Conflict of Laws .net

Martins Aljens (Lejins Torgans & Partners) has posted a summary on how the entry into force of the Rome Convention in Latvia has altered the Latvian conflict of laws rules. The Rome Convention came into force in Latvia on 1st March 2006. The provisions of the Rome Convention override the conflict of laws provisions relating to contractual obligations embodied in the introductory part of the much less-detailed Latvian Civil Law.

Perhaps the biggest area in which the difference will be felt is the identification of the applicable law in the absence of choice (Article 4). Aljens argues:

The Rome Convention sets a somewhat differrent mechanism to determine the applicable law in the absence of choice by the parties. While, in such case, the Civil Law always directs to the law of the country where the obligation is to be performed, the Rome Convention is more general in providing that the applicable law is that of the country with which the contract is most closely connected. In help of determination of the applicable law in the absence of choice, the Rome Convention provides several presumptions as to the country with which the contract is most closely connected. Although the application of such presumptions may lead to the same result as the Civil Law, it is likely that the applicable law under the Rome Convention will be different in most cases.

Latvia has also, fortunately, lost the doctrine of renvoi (which was applicable in contractual matters under their national conflict of laws rules). Interestingly, Latvia entered a reservation on Article 7(1) (as the UK, Germany, Ireland and Luxembourg did originally, through fear of uncertainty [see the Giuliano-Lagarde Report, OJ 1980 C282/28]), which gives effect to the overriding rules of a closely connected country's law (that is not the applicable law).

For the full summary, see Latvia: Rome Convention on the law applicable to contractual obligations comes into force in Latvia.

There is an interesting article on "Land, security in land and the European Regulation on Insolvency Proceedings 2000" by Paul Omar in the latest issue of the Conveyancer and Property Lawyer. The article discusses the interaction between insolvency law and land law in the UK, France and EU. It summarises Council Regulation 1346/2000, noting the provision for the law of the Member State in which property is situated to govern land issues. It also examines the exceptions to the default lex concursus rule introduced by Arts.5-15 of the Regulation, and addresses the types of security interest affected, particularly where no local equivalent exists.

Conveyancer and Property Lawyer Conv. (2006) July/August Pages 353-373. The full text is available on Westlaw.

Stuart Dutson (Linklaters) has written an article in the Journal of Business Law (J.B.L.): A dangerous proposal - the European Commission's attempt to amend the law applicable to contractual obligations. Here is the abstract:

This article analyses the Proposal for a European Parliament and Council Regulation on the law applicable to contractual obligations (Rome I). Explores the proposed changes to the Convention on the Law Applicable to Contractual Obligations 1980, the Rome Convention. The article welcomes some of the proposals, including the ability for parties to choose non-State bodies of law, but argues that two are dangerous, focusing on the provisions on applicable law in the absence of choice and the application of foreign mandatory rules.

Journal of Business Law J.B.L. (2006) September Pages 608-618.

Case C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (13th July 2006) concerns the interpretation of Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The question referred to the ECJ by the Oberster Gerichtshof (Supreme Court of Austria) was:

Can a claimant rely on Article 6(1) of Regulation … No 44/2001 when bringing a claim against a person domiciled in the forum state and against a person resident in another Member State, but where the claim against the person domiciled in the forum state is already inadmissible by the time the claim is brought because bankruptcy proceedings have been commenced against him, which under national law results in a procedural bar?

The ECJ held, inter alia, that:

• Article 6(1) should be interpreted strictly in order to preserve the dominant rule in Article 2(1) (see Case C-51/97 Réunion européenne and Others [1998] ECR I-6511, paragraph 16, and Case C-265/02 Frahuil [2004] ECR I-1543, paragraph 23).
• National courts must have regard for the principle of legal certainty (see Case C-281/02 Owusu [2005] ECR I-1383, paragraph 38). That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued.
• The provisions of the regulation must be interpreted independently, by reference to its scheme and purpose. Since Article 6(1) is not one of the provisions, such as Article 59 of Regulation No 44/2001, for example, which provide expressly for the application of domestic rules and thus serve as a legal basis therefor, Article 6(1) of the Regulation cannot be interpreted in such a way as to make its application dependent on the effects of domestic rules.

