International Commercial Litigation: Text, Cases and Materials on Private International Law

962 Pages·2009·2.9 MB·English

by  Trevor C. Hartley

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International Commercial Litigation
This carefully structured, practice-orientated textbook provides everything the law
student needs to know about international commercial litigation.
The strong comparative component provides a thought-provoking international
perspective, while at the same time allowing readers to gain unique insights into
litigation in English courts. Three important themes of the book analyse how the
international element may call into question the power of the court to hear the case,
whether it should exercise this power, whether foreign law applies, and whether the
court should take into account any foreign judgment.
Hartley provides the reader with extracts from leading cases and relevant legislation,
together with an extensive reference library of further reading for those who wish to
explore the topic in more detail, making this a valuable, single-source textbook.
International commercial litigation is an area where the law changes fast. To
keep the book up to date, new material will be posted on the book’s website,
www.cambridge.org/thartley/. This will cover both cases and legislation.
Trevor C. Hartley is Professor of Law Emeritus at the London School of Economics,
where he specializes in private international law and European Community law.

International
Commercial Litigation
Text, Cases and Materials on Private
International Law
Trevor C. Hartley
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521868075
© Trevor C. Hartley 2009
This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009
ISBN-13 978-0-511-65123-6 eBook (NetLibrary)
ISBN-13 978-0-521-86807-5 Hardback
ISBN-13 978-0-521-68748-5 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Law is made for man, not man for the law.
I have taken this epigraph as the motto of my book. It is not clear
where it comes from: a Google search suggests various possibilities,
including Jesus and St Paul. No matter who said it fi rst, it expresses
better than anything else the approach I take. The same idea was
advanced, less pithily and more mundanely, by the Supreme Court
of Canada in 2006, in Pro Swing v. Elta Golf, when Deschamps J said,
‘The law and the justice system are servants of society, not the
reverse.’ That is what I believe too.

Contents
Table of panels xxv
List of fi gures xxix
Preface xxxi
Acknowledgments xxxiii
Terminology xxxv
Table of Latin phrases xxxvi
List of abbreviations xxxvii
Table of cases xxxviii
Table of cases (European Court of Justice, numerical order) lxiii
Table of legislative instruments lxvii
PART I STARTING OFF 1
1 Introduction 3
1 Private international law 3
2 Names and what they mean 3
3 What is it based on? 5
4 International uniformity of result: a grand objective? 5
PART II JURISDICTION 9
2 Jurisdiction: an analysis 11
1 What is jurisdiction? 11
2 Jurisdiction in personam 12
3 Jurisdiction in rem 12
4 Objectives 12
4.1 Confl icting judgments 13
4.2 Enforcement 13
4.3 Keeping the parties to their agreements 14
4.4 Wasting time and resources 14
4.5 Offending foreign States 14
4.6 Fairness to the defendant 14
4.7 Countervailing considerations 15
5 Principles of jurisdiction in personam 15
vii
viii CONTENTS
6 Principles of jurisdiction in rem 16
Further reading 17
3 Jurisdiction under EC law 18
1 Background 18
2 Origin of the Brussels I Regulation 19
3 The Lugano Convention 20
4 Basic principles 21
5 Defendants from third countries 22
6 Domicile 24
6.1 Area of domicile 24
6.2 Domicile of natural persons (individuals) 25
6.3 United Kingdom rules of domicile (individuals) 25
6.4 Domicile of legal persons (corporations) 27
6.5 The role of domicile 28
7 Jurisdiction irrespective of domicile 29
8 Which instrument applies? 29
9 Subject-matter scope 30
9.1 What law decides? 31
LTU v. Eurocontrol 31
9.2 Applying the test 34
Netherlands v. Rüffer 34
Baten 36
Further reading 38
General works on the Brussels Convention, the Brussels
Regulation and the Lugano Convention 39
4 EC law: special jurisdiction 40
1 Article 5 40
1.1 Contracts 40
1.1.1 When does a claim relate to contract? 41
Handte v. TMCS 41
1.1.2 The place of performance 45
Tessili v. Dunlop 45
1.1.3 The obligation in question 47
1.1.4 The revised version of Article 5(1) 48
Color Drack v. LEXX International 48
1.1.5 Contracts not covered by Article 5(1) 52
1.2 Tort 52
Bier v. Mines de Potasse d’Alsace 53
Marinari v. Lloyds Bank 55
1.3 Branches, agencies and other establishments 57
1.3.1 What constitutes a branch, agency or other establish-
ment? 57
1.3.2 What disputes are covered? 58