CiNii 図書 - International commercial disputes : commercial conflict of laws in English courts

This is the fourth edition of this highly regarded work on the law of international commercial litigation as practised in the English courts. As such it is primarily concerned with how commercial disputes which have connections with more than one country are dealt with by the English courts. Much of the law which provides the framework for the resolution of such disputes is derived from international instruments, including recent Conventions and Regulations which have significantly re-shaped the law in the European Union. The scope and impact of these European instruments is fully explained and assessed in this new edition. The work is organised in four parts. The first part considers the jurisdiction of the English courts and the recognition and enforcement in England of judgments granted by the courts of other countries. This part of the work, which involves analysis of both the Brussels I Regulation and the so-called traditional rules, includes chapters dealing with jurisdiction in personam and in rem, anti-suit injunctions and provisional measures. The work's second part focuses on the rules which determine whether English law or the law of another country is applicable to a given situation. The part includes a discussion of choice of law in contract and tort, with particular attention being devoted to the recent Rome I and Rome II Regulations. The third part of the work includes three new chapters on international aspects of insolvency (in particular, under the EC Insolvency Regulation) and the final part focuses on an analysis of legal aspects of international commercial arbitration. In particular, this part examines: the powers of the English courts to support or supervise an arbitration; the effect of an arbitration agreement on the jurisdiction of the English courts; the law which governs an arbitration agreement and the parties' dispute; and, the recognition and enforcement of foreign arbitration awards.

Chapter 1 - Introduction 1.1 Preliminary Remarks 1.2 Jurisdiction and the Recognition and Enforcement of Foreign Judgments Basic Concepts The Traditional Regime The Brussels I Regulation Jurisdiction and the Recognition and Enforcements of Judgments with in the United Kingdom Subsequent Developments 1.3 Choice of Law Part I: Jurisdiction and the Recognition and Enforcement of Foreign Judgments Chapter 2 - Persons who Can and Cannot Sue or be Sued 2.1 Legal Capacity to Sue or Be Sued Foreign Corporations Other Foreign Juristic Entities Corporations Established under the Laws of Territories which are not States International Corporations Foreign States Foreign Governments 2.2 Persons who Cannot Sue and Non-justiciable Claims Enemy Aliens Non-justiciable Claims 2.3 State Immunity Background The Scope of Immunities The Scheme of the Act Immunity from Adjudicative Jurisdiction Immunity from Enforcement Jurisdiction Service of Process in Proceedings against States Judgments in Default 2.4 Diplomatic Immunity Diplomatic Officers Consular Agents 2.5 International Organisations Chapter 3 - The Brussels I Regulation: General Considerations 3.1 Introduction 3.2 Interpretation of the Brussels I Regulation References to the Court of Justice Methods of Interpretation Interpretation by National Courts 3.3 Scope of the Brussels I Regulation Introductory Remarks Civil and Commercial Matters Exceptions 3.4 The Relationship between the Brussels I Regulation and Other International Conventions Chapter 4 - Jurisdiction in Personam under the Brussels I Regulation: Introduction 4.1 Domicile under the Brussels I Regulation The Domicile of Individuals The Domicile of Corporations Multiple Domiciles 4.2 The Basic Structure of the Jurisdiction Rules Bases of Jurisdiction Applicable to Defendants Domiciled in a Member State: Articles 2 and 3 Bases of Jurisdiction Applicable to Persons who are not Domiciled in a Member State: Article 4 Lis Pendens and Related Actions The Standard of Proof 4.3 Service Abroad in Cases Falling within the Scope of the Brussels I Regulation 4.4 Procedural Safeguards Chapter 5 - Bases of Jurisdiction In Personam under the Brussels I Regulation 5.1 Exclusive Jurisdictions Paragraph (1) Paragraph (2): Corporations Paragraph (3): Public Registers Paragraph (4): Intellectual Property Paragraph (5): Enforcement Proceedings Examination of Jurisdiction 5.2 Submission 5.3 Jurisdiction Agreements Preliminary Considerations Basic Conditions Formal Requirements Maternal Validity and