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Commentaries on Private International Vol. 3, Issue 1 Fall 2017 COMMENTARIES ON PRIVATE INTERNATIONAL LAW THE PILIG NEWSLETTER Notes from the Editor INSIDE THIS ISSUE Notes from the Editor e are pleased to present the third “public” or “private” nature of those 1 issue of Commentaries on Private conflicting regulations. Co-chairs Notes International Law, the newsletter 4 W To achieve what is perhaps the first of the American Society of International Africa Law (ASIL) Private International Law comprehensive global approach to PIL, 4 Interest Group (PILIG). As readers of the Commentaries includes five sections dealing with regional issues, edited by specialists Asia newsletter know, the name of our 11 newsletter, Commentaries, represents a on the field: Africa, edited by Richard Frimpong Oppong and Justin Monsenepwo Americas modest tribute to one of the founding 16 fathers of modern PIL, Joseph Story, by Joost; Asia, by Chi Chung, Yao-Ming Hsu borrowing the name of his seminal book and Béligh Elbalti; the Americas by Cristian Europe 27 “Commentaries on the Conflict of Laws, Giménez Corte and Jeannette Tramhel foreign and domestic,” and only replacing (Central and South America), and Freddy Oceania “Conflict of Laws” with “Private Sourgens and Mayra Cavazos Calvillo 34 International Law” to better reflect the (North America); Europe, by Massimo GLOBAL CONFLICT broader object of our discipline today. Benedettelli, Marina Castellaneta, and OF LAWS Antonio Leandro; and Oceania, by Jeanne 37 The primary purpose of our newsletter is to Huang. We would like to highlight the communicate news on PIL. Accordingly, the efforts made by our global editorial team in newsletter attempts to transmit translating, both linguistically and legally, information on new developments on PIL into English and for a global audience Private International Law rather than provide substantive analysis, information that was originally in Japanese, Interest Group with a view to providing specific and Arabic, Portuguese, Spanish, Russian, concise raw information that our readers Italian, French, German, Turkish, CO-CHAIRS can then use in their daily work. These new Vietnamese, and Chinese. Freddy Sourgens developments on PIL may include Kabir Duggal information on new laws, rules and This third issue of Commentaries covers more countries and includes in greater regulations; new judicial and arbitral EDITOR decisions; new treaties and conventions; detail recent developments in our field. new scholarly work; new conferences; Each regional section includes a brief intro- Cristián Giménez Corte proposed new pieces of legislation; and ductory note, and a special chapter the like. devoted to new scholarly work, which is of particular importance for those areas of Commentaries aims to be a truly global the world where the dissemination of infor- newsletter, by reporting news from all mation on PIL is more difficult. The main Commentaries on Private major legal systems of the world, which developments covered by Commentaries International Law is the newsletter of the ASIL may have different conceptions of PIL. occurred during 2016, including only a few Private International Law Thus, the PILIG newsletter is framed in a developments occurred in late 2015 and Interest Group. Any views rather broad sense, comprising all types early 2017. expressed in this publication are those of of situations generating potential conflicts the authors and not those of laws and/or jurisdictions, regardless of In this third issue, Commentaries continues of the American Society of the “international” or “internal,” or to develop a section introduced last year. International Law. —continued on page 2 Private International Law Interest Group Newsletter Fall 2017 Editors’ Notes —continued from page 1 This section is called “Global Conflict legislations. In addition, Canada and Maintenance Convention. Noteworthy, of Laws,” edited by Cristián Giménez the EU signed the Comprehensive the Turkish Constitutional Court Corte and Javier Toniollo, presents new Economic and Trade Agreement decided on a leading international child developments on PIL that are not nec- (CETA), still –unlike the TPP, the CETA abduction case, and the CJEU rendered essarily linked to one particular region seems to better protect national public an important decision on the execution or country in the world, but that are policies over transnational interest, and of maintenance obligations. truly transnational or global. it establishes an investment official court, instead of ad-hoc arbitral The second place in new developments The comprehensive global approach to tribunals. In the same line, new on PIL is for commercial and PIL provided by Commentaries, as it developments on the application of investment arbitration. In this regard, reports