Characterisation of Breach of Confidence as a Privacy Tort in Private International Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Michael Douglas
Keyword(s):  
International Law ◽  
Private Information ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Unique Character ◽  
The Way

Certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law, in respect of rules of jurisdiction and choice of law. When a breach of confidence involves a misuse of private information, a tortious characterisation is appropriate. This view is consistent with appellate authority recognising the unique character of equitable jurisdiction. The article begins by considering debates concerning the juridical basis of breach of confidence, and its metamorphosis into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.

scholarly journals A NEW SOLUTION CONCERNING CHOICE-OF-LAW FOR THE ASSIGNMENT OF DEBTS

2021 ◽  
Vol 70 (3) ◽  
pp. 665-696
Author(s):  
Alison Xu
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Use Value ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Exchange Value

AbstractThis article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

Choice of Law Methods in the Private International Law of Contract

1979 ◽  
Vol 16 ◽  
pp. 230-275 ◽  
Author(s):  
Joost Blom
Keyword(s):  
International Law ◽  
Social Regulation ◽  
Private International Law ◽  
Choice Of Law ◽  
Legitimate Concern ◽  
Private Autonomy ◽  
The Way

For anyone who is interested in the methodology of choice of law, no field is more rewarding than that of contracts. As domestic laws of contracts develop a progressively more intricate relationship between the principles of social regulation and private autonomy, private international law is led to develop choice of law techniques that will keep an appropriate balance between these principles in interjurisdictional cases. Choice of law rules that underemphasize the interests of the parties, and rely instead on the regulatory concerns of states that are affected by the transaction, may place too many obstacles in the way of persons who should be left to arrange their transaction in the way they think best. At the same time, choice of law rules that give too much weight to the parties’ wishes may interfere unduly with a state’s ability to regulate a transtaction with which it has a legitimate concern. In this respect, balance is more difficult to achieve in contracts than it is elsewhere.

Cross-border Insolvency

2017 ◽  
Author(s):  
Hamish Anderson
Keyword(s):  
International Law ◽  
Private International Law ◽  
Insolvency Law ◽  
Choice Of Law ◽  
Cross Border ◽  
General Law ◽  
Insolvency Proceedings

In the practice of insolvency law, the usual challenge is to work out the answer to a problem as a matter of general law and then to factor in the consequences of one or more of the parties being insolvent. In cross-border insolvency cases, this exercise can be made considerably more complicated by choice of law issues. Ultimately, cross-border insolvency questions are all questions of private international law which are determined in accordance with specific rules where applicable or otherwise in accordance with general principles. The aims are to recognize properly grounded foreign insolvency proceedings, to act in aid of them where appropriate, to ensure that English proceedings will achieve extra-territorial recognition where necessary, and thereby to achieve fairness for all creditors everywhere by avoiding conflicts and confusions between jurisdictions.

The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation

1998 ◽  
Vol 47 (1) ◽  
pp. 3-49
Author(s):  
Campbell McLachlan
Keyword(s):  
International Law ◽  
Banking System ◽  
Private International Law ◽  
International Banking ◽  
Functional Responses ◽  
Modern Approach ◽  
International Context ◽  
Choice Of Law ◽  
Cross Border ◽  
Run Up

A modern approach to private international law must deal adequately with three overall concerns. First, it must provide functional responses to the modern international context of trade and commerce in which cross-border problems arise. Second, it must provide effective and fair remedies in civil disputes when those disputes spill over national borders. Third, it must resolve the otherwise irreconcilable conflicts between national legal systems—not as an end in itself or solely as a means of finding comity among nations, but in order to do substantial justice between the private litigants involved. As Dicey had it in the choice of law context, this “does not arise from the desire of the sovereign of England or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.” It is the burden of this article to examine the way in which the English courts have sought to work out these three general functions in the context of developing rules that govern the ambit of interlocutory orders to disclose and trace the proceeds of fraud internationally. Having identified the problems of abuse presented by the new opportunities of the international banking system, the courts have been quick to innovate in developing new remedies. But just as quickly they have run up against the boundaries of such remedies, both in granting orders themselves and in reacting to foreign orders.

V The Foreign Element and Party Autonomy in Negotiable Instruments Law

2020 ◽  
Author(s):  
Geva Benjamin ◽  
Peari Sagi
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Cross Border ◽  
Electronic Transactions ◽  
Governing Principle

This chapter addresses two trends developing within the choice-of-law doctrine: the relaxation of the ‘foreign element’ requirement and the advances of the party autonomy principle. Chapter III has pointed to the advancing phenomenon of the increasing rate of cross-border commerce, electronic transactions, and scholarly writings as the reasons for a significant relaxation, or even elimination of the ‘foreign element’ requirement. The traditional presence of this element within the factual basis of any given case can be observed in almost every case of contemporary litigation. This suggests that most situations can be classified as private international law cases that would benefit from choice-of-law analysis. The chapter then considers a series of propositions for the introduction of the party autonomy principle as a governing principle of choice-of-law cases of negotiable instruments.