Interpretation Situation where Jurisdiction is not Exclusive 5.4 Provisional Measures 5.5 The Domicile Rule: Article 2 5.6 Alternative Fora I: Article 5 Introduction Jurisdiction in Matters Relating to Contract and Tort: Introduction Jurisdiction in Matters Relating to a Contract Jurisdiction in Matters Relating to Tort Branch, Agency or Other Establishment Trusts 5.7 Alternative Fora II: Article 6 Introduction Multiple Defendants Third Party Proceedings Counterclaims Contractual Claims Involving Matters Relating to Rights in Rem in Immovable Property Article 6 and Jurisdiction Agreements 5.8 Insurance, Consumer Contracts and Employment Contracts Insurance Consumer Contracts Jurisdiction in Relation to Employment Contracts Chapter 6 - Bases of Jurisdiction in Personam under Schedule 4 to the Civil Jurisdiction and Judgments Act 1982 6.1 Jurisdiction in Civil and Commercial Matters: Schedule 4 to the 1982 Act The Scope of Schedule 4 The Text of Schedule 4 Interpretation 6.2 Bases of Jurisdiction under Schedule 4 Exclusive Jurisdiction Prorogation of Jurisdiction Jurisdiction Agreements Special Jurisdiction Consumer Contracts and Individual Contracts of Employment Procedural Matters and Provisional Measures Chapter 7 - Bases of Jurisdiction in Personam under Traditional Rules 7.1 Presence Individuals Companies Partnerships Staying Proceedings Founded on the Defendant's Presence 7.2 Submission Jurisdiction Agreements Agreements to Submit Voluntary Appearance 7.3 Service out of the Jurisdiction under CPR 6.36 Introduction A Serious Question to be Tried The Heads of CPR PD 6B para 3.1 Forum Conveniens The Test Chapter 8 - Bases of Jurisdiction in Admiralty Proceedings 8.1 Jurisdiction under the Supreme Court Act 1981 The Admiralty Jurisdiction of the High Court: Section 20 Jurisdiction in Rem: Section 21 (2)-(8) Jurisdiction in Actions In Personam: Section 21(1) and Section 22 Commencing Admiralty Proceedings 8.2 The Impact of the Brussels I Regulation Introduction The Practical Effect of the Brussels I Regulation Limitation and Salvage Chapter 9 - Declining Jurisdiction and Staying Proceedings 9.1 Declining Jurisdiction and Staying Proceedings under the Brussels I Regulation General Considerations Lis Pendens Related Actions Rival Exclusive Jurisdictions Concurrent Proceedings within the United Kingdom 9.2 Staying Proceedings on the Basis of the Doctrine of Forum non Conveniens Forum Shopping The Development of English Law The Test of Appropriateness The Application of the Test: Factors to be Taken into Account The Weighing of Factors Appeals Against the Exercise of Discretion 9.3 The Impact of a Jurisdiction Clause The Traditional Rules The Hague Choice of Court Convention 9.4 Jurisdiction in Cases Involving Foreign Land and Foreign Intellectual Property Rights Cases Involving Foreign Land Cases Involving Foreign Intellectual Property Rights 9.5 Staying Proceedings under the Court's Inherent Jurisdiction in Cases Involving the Brussels I Regulation Introduction Cases where Jurisdiction is Founded on the Traditional Rules Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Member State Cases where Jurisdiction is Founded on Chapter II and the Alternative Forum is a Non-Member State Cases Involving Schedule 4 to the 1982 Act Chapter 10 - Provisional Measures 10.1 Different Types of Provisional Measure Introduction Interlocutory Injunctions Freezing Injunctions Search Orders 10.2 Jurisdiction to Grant Provisional Measures: Proceedings in Rem 10.3 Jurisdiction to Grant Provisional Measures: Proceedings in Personam Background: The Position at Common Law Jurisdiction to Grant Provisional Measures in Support of Foreign Proceedings Jurisdiction to Grant Provisional Measures in Support of Arbitration Proceedings 10.4 Extraterritorial Provisional Measures Introduction Extraterritorial Freezing Injunctions 10.5 Enforcement of Foreign Provisional Measures Chapter 11 - Anti-suit Injunctions 11.1 Preliminary Remarks 11.2 The Bases on Which an Anti-suit Injunction May Be Granted Unconscionable Conduct Infringement of a Legal or Equitable Right 11.3 The Brussels I Regulation Chapter 12 - Recognition and Enforcement of Foreign Judgments under the Common Law and under Related Statutory Regimes 12.1 Introduction Why Recognise Foreign Judgments? Which Foreign Judgments Should be Entitled to Recognition and Enforcement? 