The aim of this article is to survey the private international law scene in a number of regards, tracing developments in this country over recent decades, offering some thoughts on how such changes have come about and on their impact, concluding with an element of crystal gazing for the future. The turn of the century, to say nothing of the millennium, is as good a time as any to reflect on these developments. How then has the subject changed since the end of the nineteenth century? A useful, though unsophisticated, yardstick with which to start is to look at the approaches of the two major English books on the subject and to see how their coverage of different aspects of the subject has changed over the decades.

The Cold War years may have been in a way a good period for international lawyers and other international relations specialists: things were rather predictable and any fundamental change seemed to be out of the question. Today much has changed. What was just recently unforeseeable has become a reality in which unforeseeability is the norm. What about international law in this context?

Security (in a broad sense, see infra, II.B) in Europe is the realm of several regional international organisations, mainly the European Union (“EU”), Western European Union (“WEU”), North Atlantic Treaty Organization (“NATO”), the Organization for Security and Co-operation in Europe (“OSCE”) and, to a lesser extent, the Council of Europe, creating a patchwork of regional security institutions that is unique in the world. These organisations interact in many ways and claim to be mutually reinforcing. Is that the case? Is there room for improvement?

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law.1 The nature and extent of these obligations varies from one jurisdiction to the next but the fundamental justification for the duty to provide accurate information rests upon the perceived asymmetry of information as between insurer and insured as to the risk to be transferred.2 Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. Historically, the requirement to affirmatively volunteer information in relation to insurance transactions reflects, first, the potentially mortal impact inadequate information poses to the insurance industry's vitality, and second, the practical reality that certain critical information may be peculiarly within the insured's knowledge and difficult to elicit. The departure from caveat emptor and the allocation of the risk and consequences of non-disclosure to the party best placed to provide information pertinent to the transaction is seen as necessary to minimise transaction costs in such dealings.3

The intensive debate about the legality of NATO air strikes from March to June 1999 in the context of use of force, Chapter VII competences and humanitarian intervention1 including their implication in the domestic constitutional law of NATO members,2 may be concealed another development the importance of which in modern Public International Law should not be underestimated: since the time when the Yugoslav/Serbian army left Kosovo, the province has been under direct administration by the international community.3 Only a little time later the same phenomenon of international administration came into being in East-Timor, a Portuguese colony until 1975 and claimed by Indonesia afterwards.4

Article 6(1) of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters set out in Schedule 3C to the Civil Jurisdiction and Judgments Act 19821 provides that “[a] person domiciled in a Contracting State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled”. The House of Lords in Canada Trust Company v. Stolzenberg (No. 2)2 decided that first, in an action where jurisdiction is asserted under Article 6(1), the relevant standard of proof on the domicile issue is that of a “good arguable case” second, the correct date for determining if the anchor defendant3 is domiciled in England is the date of the issue of proceedings against the anchor defendant; and third, Article 6(1) does not require service on the anchor defendant prior to issue or service of proceedings against other defendants.

What is worse, watching a guilty person walk free or being denied access to a person who may die if left without your assistance? Is it more important to help bring about the wrongdoer's arrest or to help his victim? If a choice has to be made, it is never an easy one. But it is a dilemma that delegates from the International Committee of the Red Cross (ICRC) sometimes find themselves facing, and it is one that can keep you awake nights.1

On 21 September 1999 Pakistan filed an application instituting proceedings against India in respect of a dispute relating to the destruction in the previous month of a Pakistani military aircraft. According to Pakistan the aircraft, which was unarmed, was shot down by Indian fighter aircraft while in Pakistan air space and without warning. The 16 people aboard the aircraft, who were mostly naval trainees, were all killed. India denied all responsibility for the incident and rejected Pakistan's suggestion that a United Nations fact-finding mission should be sent to the area. Having unsuccessfully demanded some 60 million dollars compensation for India's allegedly illegal action, Pakistan then referred the matter to the Court.2

