co-arbitrators opted for the 40:30:30 split while agreeing to split the work accordingly but were each time "unavailable due to other commitments" when work needed to be done. An hourly fee would avoid this problem, although I see that this makes the cost of the case less foreseeable for the parties. Have you experienced situations like mine? How would you react? 4 (iv) Should there be standard conditions for cancellation or postponement fees (e.g. sliding scale depending on time of notice) payable to the Arbitration Tribunal? If so, should they be mandatory or in the nature of suggestions? Should the payment of such fees be subject to conditions, such as the attempt to replace the scheduled hearing with other remunerated services? 14 Secretaries to the tribunal The ICC's "Note on
Load more

Recommended publications
  • Briefing Note
    BRIEFING NOTE June 2015 Cross-Border Inheritance Issues Background English laws of succession may apply to certain types of asset situated in other countries. Foreign laws of succession may apply to certain types of asset situated in England. The terms of a will may be overridden by the application of English or foreign laws of succession. In many countries freedom of testamentary disposition does not exist or is limited to a small part of the estate. In some countries legislation exists whereby certain individuals can apply to court to vary the dispositions of the estate that would otherwise apply. Different countries have different procedures for dealing with the administration of the estate with some requiring personal representatives and others which do not, where beneficiaries inherit directly. Some countries do not accept the concept of a trust. Considerations for a person with foreign assets Essential considerations include establishing which law (or laws) of succession and administration will apply to the testator’s assets and ascertaining whether there are restrictions which limit the testator’s freedom to dispose of his assets by his will (or wills). It can then be determined: Whether it is sensible to have one will dealing with the worldwide estate or separate wills in each principal jurisdiction where the testator owns assets; What special provisions should be made in the English will regarding foreign issues; and Which (if any) estate planning techniques are suitable. Applicable law To establish which law (or laws) apply to the devolution of assets it is first necessary to establish where they are situated as a matter of law.
    [Show full text]
  • The Application of the 2014 LCIA Rules to Arbitral Proceedings Seated in Italy
    Italy The Application of the 2014 LCIA Rules to Arbitral Proceedings Seated in Italy Ferdinando Emanuele and Milo Molfa Cleary Gottlieb Steen & Hamilton LLP On 25 July 2014, the London Court of International Arbitration • the appointment of a temporary sole arbitrator to con- (LCIA) announced the adoption of its new arbitration rules duct emergency proceedings pending the formation or the (2014 Rules). The 2014 Rules, which replace the 1998 LCIA expedited formation of the arbitral tribunal (emergency rules (1998 Rules), apply to arbitration proceedings instituted arbitrator);14 on or after 1 October 2014, unless the parties agree otherwise. • the expedited appointment of a replacement arbitrator;15 The 2014 Rules preserve all the key features of LCIA arbi- • the revocation of any arbitrator’s appointment;16 tration, including with respect to the role of the LCIA in the • the approval of a truncated tribunal’s decision to continue the appointment of the arbitral tribunal,1 the expedited formation arbitration, including the making of any award;17 of the tribunal,2 the conduct of multiparty proceedings3 and the • up until the constitution of the arbitral tribunal, if the arbi- confidentiality of the arbitration.4 At the same time, several sig- tration agreement is written in more than one language of nificant changes have been made, including with respect to the equal standing and the parties have not agreed otherwise, the form of, and the law governing, the arbitration agreement,5 the determination of the language of the proceedings;18 and conduct of the proceedings,6 and the granting of interim relief • the determination of the arbitration costs19 and of any pay- prior to the constitution of the tribunal.7 ments to be made by the parties on account thereof.20 This paper provides an overview of the 2014 Rules and con- siders their application to arbitration proceedings seated in Italy.
    [Show full text]
  • LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen*
    FORBIDDING DÉPEÇAGE: LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen* 1. INTRODUCTION The law governing international arbitration has been a field of considerable conceptual controversy. The debate goes back to the 1960's and 1970's, when distinguished scholars such as F .A. Mann, Berthold Goldman, Philippe Fouchard and others argued whether international arbitration should be considered an autonomous system of law, a new lex mercatoria, or whether it ultimately remained subject to the applicable local legal sys- tem. i As is well known, the former view was shared by many * Partner, LALIVE, Geneva. 1 would like to thank David Bonifacio of LALIVE for effective and efficient research assistance. 1. For an overview of this discussion see, e.g., Berthold Goldman, Les conflits de lois dans l'arbitrage international de droit privé, 109 bk. II RECUEIL DES COÙRS 347 (1964) (hereinafter Goldman, Les conflits de lois); Berthold Goldman, Frontières du droit et lex mercatoria, 9 ARCHIVES DE PHILOSOPHIE DU DROIT 177 (1964) (hereinaf- ter Goldman, Frontières du droit et lex mercatoria); PHILIPPE FOUCHARD, L'ARBITRAGE COMMERCIAL INTERNATIONAL 351-457 (1965); F.A. Mann, Lex Facit Arbitrum, in INTERNATIONAL ARBITRATION LIBER AMICORUM FOR MARTIN DOMKE 157 (Pieter Sanders ed., 1967); Pierre Lalive, Problèmes rélatifs à l'arbitrage interna- tional commercial, 120 bk. 1 RECUEIL DES COURS 569, 597-663 (1968); Pieter Sanders, Trends in the Field of International Commercial Arbitration, 145 bk. II RECUEIL DES COURS 205, 238-65 (1976); Pierre Lalive, Les règles de conflit de lois appliquées au fond du litige par l'arbitre international siègeant en Suisse, 145 RECUEIL DES COURS 2 (1976) (hereinafter Lalive, Les règles de conflit de lois appliquées); Harold J.