12.2 Conditions for Enforcement at Common Law The Jurisdiction of the Original Court Final and Conclusive For a Fixed Sum 12.3 Conditions for Recognition at Common Law Introduction On the Merits Identity of the Parties Identity of the Cause of Action or Issue 12.4 Defences to Recognition and Enforcement at Common Law Natural Justice Fraud Public Policy Res Judicata Civil Jurisdiction and Judgments Act 1982, Section 32 Multiple Damages 12.5 Recognition and Enforcement of Judgments in Rem Jurisdiction of the Original Court Defences Enforcement 12.6 Recognition and Enforcement under Statutory Regimes Based on the Common Law Enforcement under Part II of the Administration of Justice Act 1920 Recognition and Enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933 Chapter 13 - Recognition and Enforcement of Judgments under the Brussels I Regulation, Judgments against States and European Community Judgments 13.1 Basic Conditions for Recognition and Enforcement under the Brussels I Regulation The Scope of the Brussels I Regulation What is a 'Judgment'? The Relationship between Chapter II and Chapter III 13.2 The Principle of Automatic Recognition under the Brussels I Regulation 13.3 Defences to Recognition under the Brussels I Regulation No Review of the Merits Limited Review of Jurisdiction Public Policy Safeguarding the Rights of the Defendant Irreconcilability Appeals in the State of Origin What is an 'Ordinary Appeal'? 13.4 Enforcement of Judgments under the Brussels I Regulation Introduction Application for Enforcement The Decision Appeals against Enforcement Appeals Against a Refusal to Enforce The Relationship between National Law and Chapter III 13.5 Authentic Instruments and Court Settlements under the Brussels I Regulation Authentic Instruments Court Settlements Grounds for Refusing Enforcement 13.6 Recognition and Enforcement of Judgments within the United Kingdom Introduction Recognition Enforcement 13.7 Judgments against States and European Community Judgments Recognition of Judgments Given against the United Kingdom Recognition of Enforcement of Judgments Given against Other States European Community Judgments Part II: Choice of Law Chapter 14 - Choice of Law in Contract 14.1 Introduction The Common Law The Rome I Regulation The Scope of the Rome I Regulation Exclusion of the Doctrine of Renvoi 14.2 Determining the Applicable Law The Applicable Law in Cases of Choice The Applicable Law in the Absence of Choice 14.3 Mandatory Rules and Public Policy Introduction The Application of Mandatory Rules The Application of Overriding Rules Public Policy: Article 21 14.4 Particular Aspects of the Contract Preliminary Remarks Consent and Material Validity: Article 10 Formal Validity: Article 11 Capacity Performance Interpretation Discharge Nullity Illegality Remedies 14.5 Particular Contracts Contracts of Carriage Certain Consumer Contracts Insurance Contracts Individual Employment Contracts 14.6 Miscellaneous Provisions Voluntary Assignment and Contractual Subrogation Legal Subrogation Multiple Liability Set-off Chapter 15 - Choice of Law: Non-contractual Obligations 15.1 The Rome II Regulation Background of Events Leading to the Rome II Regulation General Overview of the Rome II Regulation Choice of Law Rules for Tort Choice of Law Rules for Other Non-contractual Obligations Other Provisions 15.2 Choice of Law in Tort: Common Law Rules Background to the English Choice of Law Rules The Modern Common Law Position 15.3 Choice of Law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995 Introduction The General Rule The Exception The Scope of the Applicable Law: Substance and Procedure Public Policy and Overriding Rules 15.4 Parallel Claims and the Potential Interaction of Contract and Tort Choice of Law Rules Parallel Claims The Potential Interaction of Contract and Choice of Law Rules Chapter 16 - Proof of Foreign Law 16.1 Foreign Law: A Question of Fact 16.2 Cases in which Foreign Law Does not Have to be Proved 16.3 Mode of Proof The Requirement of Evidence Uncontradicted Evidence Conflicting Evidence Who is an Expert? Decision on Points of Foreign Law in Subsequent Cases 16.4 Appeals Chapter 17 - EC Regulation on Insolvency Proceedings 17.1 Scope of the Insolvency Regulation General Exclusions Insolvency-related Proceedings Intra-UK Insolvencies 17.2 Jurisdiction Two Sets of Conflicting Doctrines Main Proceedings Territorial Proceedings 17.3 Choice of Law General Rule Exceptions 17.4 Recognition and Enforcement General Powers of the Liquidator 17.5 Miscellaneous The 'Hotchpot' Rule Publication of Insolvency Proceedings Creditors' Right to Lodge Claims and to Receive Information Chapter 18 - International Insolvencies Falling Outside the EC Insolvency