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The decision of the US Supreme Court in Monasky v. Taglieri confirms that the determination of the newborn/infant's habitual residence should focus on the intention and habitual residence of his/her parents or caregiver – the analytical approach is parent-centered. The US Supreme Court ruling, in affirming the decision of the Sixth Circuit Court of Appeals, also clarifies that the determination of the habitual residence of the adolescent/older child should focus on his/her own acclimatization – the analytical approach is child-centered. According to the Supreme Court, the determination of the habitual residence of the child found to be within a transnational family conflict, such as that contemplating an international abduction or an international marital dispute concerning, inter alia, parental authority, must take into account the specific circumstances and facts of each individual case – fact-intensive determination. Based on the practice of other States and of the CJEU, this judgment considers that a predetermined formula applied to the analysis of the child's habitual residence cannot be deemed to be in conformity with the objectives of the 1980 Hague Convention (applicable to the United States and Italy, both of which are involved in this case) – in particular, by virtue of the fact-based approach followed by this notion, unlike other connecting factors such as domicile and nationality. Regrettably, in affirming the decision the Supreme Court upheld the reasoning of the Court of Appeal as a whole. Thus, it set aside two elements which were not considered in depth by the Court and which in the author's opinion it should have retained, regardless of the child's age and given the child's development within a potentially disruptive family context: The principle of the best interests of the child and the degree of instability attributed to the child's physical presence before the wrongful removal.

The States, international organizations and interest groups are increasingly concerned with treaty claims of foreign investors, who sometimes seek compensation for the States' legitimate regulatory measures, such as tobacco plain packaging, nuclear energy phase out and environmental regulations. International investment law has yet to develop a comprehensive and predictable framework addressing some of the basis questions related to compensability of legitimate regulatory measures. The thesis carries out a comparative legal analysis to identify the key features of the prohibition of uncompensated expropriation as a general principle of law, and explores the rationale of that principle in political philosophy. Equipped with the results of this analysis, it proceeds to propose an analytical approach addressing practical questions related to the compensatory protection of foreign investments.

This thesis supports the recourse to habitual residence in international family law as an inter-country concept, which is old in its origins and modern in its objectives. Habitual residence is adaptable and flexible when considering each family context. It is actual and close when determining the realistic nexus with justice. According to this research, the possible transnational conflicting operation of habitual residence, affecting people's interests and rights in similar family contexts, does not rely on the absence or presence of an international legal definition, but on the lack of uniform factual guidance. A uniform fact-based determination, life adapted, is therefore required for the most effective and efficient use of habitual residence. In this sense, an international handbook should be conceived at the Hague Conference on Private International Law, with the support of other entities, in order to establish a guide applicable to the various family law instruments adopting habitual residence.

Investment activity and the economic policies of host States are directly related. This relationship has an impact not only on the attraction of foreign direct investment, but also on the negotiation and conclusion of international treaty law on investment, taxation and trade. The result of the interaction between these different fields of economic law is that tax disputes can be shifted to investor-State arbitration in claims of expropriation. Thus, a fiscal measure can be tantamount to expropriation under international investment law. However, arbitral case law treats taxation as a special category. The general standard of indirect expropriation is then applicable with a higher threshold. This development of the theory of indirect expropriation in fiscalibus is understood from the sovereignty paradigm. When not excluded, the host State's policy space for addressing fiscal issues is restricted by the substantive protection of the investment as covered by the applicable law.

Julia Hörnle is one of the world's foremost scholars in the field of online dispute resolution (ODR) a small field that lies at the crossroads of Internet law and dispute settlement. With Cross border Internet Dispute Resolution she has put together a major work in which she expounds her vision of a fair system to resolve Internet disputes. To be sure very few people could have been in a better position than Hörnle to engage in the daunting task of defining the lineaments of justice in cyberspace: it requires a thorough understanding of technological feasibility sociological realism business acumen legal dexterity and basic emotional common sense. Hörnle clearly displays all of these strengths in her treatment of the subject matter. But analytical precision and taking arguments to their logical conclusion occasionally yield to such higher values in her exposition. And at a number of junctures her arguments regrettably seem to be driven by conventional wisdoms prevalent in the ‘ODR Community’ – a community that in 15 years has not been able to produce a straightforwardly laudable and working model of ODR as the one or two current ODR systems that are living up to expectations rely on specificities that can barely be replicated elsewhere with any systematicity. (I also belong to this community and share the blame.) At these junctures one would have hoped someone of Hörnle's calibre and acumen to be more critical more innovative more challenging – more ‘hungry and foolish’ as the authors of the ‘Whole Earth Catalog’ put it in their hardcopy forerunner of Google. Nevertheless the sweep and depth of Cross border Internet Dispute Resolution definitely command the admiration of any reader interested in information technology and e commerce. It is the most thoroughly researched clearly presented and insightful book on online dispute resolution written so far a position it is likely to keep for quite some time. It is a must read for all practitioners and theorists of dispute resolution but some of the fundamental ideas of the book call I believe for a debate which this article offers to start.