Therefore, the Court ruled that Article 6(1) must be interpreted as meaning that, in a situation such as that in the main proceedings, that provision may be relied on in the context of an action brought in a Member State against a defendant domiciled in that State and a co-defendant domiciled in another Member State even when that action is regarded under a national provision as inadmissible from the time it is brought in relation to the first defendant.

Case C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH [click for full judgment].

Case C-4/03 Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG (13th July 2006) concerned a reference from the Oberlandesgericht Düsseldorf (Germany) to the ECJ for a preliminary ruling on the interpretation of Article 16(4) of the Brussels Convention.

The Oberlandesgericht (Higher Regional Court) Düsseldorf sought, in essence, to ascertain the scope of the exclusive jurisdiction provided for in Article 16(4) of the Convention in relation to patents. It asked whether that rule concerns all proceedings concerned with the registration or validity of a patent, irrespective of whether the question is raised by way of an action or a plea in objection, or whether its application is limited solely to those cases in which the question of a patent’s registration or validity is raised by way of an action.

The ECJ adjudged that:

• To allow a court seised of an action for infringement or for a declaration that there has been no infringement to establish, indirectly, the invalidity of the patent at issue would undermine the binding nature of the rule of jurisdiction laid down in Article 16(4) of the Convention.
• While the parties cannot rely on Article 16(4) of the Convention, the claimant would be able, simply by the way it formulates its claims, to circumvent the mandatory nature of the rule of jurisdiction laid down in that article.
• The possibility which this offers of circumventing Article 16(4) of the Convention would have the effect of multiplying the heads of jurisdiction and would be liable to undermine the predictability of the rules of jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is the basis of the Convention (see Case C-256/00 Besix [2002] ECR I-1699, paragraphs 24 to 26, Case C-281/02 Owusu [2005] ECR I-1383, paragraph 41, and Case C-539/03 Roche Nederland and Others [2006] ECR I‑0000, paragraph 37).
• To allow, within the scheme of the Convention, decisions in which courts other than those of a State in which a particular patent is issued rule indirectly on the validity of that patent would also multiply the risk of conflicting decisions which the Convention seeks specifically to avoid (see, to that effect, Case C‑406/92 Tatry [1994] ECR I-5439, paragraph 52, and Besix , cited above, paragraph 27).

On those grounds, the ECJ ruled that Article 16(4) of the Brussels Convention is to be interpreted as meaning that the rule of exclusive jurisdiction laid down therein concerns all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection.

See here for the full judgment.

Dr. Michael Sonnentag (Freiburg) has published an article in the German legal journal "Zeitschrift für vergleichende Rechtswissenschaft" on the Europeanisation of the non-contractual law of obligations ("Zur Europäisierung des Internationalen außervertraglichen Schuldrechts durch die geplante Rom II - Verordnung", Vol. 105 No.3 (2006), p. 256). 

In his article Sonnentag attends to the background of the existing proposals, the legal basis, the scope of application of a future Rome II Regulation, its individual conflict of law rules and general questions such as public policy.

Peter Stone (University of Essex, UK) has published EU Private International Law: Harmonization of Laws, part of the Elgar European Law Series.

This book focuses on harmonization of conflict laws at the European Community level, which has been driven by the introduction of a series of conventions and regulations. It offers critical assessment of these advances across four main areas of concern: civil jurisdiction and judgments; the law applicable to civil obligations; family law; and insolvency.

Specifically, the measures examined and evaluated include:

• the Brussels I Regulation on civil jurisdiction and judgments
• the Regulation on uncontested claims
• the Rome Convention 1980 on contracts
• the Rome II Proposal on torts and restitution
• the Brussels IIA Regulation on matrimonial proceedings and parental responsibility
• the Regulation on insolvency proceedings.

Contents: Preface Part I: Introduction 1. Introduction Part II: Civil Jurisdiction and Judgements 2. History, Outline and Scope 3. Domicile 4. Alternative Jurisdiction 5. Protected Contracts 6. Exclusive Jurisdiction 7. Submission 8. Concurrent Proceedings 9. Provisional Measures 10. Recognition and Enforcement of Judgements 11. Enforcement Procedure Part III: Choice of Law in Respect of Obligations 12. Contracts 13. Protected Contracts 14. Torts 15. Restitution Part IV: Family Matters 16. Matrimonial Proceedings 17. Parental Responsibility 18. Familial Maintenance and Matrimonial Property Part V: Insolvency 19. Insolvency Index

The book is priced at £99.00. More information can be found on the publisher's website.