Regulation 18.1 Personal Insolvency/Bankruptcy Jurisdiction Choice of Law Effects of an English Bankruptcy Order Recognition Concurrent Proceedings 18.2 Corporate Insolvency Jurisdiction Choice of Law Effects of an English Winding-up Order Recognition Concurrent Liquidations 18.3 Judicial Co-operation Re HIH Casualty and General Insurance Ltd Chapter 19 - The Cross-Border Insolvency Regulations 2006 19.1 Introduction 19.2 General Scope Allocation of Jurisdiction between Courts in Great Britain Co-operation between Courts in Great Britain Inter-relationship between the Model Law and other International Instruments British Insolvency Officeholder Acting Abroad 19.3 Access of Foreign Representatives and Creditors to English Courts 19.4 Recognition of a Foreign Proceeding Relief Available upon the Application for Recognition of a Foreign Proceeding Effects of Recognition of a Foreign Main Proceeding Relief Available upon the Recognition of a Foreign Proceeding Protection of Creditors and Other Interested Persons Avoidance 19.5 Co-operation with Foreign Courts and Foreign Representatives 19.6 Concurrent Proceedings 19.7 Conclusion and Overview Part III: Arbitration Chapter 20 - Arbitration: Introduction 20.1 What is Arbitration Law? 20.2 Various Types of Arbitration Domestic and International Ad Hoc and Institutional Specialised Arbitrations 20.3 Trends in International Commercial Arbitration Encouragement Harmonisation 20.4 Outline of English Arbitration Law The Foundations of Arbitration: the Arbitration Agreement The Powers of the Tribunal The Powers of the Court Chapter 21 - The Agreement to Arbitrate 21.1 The Law Governing the Arbitration Agreement 21.2 Enforcement of the Agreement to Arbitrate Introduction Conditions for the Grant of a Stay under Section 9 The Effect of a Stay under Section 9 Inherent Jurisdiction Chapter 22 - The Law Governing the Conduct of an Arbitration and the Scope of the Court's Powers 22.1 Introduction Preliminary Remarks The 'Delocalisation' Theory The Importance of the Seat of Abritration 22.2 The Scope of the Statutory Provisions: General Principles 22.3 The Scope of the Statutory Provisions: Cases where the Seat of Arbitration Is in England Introduction Internal Aspects of the Procedure External Aspects of the Procedure 22.4 Scope of the Statutory Provisions: Cases where the Seat is Abroad or no Seat Has Been Designated or Determined 22.5 Jurisdiction in Proceedings Ancillary to an Arbitration Chapter 23 - The Law Applicable to the Merits of a Dispute Referred to Arbitration 23.1 Introduction Types of Choice of Law Clause Legal Background 23.2 The Position under the 1996 Act Section 46 of the 1996 Act The Exclusion of Section 46 The Three Circumstances Envisaged by Section 46 Cases where the Arbitrator Misapplies Section 46 The Impact of Mandatory Rules Chapter 24 - Recognition and Enforcement of Arbitration Awards 24.1 Preliminary Issues The Relationship between Enforcement and Setting Aside The Enforcement of Domestic Awards The Enforcement of Foreign Aribtration Awards 24.2 Recognition and Enforcement of Foreign Awards under Part III of the Arbitration Act 1996 The Scope of Part III of the 1996 Act Conditions for Obtaining Recognition or Enforcement Grounds for Refusing Recognition or Enforcement Discretion to Adjourn the Decision on Recognition or Enforcement 24.3 Recognition and Enforcement of Foreign Awards at Common Law The Relationship between the Arbitration Act 1996 and the Common Law Methods of Enforcement Conditions for Recognition or Enforcement at Common Law Defences at Common Law 24.4 Recognition and Enforcement of Foreign Awards under Part II of the Arbitration Act 1950 The Relationship between Part II of the 1950 Act and Other Regimes Conditions for Recognition and Enforcement Defences to Enforcement 24.5 Other Regimes for the Recognition and Enforcement of Foreign Arbitral Awards Part II of the Civil Jurisdiction and Judgments Act 1982 Part II of the Administration of Justice Act 1920 Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 Arbitration (International Investment Disputes) Act 1966 Recognition of Awards Made by the Iran-US Claims Tribunal 24.6 Awards, Judgments and the Cause of Action Confl icting Judgments and Awards The Effect of a Foreign Judgment on the Award The Effect of a Foreign Arbitral Award on the Cause of Action

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International commercial disputes : commercial conflict of laws in English courts

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