Four leading corporate-law jurisdictions, the US state of Delaware, England, Australia and Japan, recognise some form of ‘corporate compliance duty’ requiring company directors to facilitate corporate compliance with domestic law, the breach of which may result in personal civil liability to the company. However, they differ in how the duty responds to corporate non-compliance with foreign law. Choice-of-law analysis under private international law poses a potential obstacle because it mainly treats directors’ duties as governed by one lex societatis (typically the law of the state of incorporation, lex incorporationis) and excludes all other laws. This article proposes that the emerging private international law technique of ‘taking into consideration’ be used to facilitate better engagement with foreign law when adjudicating directors’ duties, and to increase corporate law’s permeability to foreign legal norms to better respond to demands for accountability in globalised business.

Common law courts will enforce jurisdiction agreements unless they find ‘strong cause’ or ‘strong reasons’ not to. This article argues that the strong cause test is the product of the fact that jurisdiction agreements should generally be viewed as weighty factors under forum non conveniens. In particular, this is because a jurisdiction agreement reflects parties’ well-informed view that their chosen court is the appropriate forum for their dispute, to be departed from only in exceptional circumstances. This account explains various features of the strong cause test which otherwise prove difficult to rationalise, and also holds implications for the law’s treatment of non-exclusive jurisdiction agreements and contractual anti-suit injunctions.

This article concerns the ‘rule in Gibbs’: a controversial principle of English private international law which provides that a debt is only discharged in a foreign insolvency proceeding if the contract is governed by the law of that proceeding. Critics of the rule consider that it undermines the foundation of corporate insolvency as a unitary process in which individual collection efforts are replaced by a collective proceeding for all creditors. This article offers a qualified defence of the rule. It suggests that it could be abandoned in ‘true’ insolvency cases, in which the company’s assets are sold to a third party and the proceeds distributed to its creditors, but only if the rule is replaced with a cross-border insolvency law framework. It also suggests, however, that Gibbs is the ‘right’ rule in a cross-border corporate restructuring, in which only some of the company’s creditors stay with the firm to benefit from any future upside that the third party would otherwise capture in a sale. It argues that European Union private international law adopts this approach to a restructuring and that the Gibbs rule is, therefore, not nearly as exceptional as it is sometimes made out to be.

This article synthesizes the insights of all contributors to the Bremen symposium and the contributions to this Special Issue, seeking to identify key themes and ideas for advancing a coherent regulatory approach to consent in dispute resolution agreements. By highlighting both shared concerns and divergent legal techniques, the project aimed at informing future scholarly and policy debates on this critical issue of contract law and private international law.

The Cape Town Convention is widely regarded as the most successful international convention in terms of ratifications. This essay aims to explore the fundamental reasons behind this success. While it is undeniable that the Cape Town Convention receives substantial industrial support in response to urgent market demands and the innovative protocols it established, this essay argues that this alone does not fundamentally explain its success.

Instead, the underlying reason lies in the Convention’s ability to avoid the trap of a false dichotomy – where one side seeks to convince the other to agree with its viewpoint. Rather, the key is to strive for a viable compromise that accommodates the perspectives of both, or even multiple stakeholders. This proposition will be illustrated by drawing on the social science concept of coordination, through a comparative analysis of the drafting processes of the Cape Town Convention and the Hague Securities Convention.

Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English court, but decisions in other jurisdictions show that this question is increasingly being raised in litigation. Is there identity of issue if the two courts apply different choice of law rules? The answer turns on whether a broad or narrow framing of the issue is adopted. It is suggested that, absent an issue which is subject to forum international public policy, forum overriding mandatory rules or which is one that the forum court retains the prerogative to determine for itself, a broad framing ought to be adopted. Thus, in principle, an issue estoppel should arise over the identity of the governing law of the claim. However, issue estoppel should not operate where the choice of law category involved is underpinned by public policy considerations. The consideration of the specific issue of the governing law of the claim also feeds into broader questions on the applicability of issue estoppel whenever the two courts would apply different laws or frameworks to decide the issue. In general, whether a plea of issue estoppel ought to succeed depends on balancing the principles underlying res judicata against the considerations arising in each specific context.

To the extent they consider the matter, tort theorists sometimes assume that the subjects of authority in tort law are the citizens of the state whose tort law applies. This assumption underlies democratic and social contractarian accounts of how to justify the authority of tort law. But as the doctrine of private international law—particularly choice of law—reveals, the subject of tort law is not the citizen, but the generic person; and authority in tort law is not grounded in the state-citizen relationship. Instead, choice of law rules reveal a more complex picture of how tort structures authority. Here, I offer a sketch of an approach that can justify tort law’s authority over persons, not citizens. And I discuss how this analysis may require us to rethink not just the subjects of tort law but also the subject of tort law: the nature of its primary rights and duties.