There is a short note by Wendy Hopkins and Stephen Turner (Beachcroft LLP) in the new issue of the Solicitors Journal on the recent House of Lords ruling in Harding v Wealands (2006) UKHL 32; (2006) 3 WLR 83 (HL) [see this post for the judgment].

The article focuses on whether the relevant provisions of the New South Wales Motor Accidents Compensation Act 1999 were procedural and should be excluded when determining the quantification of damages for personal injury.

Ref: Solicitors Journal S.J. (2006) Vol.150 No.32 Page 1071.

A new thesis concerning consumer contracts has been published in Germany in June 2006: Kathrin Sachse, Der Verbrauchervertrag im Internationalen Privat- und Prozessrecht. In this thesis, structure and limits of the international consumer contract are analysed against the background of European law and comparative law. On the basis of the different approaches to define the term "consumer", a proposal for a uniform concept of "international consumer contract" is developed.

More information can be found on the publisher´s website. 

The German legal journal "Das Jugendamt" (The Youth Welfare Office) attends in its new volume 8 (2006) in particular to international adoption law. It contains articles concerning this topic as well as judicial decisions, which focus on problems concerning the recognition of foreign adoptions, such as the question whether German public policy is violated if the interests of the child have not taken into account sufficiently.

Contents (concerning international adoption law):

• Jörg Reinhardt describes in this article the recognition of foreign adoptions from the point-of-view of adoption agencies.

• Mathias Beyer annotates in his article two decisions of German local courts which concerned the question whether German public policy is violated if no sufficient examination of the future adoptive parents´ suitability and the interests of the child has taken place.

• Wolfgang Weitzel discusses in his article a decision of the Amtsgericht (Local Court) Hamm (see below) which concerns the question whether a foreign adoption can be recognized in Germany even if the adoption was flawed.

• In this decision the court ruled that an adoption which has been carried out without taking the interests of the child into account violates German public policy and can therefore not be recognized. 

• In this decision the court ruled that the relevant point in time for assessing whether the recognition of the foreign adoption violates German public policy is when deciding about the recognition.

• The court ruled that a foreign adoption which has been carried out without an examination of the prospecitve adoptive parents´ qualification violates German public policy. 

• The court ruled that a foreign adoption can be recognized even if it is legally flawed as long as it serves the interests of the child and is consistent with the essential principles of German law.

An new book edited by Jürgen Basedow and Toshiyuki Kono with the cooperation of Giesela Rühl is being published in August 2006: An Economic Analysis of Private International Law. The book contains eleven contributions covering different aspects of private international law which have been discussed at a German-Japanese Conference in 2005.

More information can be found on the publisher´s website.

Christopher Whytock (Duke University) has posted a very interesting article on SSRN, entitled Domestic Courts and Global Governance. Here's the abstract:

This paper proposes a concept of “transnational judicial governance” that draws attention to the important but widely neglected role of domestic courts in the governance of transnational relations, makes explicit the connections between private international law and global governance, and emphasizes the domestic legal and institutional foundations of transnational activity. Because legal scholars have done little positive theoretical or systematic empirical work on judicial decisionmaking in transnational disputes, and because international relations scholars - even those interested in global governance - generally have paid little attention to domestic courts, we have little knowledge about how domestic courts actually behave as global governors.