It might be thought an unusual or peculiar feature of international relations that, on occasion, States engaged in an armed conflict decide to appeal to international law and institutions for the provision of immediate judicial remedies.2 Yet, within the short space of 14 months, the International Court of Justice has twice found itself on the receiving end of such requests: in the first of these cases, the Federal Republic of Yugoslavia (FRY) filed an application on 29 April 1999 against 10 Member States of NATO for using armed force against the FRY in March 1999. At the same time, the FRY made a request for provisional measures, in which it asked the Court to indicate that the States involved “cease immediately [their] acts of use of force” and “refrain from any act of threat or use of force” against the FRY.3 In June 1999 the Court dismissed this request.4

An initiating Application filed by the Democratic Republic of Congo (DRC) against Belgium on 17 October 20001 potentially raises similar issues to those raised by the Pinochet case,2 namely the scope of “universal” jurisdiction in relation to serious international crimes against individuals (in this case “grave breaches of the 1949 Geneva Conventions and the 1977 Protocols thereto and crimes against humanity”) and the question of immunity where State officials (in this case a Foreign Minister) are accused thereof. As such it may represent an opportunity for the Court to give an authoritative ruling on these highly controversial and sensitive issues of international law, which seem to be raised with increasingly regularity before national courts. However for now such a ruling is a matter for the future, as on 8 December 2000 the Court dismissed the DRC application for provisional measures, and thus made no comment on the substantive issues of the case. Instead it found that certain intervening factual developments had removed from the application for provisional measures the requisite elements of irreparable prejudice to the rights of the applicant and urgency, thus obviating any need for an Order to be made at this stage.

1. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom).

The Commission resigned on 16th March 1999 shortly after the publication of the First Report of the Committee of Independent Experts.1 The Committee had been created by common agreement between the European Parliament and the Commission in order to address the persistent allegations of fraud, mismanagement and nepotism levelled at the Commission.2 The First Report investigated allegations of fraud against individual commissioners and the Commission as a whole.3 Although most of the allegations of fraud against individual commissioners were discarded as unfounded, the Committee held the Commission responsible for a series of mismanagement, administrative irregularities and a general failure to oversee the work it had contracted out.4 The conclusions of the report were damning and it became clear that resignation of the whole Commission was the only way forward. The events came at an all-time low for the Commission and will have lasting effects on the institution and its legitimacy.

At the Nice Summit in December 2000, Europe's political leaders adopted the much-discussed EU Charter on Fundamental Rights in the form of a legally non-binding political declaration. It is the second such instrument in relation to human rights protection.1 The Presidency Conclusions to both the 1999 Cologne and Tampere Summits ordered the preparation of a draft Charter which was to be solemnly proclaimed by the European Parliament, the Commission and Council at the Nice Summit.2 It was only after that fact that “It will … have to be considered whether and, if so, how the Charter should be integrated into the treaties.”3

The period under review (Autumn 1999–Spring 2001) saw a number of important cases decided by the Court of Justice involving breaches of Article 81(1). Pre-eminent are three judgments involving cartels and one involving distribution contracts.

This Journal's previous piece on current developments in EC intellectual property noted that this area of law is dominated by the drive towards harmonisation.1 This drive continues, and its success has been such that it can now begin to be seen in an overarching context of globalisation. The idea of a unified global system for the protection of intellectual property now seems at least conceivable, even if not immediately achievable. It is even possible to state that some stages have been achieved on the journey, most notably the TRIPs Agreement. Since adherence to this is a requirement of World Trade Organization (WTO) membership, the arguments in its favour have suddenly become “persuasive”. It represents a tremendous achievement in terms of the protection and enforcement of intellectual property rights throughout the world. The World Intellectual Property Organisation's contribution here and elsewhere has been immense.

On 22 December 2000, the Council of the European Union finally adopted Regulation 44/2001, which transforms the Brussels I Convention into a Community law instrument, pursuant to Arts. 61(c) and 67(1) of the EC Treaty. The basic framework of the Regulation remains similar to that of the Convention, although there are numerous changes on points of detail and some on matters of substance.