    [Show full text]
  • Renvoi in New York and Elsewhere
    Vanderbilt Law Review Volume 6 Issue 3 Issue 3 - April 1953 Article 12 4-1953 Renvoi in New York and Elsewhere John D. Falconbridge Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Conflict of Laws Commons Recommended Citation John D. Falconbridge, Renvoi in New York and Elsewhere, 6 Vanderbilt Law Review 708 (1953) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol6/iss3/12 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. RENVOI IN NEW YORK AND ELSEWHERE JOHN D. PALCONBRIDGE* I. Introduction: Two New York Cases In re Tallmadge1 related to the mode of distribution of the residuary estate of one Chadwick. The report of Winthrop, referee, which was confirmed by the Surrogate's Court of New York County, found that "the 'renvoi' is no part of New York law,"2 whereas thirty-one years later in In re Schneider's Estate it was held by Frankenthaler, Sur- rogate, also in the Surrogate's Court of New York County, that the "broad assertion in Matter of Tallmadge, supra, that the renvoi prin- ciple is not applicable in New York is not in accord with the earlier or later cases. The precise limits of its applicability are as yet un- defined." 3 The mutually irreconcilable, general expressions of opinion by two different judges of the Surrogate's Court of New York County in cases separated widely in point of time and differing widely in their circumstances have at least the merit of directing attention again to the perennially troublesome problem of the renvoi in the conflict of laws.
    [Show full text]
  • Drafting National Legislation on Conflict of Laws: the Swiss Experience
    DRAFTING NATIONAL LEGISLATION ON CONFLICT OF LAWS: THE SWISS EXPERIENCE FRANK VISCHER* I WHY A CODIFICATION OF CONFLICT OF LAWS IN SWITZERLAND? Debate continues whether conflict of laws is a suitable subject for legisla- tion. To codify conflict of laws in comprehensive legislation in the late 20th century may even be regarded as an anachronistic undertaking. David Cavers' preoccupation has been how the pursuit of justice in the individual case and ease and certainty can be combined in prefixed rules.' His careful investigation of old and new experiments with codification, focusing specifically on that point, convinced him that "the persistent reluctance of American conflicts scholars to advocate legislative solutions" was justified. 2 It therefore requires some explanation why the Swiss Government, follow- ing examples in neighboring States, entrusted to a commission the task of presenting to the Parliament draft legislation covering the whole field of con- flict of laws. Although I never hid my skepticism whether for all fields of law a legislative solution is superior to a judicial approach,3 I had the honor of being nominated chairman of this Commission, consisting of all conflicts specialists in Switzerland. But since undertaking this task, and with the de- velopment of the draft which will be published early in 1978, I became more and more convinced of the merits of such a joint effort requiring concentra- tion on each problem until a suitable solution was found. I became aware how much more difficult the task of the legislator is in comparison with that of the scholar reviewing the work afterwards. International issues have increased greatly in the last decades.