This paper, and the broader project on domestic courts and global governance of which it is a part, seeks to help fill that gap. I first present the concept of transnational judicial governance, and clarify its relationship to the concepts of transgovernmental networks and the legalization of world politics. Second, taking an interdisciplinary approach, I situate the concept in relation to private international law scholarship, and international relations scholarship on global governance, international political economy, sovereignty, and the judicialization of politics. Third, I draw on the judicial decisionmaking literature to develop a positive theory of transnational judicial governance. I highlight a key dimension of variation in transnational judicial governance decisionmaking: assertion of domestic governance authority versus deference to foreign governance authority. Then, treating judges as boundedly rational actors, I argue that this variation can be largely explained by the heuristics used by judges to make their decisions. Fourth, I explain the overall research design for the project. I conclude by discussing the broader implications of transnational judicial governance and identifying some of the important empirical and normative questions raised by the role of domestic courts in global governance that can guide future research. Public international law scholars and international relations scholars are increasingly collaborating. This paper is the first in a series of papers aimed at bringing together private international law and international relations, two disciplines which have for the most part remained separate, but which have the potential for substantial mutual gains.

Comment: The article does not deal with private international law in substantive detail (i.e. it simply provides definitions of phrases such as "choice of forum", "recognition and enforcement", and so on), but that is arguably not within its scope. Regardless, it is certainly a fascinating insight into the potential connections between the conflict of laws and the political sciences.

(VG Karlsruhe, judgment of 9 September 2004 – 2 K 1420/03; (2006) 3 IPRax, 284) 

The VG Karlsruhe (Administrative Court) decided in this judgment that a non-resident of the EU who has contracted a same-sex marriage with an EU resident is not a spouse in terms of Art.10 (1) lit. a Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. Therefore the permit of residence was not granted for the length it has been applied for. The court refers in its explanations inter alia to a decision of the ECJ from 2001 (joined cases C-122/99 P and C-125/99 P), where the ECJ states that the term “marriage” characterizes – according to the definitions applying in the Member States – only a partnership of two persons of different sexes. Since then, only two Member States had changed their definition of “marriage” and included also partnerships between couples of the same sex, namely Belgium and the Netherlands (remark: after the judgment had been passed,  Spain also began to allow same-sex marriages in July 2005). The court argues now that a different interpretation of the term “spouse” was only justified if there had been already a social change in the whole EU – and not only in a few Member States. According to the VG, same-sex marriages can only be recognized if the State of recognition treats them as equivalent to traditional marriages. Since this is not the case in Germany (as only a registered partnership is possible between partners of the same sex), a recognition was not possible.

This decision has been discussed affirmative by Röthel (2006) 3 IPRax, 250, who argues that there is no obligation of the Member States to recognize the personal status of a person which has been obtained in another Member State which can be derived from the fundamental freedoms.

Comment: Another decision of interest in this context is one from the Tribunal administratif du Grand-Duché de Luxembourg of 3 October 2005 (N° 19509). Here the court held - in contrast to the German court - that a same-sex marriage which has been concluded in Belgium between a Belgian and a Madagascarian has to be recognized in Luxembourg according to Art.8 of the European Convention on Human Rights - despite the fact that same-sex marriages are unknown to Luxembourgian law. 

To celebrate the 25th anniversary of the German legal journal "IPRax" (Praxis des Internationalen Privat- und Verfahrensrechts), a conference took place in Regensburg from 20th to 21st January 2006, where current questions of private international law and international civil procedure law were discussed.

A talk was given by Prof. Dr. W.-H. Roth, (Bonn) who addressed inter alia the question whether primary EU law contains conflict of law rules and whether the principle of mutual recognition can be deduced from the fundamental freedoms. Further he attended – as Prof. Dr. D. Coester-Waltjen did- to the question whether the principle of mutual recognition might be regarded as a corrective of private international law rules.

Prof. Dr. B. Hess (Heidelberg) attended to European civil procedure law and in particular to the methods of interpretation used by the ECJ. He stressed the significance of autonomous interpretation which can be regarded as the most important method of interpretation. While the importance of the comparative interpretation was decreasing, the relevance of a systematical - teleological interpretation was increasing. Further, he favoured a resumption of the ratification process concerning the European Constitution. He argued the entry into force of the Charter for Fundamental Rights would strengthen a constitutional interpretation.

Prof. Dr. S. Leible (Bayreuth) analysed in his speech the relationship between European private international law and European civil procedure rules using the example of the proposal for Rome I and Regulation 44/01/EC with regard to cross-border consumer contracts. He concluded that Rome I will create a very welcome synchronism between jurisdiction and applicable law concerning international consumer contracts.