The study analyses the process through which investment arbitral tribunals identify and resolve conflicts between investment standards of protection and norms from other international regimes relevant for the merits of the dispute. It questions the validity behind the current approach that tribunals adopt, under which arguments based on extraneous norms are overwhelmingly unsuccessful and proposes its' transformation in three respects. First, rather than being a mere means of interpretation, as in current practice, a broader pool of international norms must be applied to the substance of investment disputes. Second, the concept of normative conflict must be broadened if one is to address the actual challenges that inter-regime conflicts pose for international law. Third, fleshing out the modalities under which one could use private international law as a source of inspiration in public international law context, the study offers best practices for approaching the types of conflict commonly found in investment disputes.

In­ternational child litigation is increasing worldwide. The possibility of submitting cross-border dis­­putes to cross-border tribunals, typically through ar­bi­tra­tion, is gene­rally de­nied to the parents and the child, the notion of ‘ar­bi­tra­bi­lity' being traditionally based on the pa­­­tri­­mo­nial nature of the claims being litigated. The talk pur­ports to review the argu­ments un­der­lying that po­sition and to show that most of them, including the public policy component of, and the state in­te­rests in­vol­ved in, child disputes, lead both to question the neutrality of ‘mo­no-na­­tio­nal' tri­b­unals and to realise the potential for a 'conflict of public policies' and of ‘state interests' that may arise when it comes to children with ties to two or more countries. To the ex­tent that they re­flect the dual or mul­tiple iden­tity of the child and his or her pa­rents – cul­­tural, lin­guistic, so­me­times religious –, international (arbitration) courts pro­­­mise to have a grea­­­ter le­­­­­­giti­macy in the eyes of the individuals and to deliver a more even-han­ded jus­tice to them. Re­liance on that justice may reduce abduc­tions which are now fuelled by the per­­cep­tion of forum bias atta­ching to ‘mono-na­­tio­nal' jus­tice.

During contract negotiation, parties often refer to their respective standard terms at some stage of the negotiations. When the contract is international, these standard terms often contain choice-of-law clauses. More often than not, each party will designate its own law as the law governing the contract in its respective standard terms. The question then is: do any of the standard terms prevail and which law applies to solve the battle of forms? The Hague Principles on Choice of Law in International Commercial Contracts, approved in March 2015, provide a solution for this issue. This contribution looks at recent academic commentary on the Hague solution and analyses whether Article 6 of the Hague Principles has helped, or may indeed help in the future, to increase legal certainty in international commercial transactions. The contribution examines the conclusions that national, interregional, and international legislators or courts may draw from the relevant academic discussion. It submits a proposal aiming to close the gap that exists in the Rome I Regulation with respect to choice of law in the battle of forms situations and also suggests applying the same solution to both conflicting choice-of-law clauses and conflicting choice-of-court clauses in standard forms.

Commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the JURI committee, this study provides an analysis of the potential legal impact of the introduction of connected and autonomous vehicles on rules of private international law determining jurisdiction and applicable law in the EU Member States in the event of a cross-border traffic accident. Following a case-studies approach, it makes a number of recommendations to improve the legal framework. In line with recent EU law trends towards enhanced protection for the victims and given that products liability is likely to gain more importance in the area, the study suggests the introduction of a duty for car manufacturers to contract liability insurance covering traffic accidents victims; the possibility of a direct action against a manufacturer's liability insurer and the establishment of a forum at the domicile of the victim for claims against manufacturers of cars using new technologies. In order to increase legal certainty, the study recommends to redefine the respective scopes of application of the two systems of private international law currently coexisting in the EU to determine the law applicable (the Rome II Regulation and the 1971 and 1973 Hague Conventions), and to apply Rome II in cases in which both the claimant and the defendant are domiciled in EU Member States. Finally, autonomous technologies may increase the difficulty to initiate extra-contractual liability claims therefore the study proposes that limitation periods be extended at the substantive law level or that a cumulative connecting mechanism be introduced at private international level for the benefit of the victims.

