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Abstract
States have discretion what concrete measures to undertake to fulfil their positive obligations under the European Convention on Human Rights (echr). If a violation is found, states also have discretion how to execute the judgment. Yet, when the European Court of Human Rights reasons to conclude whether there has been a violation, it necessarily specifies possible measures that could have been undertaken in the past so that the state could have complied with its obligations. The question at the heart of this article is whether this specification assists in the identification of future measures for the purposes of the execution of the judgment. Hohfeld’s correlativity model and the interest-based theory of rights are invoked. The specified measures indicated in the reasoning do not correlate back to rights. Consequently, any measures that might be commanded by the echr obligations remain vague, which does not assist states in their efforts to execute judgments.
Abstract
Private law on intellectual property (IP) has achieved significant international harmonization, but international jurisdiction is subject to national regulations. As a result, enforcement of IP rights is carried out on a country-by-country basis. This approach leads to multiple concurrent legal proceedings, increasing the risk of conflicting judgments and escalating litigation costs. These costs create a disparity between multinational corporations and small and medium-sized enterprises. As a potential model for future international agreements on intellectual property and private international law, the International Law Association (ILA) Committee on ‘Intellectual Property and Private International Law’ seeks to address cross-border IP disputes. This paper will explore whether the ILA principles can be utilized as models for legislators, judges, arbitrators and other competent authorities in Vietnam, a legal system characterized by a lack of case law on the topic.
Abstract
This paper considers if there can be said to be an “Asian” body of principles for the recognition and enforcement of foreign judgments. Tapping on the results of a research project which was conducted from 2016 to 2020, it is submitted that the answer to this query is in the negative. However, it is suggested that what marks out the “Asian” approach to private international law is the willingness of Asian countries to look outwards for reform and development and to balance the adoption of international norms against important local norms and objectives. Singapore’s approach to the recognition and enforcement is discussed as a case study of this Asian approach.
Abstract
This article explores the current opportunities and challenges in the development of Asian private international law. Reflecting on the experience of the Hague Conference on Private International Law and the Studies in Private International Law – Asia series published by Hart Publishing, this article argues that Asian private international law is currently thriving. However, there remain four practical difficulties in the further development of Asian private international law and the harmonisation of Asian states’ practices on cross-border issues. This article then considers potential contributions from Hong Kong in the development of Asian private international law, both as a facilitator for dialogues and collaborations among common law and civil law systems, and as an exemplar of interregional cooperation through developing and refining private international law frameworks within the Greater Bay Area and the Greater China.
Abstract
The presence of Asia in the global arena has become notable due to its thriving economy. Arguably, it is time to consider how private international law (or conflict of laws) should develop in Asia and what kind of opportunity it can engender, considering that private international law has the potential to promote economic and legal cooperation without unifying substantive law. First, this paper considers the role of the Hague Conference on Private International Law (HCCH) and the varying significance of its conventions on judicial assistance, litigation, and child protection in the pursuit of private international law unification in Asia. Second, this study elaborates and supports the use of non-binding instruments (or soft law) – model laws, principles, legislative guides, etc. – as a fallback method of harmonizing private international law. Third, this paper examines the increasing extraterritoriality of regulatory norms of the US, the EU, China, and other countries in the global market. This will clarify the problems of conflicting, overlapping regulations and allow scrutiny of potential pathways to restrict the exercise of the states’ prescriptive jurisdiction. Some future perspectives will conclude this study.
Abstract
This article aims to introduce the Asian Principles of Private International Law (APPIL) Project, which endeavors to facilitate the exchange of ideas on Private International Law (PIL) among scholars and to harmonize PIL within the Asian region. The APPIL Project emerged from the longstanding scholarly exchanges between Korea and Japan, and Korean scholars and Korean law have significantly contributed to the APPIL Project discussions. Given the considerable diversity within Asia, the need for harmonization of PIL in this region is even more pressing than in Europe or the Americas. If successful, the harmonization experiment in Asia could serve as a model for the rest of the world.
Abstract
This paper aims to analyze the International Law Association’s Guidelines on Intellectual Property and Private International Law (hereafter referred to as the “Kyoto Guidelines”) and to examine their significance and future challenges. As the number of cross-border intellectual property (IP) disputes has increased since the 1990’s, issues of conflict of laws (private international law) in IP disputes have become the subject of worldwide discussion. One of the most notable outcomes of this discussion has been the creation of soft-law typed principles or proposals dealing with conflict of laws issues. After some principles or proposals were drafted, the International Law Association Committee “Intellectual Property and Private International Law” was established in November 2010, and, after long discussions, the Kyoto Guidelines drafted by the Committee were approved by the ILA 79th Biennial Conference held (online) in Kyoto on December 13, 2020. What is the significance of these Guidelines and what challenges remain for the future? This paper will examine these questions.