    [Show full text]
  • In Polish: “Prawo Prywatne Mi Ędzynarodowe” ) Is a Legal Discipline Defined by Polish Scholars Either in a Narrow Or a Wider Sense
    Mateusz Pilich, Ph.D. CONCISE INTRODUCTION TO POLISH PRIVATE INTERNATIONAL LAW Private international law (in Polish: “prawo prywatne mi ędzynarodowe” ) is a legal discipline defined by Polish scholars either in a narrow or a wider sense. I. Narrowly defined (definition by method) The branch of law responsible for designating the law applicable to certain relationships, cases and situations with a private law dimension (e.g. marriages, contracts, torts/delicts, adoptions and successions) not confined to the competence of just one State (otherwise called ‘international’ or ‘cross-border’ private-law situations). Its only function is designating the law, so it brings, theoretically, no substantive decisions with it, merely pointing at the competent law to remove any potential conflict, whether positive or negative (German: Verweisungsrecht, Kollisionsrecht; English: the law of conflict of laws, conflicts law ); it contains only indirect rules of law ( conflicts rules ). In Poland, the latter are codified (see below). II. Widerly defined (definition by function) The branch of law responsible for regulating any ‘international’ or cross-border private law relationships, whatever the method applied. It contains both the rules of the PIL in the narrow sense (conflicts rules) and the provisions of civil and commercial law (substantive law rules) specifically governing cross-border situations, e.g. contracts for the international sale and transport of goods; international cheques, bills of exchange and promissory notes; and international successions. The latter are usually generated by international legislation such as, for instance, the UN Convention on Contracts for the International Sale of Goods, signed in Vienna on 30 April 1980 (abbreviated as: CISG ); however, local law rules of this type can also exist ( law of aliens).
    [Show full text]
  • International Commercial Arbitration in Europe: Subsidiary and Supremacy in Light of the De- Localization Debate Theodore C
    Case Western Reserve Journal of International Law Volume 31 | Issue 2 1999 International Commercial Arbitration in Europe: Subsidiary and Supremacy in Light of the De- Localization Debate Theodore C. Theofrastous Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Theodore C. Theofrastous, International Commercial Arbitration in Europe: Subsidiary and Supremacy in Light of the De-Localization Debate, 31 Case W. Res. J. Int'l L. 455 (1999) Available at: https://scholarlycommons.law.case.edu/jil/vol31/iss2/6 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. NOTE INTERNATIONAL COMMERCIAL ARBITRATION IN EUROPE: SUBSIDIARITY AND SUPREMACY IN LIGHT OF THE DE-LOCALIZATION DEBATE Theodore C. Theofrastous" I. DOES/SHOULD THE SITE OF ARBITRAL PROCEEDINGS M ATTER? ................................................................................... 456 II. THE DE-LOCALIZATION DEBATE - WHEN DOES NATIONAL LAW M ATTER? .......................................................................... 457 A. W hy Localize? .......................................... .. .. .. .. .. 461 1. Enter National Laws Governing Arbitration ............................... 462 2. Historic Localization ...............................................................
    [Show full text]
  • Binding Force of International Arbitral Awards, 23 VA
    DATE DOWNLOADED: Tue Sep 28 14:30:07 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. William W. Park & Jan Paulsson, The Binding Force of International Arbitral Awards, 23 VA. J. INT'l L. 253 (1983). ALWD 6th ed. Park, W. W.; Paulsson, J. ., The binding force of international arbitral awards, 23(2) Va. J. Int'l L. 253 (1983). APA 7th ed. Park, W. W., & Paulsson, J. (1983). The binding force of international arbitral awards. Virginia Journal of International Law, 23(2), 253-286. Chicago 17th ed. William W. Park; Jan Paulsson, "The Binding Force of International Arbitral Awards," Virginia Journal of International Law 23, no. 2 (Winter 1983): 253-286 McGill Guide 9th ed. William W Park & Jan Paulsson, "The Binding Force of International Arbitral Awards" (1983) 23:2 Va J Int'l L 253. AGLC 4th ed. William W Park and Jan Paulsson, 'The Binding Force of International Arbitral Awards' (1983) 23(2) Virginia Journal of International Law 253. MLA 8th ed. Park, William W., and Jan Paulsson. "The Binding Force of International Arbitral Awards." Virginia Journal of International Law, vol. 23, no. 2, Winter 1983, p. 253-286. HeinOnline. OSCOLA 4th ed. William W Park and Jan Paulsson, 'The Binding Force of International Arbitral Awards' (1983) 23 Va J Int'l L 253 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information The Binding Force of International Arbitral Awardst WILLILM W.
    [Show full text]
  • Choice of Law and the Doctrine of Renvoi
    No. 3] Choice of Law and the Doctrine of Renvoi Stanley B. Stein * If a central object of our legal system is to provide equal justice to all who come before our courts, then it is necessary to develop principles of law so that, in so far as possible, similar cases will lead to similar decisions. This requirement of uniformity and con- sistency runs through all branches of law, but the problems which it generates become particularly acute in those cases which may require the application of rules of law that are foreign to our courts. In cases having elements that connect them with other jurisdictions, one of the questions that arises is whether foreign rules of law should be reflected in the decision of the court, and if so, to what extent. In essence this is a question of choice of law. This paper will seek to examine the choice of law problem. This will involve a brief discussion of "characterization" and its relationship to the choice of law, a critical examination of the renvoi doctrine, and finally, some suggestions towards a reform- ulation of choice of law concepts. 1. Characterization Once a court has decided to accept jurisdiction in a case, it will normally take into consideration the foreign elements raised by any of the facts. According to Graveson, to ignore them, "would make a travesty of justice".' Most courts will therefore refer to the appropriate foreign system of law whenever they are asked to attach legal consequences to a situation that has been created under foreign law.