Virtually all private international law systems now accept the principle of party autonomy, namely the notion that parties to a multistate contract may agree in advance, and within certain parameters and limitations, on which state’s law will govern the contract. The first part of this Article, corresponding to the word “then” in the title, traces the slow evolution of this principle through the centuries: From an isolated example in antiquity, to the academic literature of the Early Modern Era, to its accelerated acceptance and subsequent triumph in the second half of the twentieth century. The second part, corresponding to the word “now” in the title, discusses two important variations among contemporary legal systems regarding the permissible scope and appropriate public policy limitations of this principle. Finally, because this Article was written for a conference held in Bremen, Germany, the third part concludes with a brief discussion of the connection between a ship bearing the city’s name and a landmark decision of the United States Supreme Court that extended this principle to exclusive choice-of-court agreements.

A key issue in the recognition and enforcement of foreign judgments is jurisdiction, with a distinction drawn between ‘direct’ jurisdictional rules, which are applied by the court of origin at the time of initial adjudication, and ‘indirect’ rules applied by a court at the recognition and enforcement stage. While some commentators and national laws suggest that no jurisdictional ‘gap’ should exist between direct and indirect rules, in this article it is contended that, outside the context of a federal system or international convention with uniform rules, no compelling justification exists for eliminating the gap.

Courts in England ordinarily grant anti-suit injunctions when proceedings are (or will soon be) initiated in a foreign court in breach of clauses which subject disputes to the exclusive jurisdiction of courts, or refer them to arbitration, in England. Would they, however, grant such relief in support of foreign dispute-resolution clauses? In UniCredit Bank v RusChemAlliance, the Supreme Court of the United Kingdom answered this question in the affirmative, thus expanding the English courts’ power to issue anti-suit injunctions. This article seeks to assess the likely extent of this expansion and the future implications it could have for the law on anti-suit injunctions in England. The article also examines the Supreme Court’s pronouncements on the other significant issue in the case concerning the law governing arbitration agreements and their potential effect following the enactment of the Arbitration Act 2025.

This article examines the feasibility of enforcing Singapore money judgments in Cambodia, focusing on the “guarantee of reciprocity” – an ambiguous yet critical condition. It is ambiguous because Cambodian courts have not yet interpreted it. It is critical because it is perceived as the main obstacle to enforcing foreign judgments. Without a treaty-based mutual enforcement mechanism between Cambodia and Singapore, it is unclear whether a Singapore money judgment could be enforced in Cambodia or if a judgment creditor’s application would be dismissed in any event citing lack of reciprocity. Following an analysis of the laws of Cambodia, Singapore, and Japan, the article concludes that there is no legal obstacle before the Cambodian courts to enforce a Singapore money judgment. The flexible interpretation of the guarantee of reciprocity outlined in this article would enhance access to justice, eliminate a trade barrier, and make the investment environment more attractive in Cambodia.

This article argues that the rule of contra proferentem is not applicable to international sales contracts governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG). It further argues that the common recognition of the rule of contra proferentem under the CISG is an instance of a broader phenomenon which it calls ‘internationality overreach’. ‘Internationality overreach’ is the tendency to project onto the provisions of a uniform private law instrument doctrines and concepts which are inaccurately presumed to constitute universally recognised principles of private law or the ‘common core’ of various legal systems. This article demonstrates that internationality overreach disrupts the goals underpinning the harmonisation of commercial law in two ways: first, it undermines uniformity in the application of international conventions; and, second, it leads to outcomes that fall short of the agreement reached by the Contracting States during the drafting process. While this article focuses on the CISG, the argument developed in this article is of equal relevance to other uniform private law conventions which follow the principle of autonomous interpretation.

The Court of Justice of the European Union (the Court) has famously sought to eliminate intra-European Union (EU) investment arbitration under bilateral investment treaties and the multilateral Energy Charter Treaty. In doing so, the Court has navigated settled case law concerning commercial arbitration. In this regard, Achmea and subsequent rulings are premised upon a distinction drawn by the Court between investment and contract-based arbitration, based on the origin of arbitral proceedings and the intensity of the review of the relevant award. This article demonstrates that this distinction disregards important commonalities and the diversity of enforcement regimes. It is further argued that, even in the light of Achmea, EU law rightly permits intra-EU arbitration under investment contracts, that is, contracts between States and foreign investors. The article thus examines investment contract-based arbitration as the only surviving form of intra-EU investment arbitration and cautions against expansive applications of the Achmea reasoning to contractual agreements, signs of which are already emerging.

This article discusses the United Kingdom Supreme Court judgment in Zubaydah v Foreign, Commonwealth and Development Office, which addressed the law governing the tort liability of the United Kingdom Government for its alleged complicity in the claimant's arbitrary detention and torture overseas by the Central Intelligence Agency. In holding that English law applied, the Court departed from previous case law by giving decisive weight to public law factors in its choice-of-law reasoning. This decision arguably heralds a greater role for English law in relation to tort claims brought by overseas victims of allegedly wrongful exercises of British executive authority as a mechanism for achieving executive accountability, controlling abuse of power, ensuring the rule of law and providing victims access to remedy.

This article argues that the purpose of the English gateways for service out of the jurisdiction is to identify a presumptive meaningful connection; that courts have used different mechanisms to rebut the presumption of a meaningful connection established by the gateways; and that there are lessons to be learnt from a clearer, more explicit understanding of this presumptive purpose of the gateways. The article uses Brownlie (I and II) and Fong v Ascentic Ltd to support and illustrate these arguments.