In most European countries, fault-based liability is the principal pillar of extra-contractual liability, at least in theory. However, proving fault of the person alleged to be liable may be a requirement which is difficult or even impossible to fulfil, even for claimants who may in fact deserve compensation. Ski accidents illustrate these difficulties particularly well. In cases of ski collisions, fault-based liability achieves compensation often only partially, if at all, generates high transaction costs and is often inefficient, leads to results that might be perceived as unfair by victims, and achieves largely unsatisfactory results when it comes to distributing the social costs of ski accidents. The reason is that collisions often happen in a fraction of a second, that the dynamics of the accident often render the reconstruction of the accident very difficult, if not impossible, and that there is typically little or no evidence. Often witnesses are not available, or were themselves busily skiing and did not pay attention to the details of the accident, and are often, willingly or unwillingly, biased. Given these weaknesses of fault-based liability there is reason to consider alternative regimes for ski collisions. It is argued that applying a system of fault-based liability with a presumption of fault, or, alternatively and arguably even better, a strict liability system for dangerous activities to ski collisions, combined with (mandatory) liability insurance, would achieve a higher level of compensation, reduce transaction costs to a minimum, and often achieve fairer results.

On May 13, 2014, the European Court of Justice decided, in the case of Google Spain, that search engines are bound to remove, upon request, results pointing to websites holding “inadequate, irrelevant, or excessive” information about European citizens, thus granting the latter a so-called ‘Right to be Forgotten,' or more precisely a ‘Right to be Delisted.' In the case at hand, it was found that European principles of data protection applied to Google's search engine business through the presence of Google Spain, a locally-focused advertising management office established in Madrid. Left unexplored, however, was the question of whether other foreign search engines that have fewer contacts with the legal order of the European Union, such as Duck Duck Go, also fall under its scope. With this interrogation over the extraterritorial application of EU data protection law as a starting point, the paper confronts, through the use of a private international law inspired methodology, the scope rules of Directive 95/46/EC on data protection against hypothetical cases involving search result delisting requests. Through the results so obtained, it highlights that, due to a rift between the individual, personality focused nature of the Right to be Delisted and the processing, data controller oriented nature of the scope rules of the Directive, answering these questions remains a convoluted and inconsistent process akin to hammering square pegs into round holes. It concludes by proposing solutions, both de lege lata and de lege ferenda, which may inspire further developments.

Evidentiary privileges have recently begun to attract more attention in international arbitration. Indeed, although the shift towards cross-border business and multi-jurisdictional transactions has resulted in an increase in international disputes, rules of evidence, on the other hand, have been conceived for proceedings in local courts and are not adjusted to international disputes. The purpose of this work is to review the evidentiary privileges existing in English, American, Swiss and French law likely to be invoked in international arbitration, to determine which laws govern evidentiary privileges in international arbitration and, finally, to determine whether there exists a preponderance of practice suggesting that certain evidentiary privileges could develop into transnational rules in international arbitration.

The following contribution builds on the Swiss experience in order to reflect on the idea of codifying private international law in the EU. The Swiss Federal Act on Private International Law with its 225 articles is possibly the most complete codification of private international law (PIL) worldwide. It covers jurisdiction, international civil procedure, applicable law, and the recognition and enforcement of foreign judgments. It represents therefore a comprehensive codification of PIL. This contribution argues that having a comprehensive PIL codification has numerous advantages when compared with having PIL rules distributed over a large number of separate acts or regulations. A comprehensive codification makes all PIL rules readily accessible in one place, helps to avoid friction between the rules on jurisdiction on the one hand and applicable law on the other, promotes a uniform view of the whole matter, favours clarity and coherence between the different sets of rules, reduces complexity, increases le...

This book expounds the theory of international arbitration law. It explains in easily accessible terms all the fundamental concepts of arbitration, from separability of the arbitration agreement to competence-competence over procedural autonomy, finality of the award, and many others. It does so with a focus on Swiss international arbitration law and jurisprudence, which are among the leading ones globally. Yet, its reach is broader than a commentary of Chapter 12 of the Swiss Private International Law Act as the foundations of international arbitration are common to most arbitration systems nowadays; the discussion contains numerous references to comparative law and developments. In addition to presenting the law extensively, the book discusses the practice of international tribunals. Written by two well-known specialists – Prof. Kaufmann-Kohler being one of the leading arbitrators worldwide and Prof. Rigozzi one of the foremost experts in sports arbitration – the work reflects many years of experience in managing arbitral proceedings involving commercial, investment and sports disputes. That knowhow is the basis for the solutions proposed to resolve the many practical issues that may arise in the course of an arbitration. It also informs the discussion of the arbitration rules addressed in the book, from the ICC Arbitration Rules to the Swiss Rules of International Arbitration, the CAS Code, and the UNCITRAL Rules. While the book covers commercial and sports arbitrations primarily, it also applies to investment arbitrations conducted under rules other than the ICSID framework.