    [Show full text]
  • New Private International Law in Korea 267 New Private International Law in Korea
    〔Kyung-Han Sohn 〕 New Private International Law in Korea 267 New Private International Law in Korea Kyung-Han Sohn ＊傘＊ I Introduction The “Sub-Oi-Sa-Beob ”（ Conflict of Laws Act of Korea). was enacted on January January 15, 1962 with no major changes until the Amendment of April 7, 2001. 2001. The purpose of the Amendment is to update the old law by incorporat- ing ing recent developments in Korean and international conflict of laws princi- ples. ples. The Amendment was proposed by the Ministry of Justice of Korea and passed passed the National Assembly, e宜ective as of July 1, 2001. The new law is renamed the “Kuk-J e-Sa-Beob ”（ Private International Law Act Act or the Conflict of Laws Act, ("new CLA ”） ) better defines the areas which were not su 任iciently addressed in the original act. such as jurisdiction, capac- ity ity to have rights, legitimation. legal person. intellectual property, agency, means of transportation. res in transitu, and security interest in claims. The new CLA also amends some provisions1u which may have been contrary to the the constitutional principle of gender equality. In addition, the new CLA adopts adopts the “Most Closely Connected Country ” rule in determining the gov- erning erning law and uses the concept of the “Habitual Residence ” as a connecting factor. factor. While the CLA broadens party autonomy, it also incorporates provi- sions sions to protect consumers and workers with weak societal and low eco ・ nomic nomic status. Also. the CLA narrowly defines the scope of renvoi which al- lows lows only remission but does not allow transmission in most cases.
    [Show full text]
  • Renvoi Theory and the Application of Foreign Law: Renvoi in Particular
    THE RENVOI THEORY AND THE APPLICA­ TION OF FOREIGN LAW. • II. Renvoi IN PARTICULAR Cr,ASSES OF CASES. It has been intimated that renvoi might be allowed as an ex­ ceptional doctrine with respect to the lex domicilii. The theory suggested is that since the adoption of the le.~ domicilii in the Con­ flict of Laws arose from a desire that the rights governed thereby be subject to one law1-an aim impossible of realization after many countries have gone over to the lex patria?-_courts still adhering to the old rule would be justified in interpreting the same in a renvoi sense.2 This conclusion, however, is inadmissible. Could the question be examined de novo, English and American courts, for example, might hold, in view of their tendency to subject transfers of personal property inter vivos to the lex rei sit(E, 3 that the same rule should govern its distribution upon death. But as long as the lex domicilii is retained as the general principle4 a substitution of the lex fori for the foreign law upon the sole ground that the foreign country had become a con­ vert to the lex patri(E could be supported neither upon principle nor upon grounds of policy.5 The objections raised against renvoi in general apply with full force to this class of cases. 6 'There is considerable doubt in regard to the origin of the rule lex domicilii in the matter of succession. See Harvey v. Richards ( 1818) r Mason 381, per Story, J.; Thorne v. Watkins (1750) 2 Ves.
    [Show full text]
  • Recent Developments in the Area of International Family Law in East Asia: Focus on International Divorce and Child Abduction
    Recent Developments in the Area of International Family Law in East Asia: Focus on International Divorce and Child Abduction Associate Professor HUANG Renting(黄軔霆) Faculty of Law, Tezukayama University I. Introduction Stepping into the 21th century, East Asia countries have seen dramatic changes in the legislation of private international law. Korea, Japan and China revised their former private international law rules and enacted new acts in 2001, 2007 and 2011 respectively (hereinafter as KPIL, JPIL and CPIL respectively).1 I totally agree with Prof. Suk’ suggestion, that in order to archive the long term goal for the unification or harmonization of the PIL rules in the Region, more practical approach at the moment would be for the PIL experts to engage in more in depth comparative analysis of the PILAs and their actual application by the courts in the Region. Thus, in my presentation, I will discuss the possibility of harmonization in dealing with international family matters in the Region, with emphasis on international divorce and child abduction, after conducting a comparative analysis of PIL rules as well as related practices in and out of courts. II. A Brief Survey of the PIL rules In this part, a brief survey of the PIL rules and some related practices on * This is a draft paper prepared for the presentation at the Conference of the International Law Association of Japan in Shizuoka on October 12, 2013. 1 Taiwan has also enacted its new Private International Law Act, “Law Concerning the Application of Law for Civil Matters Involving Foreign Element”, which has become effective as of May 26,, 2011.
    [Show full text]