Prof. Dr. G. Wagner (Bonn) talked about the future Rome II Regulation and drew on the one hand a comparison between the two proposals for a Rome II Regulation (Commission´s proposal and the Parliament´s proposal) and on the other hand a comparison between these proposals and autonomous German law.

And finally Prof. Dr. D. Coester-Waltjen (Munich) addressed in her speech the principle of mutual recognition – in particular in the context of family law. She discussed – after giving a definition of the term “principle of mutual recognition” - especially potential problems such as the question whether only official or also private acts could be recognized. Further, she attended to the embedding of the principle of mutual recognition in international conventions and asked whether the principle of mutual recognition can be derived from European primary or secondary law. Finally she gave guidelines how arising problems could be handled and classified the principle of mutual recognition within the context of private international law methods.

The mentioned speeches as well as short summaries of the respective discussions (in German) can be found in (2006) 4 IPRax.

In (C-96/04) Standesamt Stadt Niebüll, the ECJ negated jurisdiction to answer the question referred by the Amtsgericht Niebüll in its reference for a preliminary ruling under Art.234 EC.
The background of the case was the following: A child of two German nationals was born in Denmark. The child received – according to Danish law – a double-barrelled name composed of his father´s and mother´s surnames, who did not use a common married name. After moving to Germany, German registry offices refused to recognize the surname of the child as it had been determined in Denmark, since according to German private international law (Art.10 EGBGB) the name of a person is subject to the law of his/her nationality, i.e. in this case German law. According to German law it is not possible for a child to bear a double-barrelled name consisting of the two surnames of his/her parents.

The Standesamt (registry office) brought the matter before the Amtsgericht (Local Court) Niebüll, which decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling under Art.234 EC: “In light of the prohibition on discrimination set out in Art.12 EC and having regard to the right to the freedom of movement for every citizen of the Union laid down by Art. 18 EC, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?” To put it in different words, the question is whether the freedom of movement (Art.18 EC) guarantees the recognition of a surname which has been determined validly in another Member State. This question has been answered affirmative by Advocate General Jacobs in his opinion, but has now – due to the lack of jurisdiction – been left open by the ECJ.

The case has to be read in the context of Konstantinidis (ECJ, 30 March 1993, C-168/91) and Avello (ECJ, 2 October 2003, C-148/02) and concerns the – highly discussed – principle of mutual recognition and is therefore of high interest.

Michael Bogdan (University of Lund) has published an article on Web-Sites, Establishment and Private International Law in the King's College Law Journal (Hart Publishing). The abstract reads as follows:

An interactive website can today fulfill many of the functions of a traditional place of business with physical premises and staff, as contracts can be both entered into and performed through it. This gives rise to the question whether a website can, under certain conditions, constitute an establishment or place of business for the purposes of jurisdiction and applicable law pursuant to the EC Regulation No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters and the 1980 Rome Convention on the Law Applicable to Contractual Obligations.

Further information is available on Hart's KCLJ website.

There are several analyses and comments of recent cases, involving private international law aspects of maritime law, in the latest issue of the Journal of International Maritime Law (J.I.M.L.):

• Article 17 Brussels Convention – third party right to exclusive jurisdiction clause
  Andromeda Marine SA v OW Bunkers & Trading A/S
  [2006] EWHC 777 (Comm)
• World freezing order – undertaking to English court – no enforcement in foreign jurisdiction without the permission of English court – exercising the discretion – guidelines
  Dadourian Group International Inc and Others v Simm and Others
  [2006] 3 All ER 48 English Court of Appeal
• Brussels Convention –jurisdiction - matters relating to insurance – art 6(2) – claim by an insurer for contribution from another - French or Spanish jurisdiction
  Groupement D’Interet Economique Reunion Europeenne v Zurich Espana Socieite Pyreneenene De Transit D’Autombiles
  Case C-77/04, European Court of Justice

More information on subscribing to the journal can be found at its website.

