Advanced Introduction to Private International Law and Procedure

Litigating disputes in international civil and commercial cases presents special challenges, including jurisdiction, law, and enforcement. This second edition Advanced Introduction provides a concise overview of the field.

Format: Paperback / softback
Length: 178 pages
Publication date: 18 July 2023
Publisher: Edward Elgar Publishing Ltd

Litigating disputes in international civil and commercial cases presents a multitude of unique challenges. Determining which country's courts have jurisdiction and where it is strategically advantageous to initiate a lawsuit is a crucial aspect. Given the transnational nature of the case, the question arises as to which country's law will the court apply. Furthermore, if a successful plaintiff encounters difficulties in locating sufficient local assets to satisfy the judgment, what steps must be taken to ensure the enforcement of the judgment in a country with assets? This extensively revised and updated second edition, Advanced Introduction, provides a comprehensive overview of these critical topics, offering a concise yet comprehensive guide to the field.

The jurisdiction of foreign courts in international civil and commercial cases is a complex and multifaceted issue. In general, foreign courts may exercise jurisdiction over parties who have a sufficient connection to their jurisdiction, such as through their physical presence, business activities, or contractual relationships. However, the specific circumstances of each case will determine whether a foreign court has jurisdiction.

One of the key considerations in determining jurisdiction is whether the dispute falls within the scope of a treaty or other international agreement. Treaties often establish the jurisdiction of foreign courts and specify the conditions under which they may exercise jurisdiction. For example, a treaty may provide that a foreign court has jurisdiction over disputes arising from a contract that is governed by the treaty's provisions.

Another factor that may influence jurisdiction is the nationality of the parties involved. In some cases, foreign courts may have jurisdiction over parties who are nationals of their jurisdiction or who have a significant connection to their jurisdiction. For example, a foreign court may have jurisdiction over a company that is incorporated in its jurisdiction or has its principal place of business in its jurisdiction.

The location of the assets is also an important consideration in determining jurisdiction. If the assets are located in a foreign country, a foreign court may have jurisdiction over the dispute if it has a sufficient connection to the foreign country. For example, if the assets are held in a bank account in a foreign country, a foreign court may have jurisdiction over the dispute if the bank account is used for business activities in the foreign country.

In addition to the foregoing factors, the choice of forum may also be influenced by considerations such as the speed and cost of litigation, the availability of evidence, and the cultural and legal differences between the countries involved. For example, a party may choose to litigate in a foreign country if it believes that the court system is more favorable to its interests or if it is easier to obtain evidence in that country.

Once a foreign court has jurisdiction over a dispute, it must apply the law of that country to the facts of the case. The law of the country may be different from the law of the jurisdiction where the dispute originated, which can create complexities and challenges for the parties involved. In some cases, the foreign court may apply its own law, or it may apply the law of a third country that has a significant connection to the dispute.

Enforcing a foreign judgment in a country with assets can be a complex and challenging process. In some cases, the foreign country may refuse to recognize or enforce the judgment, citing various reasons such as sovereign immunity, lack of jurisdiction, or procedural defects. In such cases, the successful plaintiff may need to pursue alternative enforcement mechanisms, such as diplomatic measures or international arbitration.

Diplomatic measures involve engaging in negotiations with the foreign country to persuade it to recognize and enforce the judgment. This can involve sending diplomatic notes or letters, engaging in bilateral or multilateral negotiations, or seeking assistance from international organizations such as the United Nations or the World Bank.

International arbitration is another mechanism for enforcing foreign judgments. Arbitration is a private process in which an independent arbitrator hears the parties' arguments and makes a decision based on the law and the evidence presented. Arbitration is often used in international commercial disputes because it is faster and less expensive than litigation, and it provides a more flexible and confidential resolution process.

In conclusion, litigating disputes in international civil and commercial cases presents a number of special challenges. Determining which country's courts have jurisdiction and where it is advantageous to sue is a crucial aspect. Given the international elements of the case, determining which country's law will the court apply is a critical consideration. Finally, if a successful plaintiff cannot find enough local assets to satisfy the judgment, what steps must be taken to ensure the enforcement of the judgment in a country with assets? This extensively revised and updated second edition, Advanced Introduction, provides a comprehensive overview of these critical topics, offering a concise yet comprehensive guide to the field.

Dimension: 216 x 138 (mm)
ISBN-13: 9781803928876
Edition number: 2 ed