new developments on PIL from supranational regulations are being Senegal adopted a new arbitration law, all the five continents, allows witnessed by African countries parties and India passed a new Arbitration and Commentaries to make apparent the to the Economic Community of Conciliation Act, while the parliaments main current global trends in PIL. Western African States (ECOWAS). of Argentina, Australia, and New Zealand have proposed amendments Perhaps the most important global From a more traditional inter-national to their current laws on the matter. In development on PIL during last year perspective, the role and importance of addition, the International Chamber of was the crisis of supra-national law intergovernmental organization (IO) Commerce (ICC), and arbitral and supranational institutions. The par- in the development of PIL is ever- institutions in Sweden and Australia adigmatic symptom of this crisis sur- increasing, as demonstrated by the issued new arbitrations rules. faced in the decision of the United work of the Organization of American Furthermore, the Netherlands, Kingdom to leave the European Union, States (OAS), the Hague Conference, Switzerland, Canada, and Mauritius better known as Brexit. Moreover, the UNCITRAL, UNIDROIT, the Organization ratified the Transparency in Treaty- decision of the United States admin- for the Harmonization of Business Law based Investor-State Arbitration. Very istration to stop the Trans-Pacific in the Caribbean (OHADAC), and the importantly, Phillips Morris lost two Partnership (TPP) negotiations and to Organisation pour l'Harmonisationen Afrique important investment arbitrations withdraw from the Paris Agreement du Droit des Affaires (OHADA). battles against Australia and Uruguay. on climate change is another very important indicator of this switch. This Family, as we all know, is an important The Olympic Games held in Rio de crisis of supra-national law has been thing. This is shared by the Janeiro in 2016 has made clear the preceded by the withdrawal by Bolivia international community as the newest close relations between PIL and the lex (2007), Ecuador (2009), and Venezuela developments of PIL occurred in family sportiva, as case law from Fiji and the (2012) from international organizations law. This includes new EU regulations Court of Arbitration for Sports (CAS) such as the International Centre for on the property of international have shown. Settlement of Investment Disputes couples, ratification of the Convention (ICSID), and the more recent attempts- on the Protection of Adults by Latvia Regarding protection of assets, the from South Africa, Burundi, and and Monaco; and the ratification of the EU passed a new Account Preservation Gambia to leave the International Convention on Parental Responsibility Order procedure (EAPO), while and Criminal Court (ICC). In the same vein, by Norway, Serbia, and Turkey. In the CCJA of the Organisation pour recent decisions by the High Court of addition, Ghana and Kyrgyzstan l'Harmonisationen Afrique du Droit des Ghana and the Supreme Court of acceded to the Convention on Inter- Affaires (OHADA) rendered a decision Argentina refuse to enforce judgments country Adoption, and Mauritius and based on the Uniform Act on from regional supranational courts. Congo passed new national legislation Simplified Debt Collection Procedures on international adoption. In this same and Enforcement. Yet, in a seemingly opposite direction, line, Bolivia, Pakistan and the the bulk PIL codification in the EU is As the need for communications Philippines acceded to the Child among countries continues to grow, so produced through supra-national Abduction Convention, while Turkey acceded regulations, but not through national to the Child Support and Family —continued on page 3 2 Private International Law Interest Group Newsletter Fall 2017 Editors’ Notes —continued from page 2 does international procedural law.The China seems to have changed its policy national law, and perhaps, more EU passed a new a regulation on recognition of foreign judgments, as generally the feeble legitimacy of simplifying the legalization of foreign in a recent a case a Chinese court international law as a whole. documents. Morocco and Chile enforced a foreign judgment on the acceded to the Apostille Convention, basis of reciprocity. Can PIL contribute, through its conflict Vietnam acceded to the Service of law methodology, not only to the Convention, and courts in Canada and In Latin America and the Caribbean, formal systematization but also to the the US decided leading cases related to the Convention on Private International Law substantive legitimation of the rules of servicing abroad. of 1928, best known as the a global system of law? “Bustamante Code” seems to have Relations
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