A new book by Symeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future, is being published on August 22nd. The publisher's summary of the book is as follows:

This book is an updated and expanded version of the General Course delivered by the author at the Hague Academy of International Law in 2002. The book chronicles and evaluates the intellectual movement known as “the revolution” in American private international law. This movement began in the 1960s, caught fire in the ‘70s, spread in the ‘80s and declared victory in the ‘90s, leading to the abandonment of the centuries-old choice-of-law system, at least for torts and contracts. This book:
• explores the revolution’s philosophical and methodological underpinnings;
• provides the most comprehensive and systematic analysis of court decisions following the revolution;
• identifies the revolution’s successes and failures; and
• proposes ways and means (including a new breed of “smart” choice-of-law rules) to turn the revolution’s victory into success.

More information can be found on the publisher's website.

Giesela Ruehl (Max Planck Institute for Comparative and Private International Law) has posted Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency on SSRN. Here's the abstract:

It is commonly acknowledged that during the 20th century American and European choice-of-law theory have drifted apart: in the United States the American conflicts revolution swept the traditional vested rights theory out of the courts and the classrooms and gave way to a variety of novel approaches. In Europe, in contrast, legal systems decided to adhere to the classical concept of choice of law invented by Carl Friedrich von Savigny. However, the 20th century has not only seen transatlantic divergence. Almost unnoticed, American and European choice of law theory has developed into the same direction in one area of law: contract law. Both the Restatement (Second) of Conflict of Laws, which today is the most widely followed conflicts regime for contracts in the United States, and the EC Convention on the Law Applicable to Contractual Obligations (Rome Convention), which establishes uniform conflicts rules for virtually all of Western Europe, provide for free party choice of law.

This article looks at principle of party autonomy in Europe and the United States in more detail. It demonstrates that the trend of convergence extends beyond basic conceptual similarities and that it reaches business reality through the jurisprudence of American and European courts. However, the article does not confine the discussion of party autonomy to a comparative analysis. It also determines the underlying reasons for the convergence of American and European law by looking at the field from an economic perspective. Two basic questions are adressed: first, what is the economic rationale for granting free party choice of law? Second, can limitations of the free party choice of law such as the infringement of public policy, the evasion of mandatory law or the lack of a substantial relationship with the chosen law be justified on economic grounds? In answering these questions the article ventures the hypothesis that the trend of convergence in choice of law can be explained with the help of economic theory.

Full citation: Ruehl, Giesela, "Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency" in CONFLICT OF LAWS IN A GLOBALIZED WORLD, Eckart Gottschalk, Ralf Michaels, Giesela Rühl & Jan von Hein, eds., Cambridge University Press

Giesela Ruehl (Max Planck Institute for Comparative and Private International Law) has posted Methods and Approaches in Choice of Law: An Economic Perspective on the Social Science Research Network (SSRN). The abstract reads as follows:

After years of disregard, the law and economics movement has finally taken note of the field of choice of law. However, up until today most of the contributions have focused on specific topics – such as the applicable law in contracts, torts or product liability – and skipped the underlying fundamental issues that determine the general design of choice of law rules: (1) Should courts apply foreign law at all or should they always resort to their own law? (2) Should courts create multistate substantive law specifically designed for international transactions or should they apply the law of one of the states involved? (3) Should choice of law rules resort to the unilateral method and define the reach of forum law only or should they apply the multilateral method and determine the reach of both forum and foreign law? (4) Should courts search for material justice or rather for conflicts justice? (5) Should choice of law strive for legal certainty or rather for flexibility? This article provides a comparative overview as well as an economic analysis of the answers legal scholarship has provided to these questions over time and across countries. It argues that courts should (1) be open towards application of foreign law, (2) apply the law of one of the states involved (3) determine the reach of both foreign and forum law, (4) strive for conflicts justice, and (5) apply rules instead of standards.

Full citation: Ruehl, Giesela, "Methods and Approaches in Choice of Law: An Economic Perspective" Berkeley Journal of International Law, Vol. 24, 2006.

• Maccaba v Lictenstein [2006] EWHC 1901 (QB)

The court held that, for there to be an arbitration agreement, there had to be an agreement evidenced in writing between the two prospective parties to the arbitration. In the instant case, no such enforceable agreement as argued for by the applicant had been proved on the evidence placed before the court.

• D. Stringer, "Choice of Law and Choice of Forum in Brazilian International Commercial Contracts: Party Autonomy, International Jurisdiction, and the Emerging Third Way" (2006) 44 Columbia Journal of Transnational Law 951-999.