Part II Preliminary Topics, 4 The Incidental Question

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Essential Elements ◽  
Main Issue ◽  
Main Question ◽  
Private International Law ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Way

This chapter examines the issue of incidental question from a choice of law perspective. A case involving private international law may place a subsidiary issue, as well as a main question, before the court. The main issue should, under the English rules of private international law, be governed by a foreign law. This chapter first explains what an incidental question is before discussing its essential elements. It then considers two cases that illustrate the way in which an incidental question arises: Lawrence v Lawrence in England and Schwebel v Ungar in Canada. It also proposes a coherent and predictable approach for dealing with the incidental question and concludes with an overview of a problem related to that of the incidental question — dépeçage or ‘picking and choosing’.

scholarly journals FORMA CZYNNOŚCI PRAWNEJ W PRAWIE PRYWATNYM MIĘDZYNARODOWYM

2017 ◽  
Vol 5 (2) ◽  
pp. 67
Author(s):  
Jadwiga Pazdan
Keyword(s):  
International Law ◽  
Decisive Role ◽  
Legal Action ◽  
Private International Law ◽  
Choice Of Law ◽  
Mutual Relation ◽  
The Law ◽  
Polish Law ◽  
Contractual Relation ◽  
The Way

Form of Legal Act in Private International LawSummaryThe form of a legal act in private international law is usually governed by particular conflict rules. Such provisions define the scope of their application. The aim of conflict rules is to indicate territorial application of different legal systems. That function fixes the approach while determining the way of understanding the notion of a „form” in private international law. The appropriate approach is the autonomic qualification. That is why I admit that the form in private international law is nothing else that the way of submission and incorporation of the declaration of will, being a component of a legal act.According to art. 12 of Polish Act on private international law from 1965 (1965 Act), the form of a legal act is governed by the law proper for that act (the first rule), however, it is sufficient to fulfill the conditions of the law of the country where the legal act is undertaken (the second rule).Lex causa, relevant to the form of a legal act (art. 12 section 1 of 1965 Act), may be indicated not only by means of conflict rules based on objective factors of alien, but also by the choice-of-law clause (if a choice of law is not forbidden). Nevertheless, a choice of law regarding solely the form of a legal act is not acceptable. The choice of law for the form of a legal act cannot be justified by the permissibility of a partial choice of law, which is supposed to be a choice relative to that part of legis causae, which is taken into consideration while determining the conditions required for the form of a particular legal act, on the base of art. 12 section 1 1965 Act. Although, there is no fragment of the legis causae applied in the scope of the form, there is complete lex causae or divided into segments (in the case of a complex or simple choice of law). The form cannot constitute such a segment. It has its own status.The second rule is subsidiary to the first one.The mutual relation of these two rules has subsequent consequences: 1 lex loci actus may be applied only when the conditions of lex causae were not fulfilled;2 the answer to the question if the legis loci actus constitutes the proper law for the form of a legal act is dependent on the fact whether during the performance of the legal act the requirements resulting from that law were fulfilled;3 when the conditions regulated by both lex causae as well as lex loci actus were not fulfilled, it is to lex causae to decide about the consequences (sanctions) of non-fulfillment of the requirements relating to the form;4 lex loci actus cannot be replaced by the Polish law by the virtue of art. 7 of 1965 Act, when the content of the law binding on the territory where the legal action was undertaken cannot be determined;5 the transmission and remission, based on the conflict rules binding in that country where the legal act was undertaken, is not allowed;6 the requirements of legis loci actus are also fulfilled when there are no special requirements relating to the form. The legal act will be valid in such a situation although the requirements relating to the form, resulting of lex causae, were not fulfilled.The place where the legal act is performed understood as the factor of alien in art. 12 section 2 of 1965 Act must be interpreted in the light of autonomic qualification. The decisive role should be granted to the place where an event which brought (or should have brought) to the performance of a legal act had happened while the contractual relation has been formed.De lege ferenda, I am opting for the maintenance of both rules in Polish law, however, their position should be equal. In case of discrepancy of the effects the preference should be granted to those more favorable for the legal act (the solution in favorem negotii).

Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (U.S. Sup. Ct.)

2020 ◽  
Vol 59 (1) ◽  
pp. 1-10 ◽  
Author(s):  
Christopher A. Whytock
Keyword(s):  
International Law ◽  
Private International Law ◽  
Animal Science ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Foreign Law ◽  
Domestic Courts ◽  
The Way

Domestic courts frequently apply foreign law. For example, the forum's choice-of-law rules may require a court to apply foreign law, or a party may expressly base a claim or defense on foreign law. Private international law (or “conflict of laws”) provides principles governing many aspects of the way courts should identify and interpret foreign law.

scholarly journals Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?

2021 ◽  
Author(s):  
Irit Mevorach
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Normative Framework ◽  
New Instrument ◽  
Enterprise Groups ◽  
Model Law ◽  
Insolvency Proceedings ◽  
International Instruments

AbstractIn recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

Diversity and Integration in Private International Law

2019 ◽  
Keyword(s):  
South America ◽  
International Law ◽  
Value Systems ◽  
Private International Law ◽  
Diverse Range ◽  
Cross Border ◽  
Wide Range ◽  
Depth Analysis ◽  
And Shifts ◽  
Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

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