Adjudicatory Authority in Private International Law (The by Mehren, A.T. von

By Mehren, A.T. von

This publication is a revised and multiplied model of the final direction introduced through the writer on the Hague Academy of overseas legislation in 1996. It comprises 3 components that debate concept and perform of adjudicatory authority in deepest overseas legislation in comparative viewpoint concentrating on the us, Germany and the eu Union. the 1st half examines the rules and emergence of jurisdictional idea elaborating at the kinds of adjudicatory authority and the layout of jurisdictional provisions. half covers uncomplicated issues and pervasive concerns reflecting, inter alia, at the actor sequitor discussion board rei precept, selection of discussion board agreements, discussion board non conveniens, antisuit injunctions and the lis pendens doctrine. The final half explores the function of foreign tools for attaining convergence and harmonization. It analyzes the layout of judgments conventions and particularly the efforts of the Hague convention on deepest foreign legislation to foster around the world harmonization.

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8 Prior thereto, although the desire for a harmonious interpretation was expressed in the Conven- 5 6 7 8 E. Scoles, P. Hay, P. Borchers and S. 6, p. 17 (St. , 2004). [1980] OJ L 266, 1. See the Report on the Convention on the law applicable to contractual obligations by Mario Giuliano and Paul Lagarde (Giuliano/Lagarde-Report), [1980] OJ C 282, 1-50. The First and the Second Protocol on the Interpretation of the 1980 Convention were inoperative for well over a decade after the entry into force of the Convention itself.

If they adhere strictly to their theoretical premise, relational theories face difficulties that are avoided by instrumental and strict power theories. Where one party has a social, political, or economic relationship to the forum but the other party has none, can it be said that the forum has adjudicatory authority over both? Strictly conceived, adjudicatory authority resting on a relationship reaches only to the party or parties that stand in the relevant relationship to the adjudicator. 18 Adherence to this dryly logical proposition would greatly reduce the theory’s usefulness in multistate situations where all parties were not the adjudicator’s tenants, subjects, or citizens.

2. The Inadequacies of Traditional Terminologies for Comparative and Theoretical Discourses None of these nomenclatures is satisfactory for comparative and theoretical work. The French terminology has very little explanatory power and rests on developments particular to French law. Common-law usages have greater explanatory potential but are closely tied to historical developments and to a specific jurisdictional theory, that of power. 30 A final difficulty is that the terms tend to obscure the policy considerations that are relevant in evaluating the appropriateness of exercising adjudicatory authority.

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