Course Title: Comparative Conflict of Laws in International Commercial Disputes

MASTER OF LAWS

Course Code: LAW620

Course Title: Comparative Conflict of Laws in International Commercial Disputes

Instructor : Dr. Markus Aurel Petsche

Title : Comparative Conflict of Laws in International Commercial Disputes

Email :

Date Submitted : 6 March 2012

Pre-requisite/CO-REQUISITE/MUTUALLY EXCLUSIVE cOURSE(S)

COURSE specialisation

DISPUTE RESOLUTION / COMMERCIAL LAW

Grading BaSIS

Graded

Course UNIT

1 CU

FIRST offering term

Academic Year: AY2012/2013

Academic Term: Term 4 (February 2013)

COURSE DESCRIPTION

LEARNING OBJECTIVES

By the end of this course, participants will be able to:

· Understand the operation of conflict of laws principles in the context of international commercial litigation and arbitration;

· Solve the relevant conflict problems arising in practice;

· Identify the specific methodological approaches prevailing in the area of international commercial arbitration;

· Critically assess the current state of the law;

· Appreciate the basic differences between the approaches followed in both common and civil law jurisdiction

Pre-requisite/ CO-REQUISITE/ MUTUALLY EXCLUSIVE cOURSE(S)

Assessment Method

Class participation: 20%

Class presentation: 30% (15% for written paper and 15% for oral presentation)

Take-home exam: 50%

INSTRUCTIONAL MethodS AND EXPECTATIONS

All participants are expected to study the assigned reading materials prior to the relevant sessions. This is particularly important as the classes will take the form of seminar-style discussions with active student participation. The materials discussed may notably include cases, statutes, law review articles and excerpts from monographs. Critical assessment of all materials is particularly encouraged.

Important: Academic Integrity

All acts of academic dishonesty (including, but not limited to, plagiarism, cheating, fabrication, facilitation of acts of academic dishonesty by others, unauthorized possession of exam questions, or tampering with the academic work of other students) are serious offences.

All work (whether oral or written) submitted for purposes of assessment must be the student’s own work. Penalties for violation of the policy range from zero marks for the component assessment to expulsion, depending on the nature of the offence.

When in doubt, students should consult the instructors of the course. Details onthe SMU Code of Academic Integrity may be accessed athttp://www.smuscd.org/resources.html.

COURSE SCHEDULE

Session / Description / Readings
PART ONE: Introduction
1 / Overview of the Course; Introduction to the Conflict of Laws
A. Object of the course
1. Object of the conflict of laws
2. Scope of legal comparison
3. Meaning of international “commercial” disputes
B. Introduction to the conflict of laws (choice of law, jurisdiction)
1. When do conflict of laws issues arise?
2. Purposes of the conflict of laws
3. Characteristics of choice of law norms
4. Mandatory norms and public policy
5. Characterization, preliminary question and renvoi
C. Basic comparative elements of the conflict of laws (with an emphasis on choice of law)
1. Predictability versus flexibility
2. Neutrality of choice of law norms versus taking into account the substance of the laws in conflict
3. Intellectualism versus pragmatism
4. Specific differences
PART TWO: Conflict of Laws in International Commercial Litigation
2 / Conflict of Laws in Transactional (Contract) Disputes: Determination of the Applicable Law
A. Freedom of the parties to choose the applicable law
1. Rationale
2. Scope of the parties’ freedom
3. Express and implied choice
B. Law applicable in the absence of a choice of law by the parties
1. In Europe: specific rules for particular contracts; general principle
2. In the US and Singapore: most significant relationship and closest connections tests
C. Scope of the applicable law
1. Issues covered
2. Issues not covered
3 / Conflict of Laws in Tort Litigation: Determination of the Applicable Law
A. In Europe
1. Application of the law where the damage occurs
2. Application of law of the parties’ common habitual residence (if applicable)
3. Specific rules for particular torts
B. In the US
1. Most significant relationship test: relevant factors
C. In Singapore
1. Double actionability rule
2. Exceptions to the double actionability rule: the most significant relationship rule
4 / Limitations on, and Exclusions of, the Applicable Law (Regarding Both Contract Disputes and Tort Litigation)
A. Application of mandatory norms
1. Mandatory norms of the forum
2. Mandatory norms of a third country
B. The public policy exception
PART THREE: Conflict of Laws in International Commercial Arbitration
5 / The Applicable Procedural Law: The Lex Arbitri
A. Scope of the lex arbitri
1. Validity/enforceability of the arbitration agreement
2. Constitution of arbitral tribunal and arbitral proceedings
3. Setting aside, recognition and enforcement of arbitration awards
B. Determination of the lex arbitri
1. Law of the seat (place of arbitration)
2. Law chosen by the parties?
C. Specific issues
1. Severability and autonomy of the arbitration clause
2. Enforcement of annulled arbitration awards
6 / The Determination of the Applicable Substantive Law: Novel choice of law approaches
A. Arbitral discretion in the determination of the applicable substantive law (absent a choice of law by the parties)
1. Rationale
2. Legislative recognition
B. Methodological approaches
1. Application of conflict of laws rules common to the parties’ respective legal systems
2. Application of the most appropriate conflict of laws norm
3. Direct application of the most appropriate substantive law
4. The tronc commun doctrine
7 / The Determination of the Applicable Substantive Law: Application of Transnational Law (Lex Mercatoria)
A. Meaning, raison d’être and sources of transnational law
B. Freedom of the parties to select transnational law as the applicable law
C. Power of arbitrators to select transnational law in the absence of a choice of law by the parties
D. Advantages and risks associated with the application of transnational law
PART FOUR: Conflicts of Jurisdiction
8 / Jurisdiction of Domestic Courts in International Commercial Disputes
A. In Europe (Brussels I)
1. General rule
2. Rules of special jurisdiction (especially regarding contracts and torts)
3. Rules of exclusive jurisdiction
4. Choice of court agreements
B. In the United States
1. Due process under 14th Amendment (minimum contacts, reasonableness)
2. Long-arm legislation
3. Choice of court agreements
C. In Singapore
1. Service in Singapore
2. Service abroad
3. Jurisdiction agreements
9 / The doctrine of forum non conveniens
A. Application of the doctrine
1. In Europe
2. In the United States
3. In Singapore
B. Critique of the doctrine
10 / Recognition and Enforcement of Foreign Judgments
A. “Universally” recognized defenses to enforcement/recognition
1. Public policy
2. Due process
3. Conflict with another judgment
B. Additional defenses to enforcement/recognition available in specific countries
1. Lack of jurisdiction of rendering court
2. Violation of forum selection clause
3. Rendering court is inconvenient forum
4. Disregard for applicable law by rendering court

Course Title: Comparative Conflict of Laws in International Commercial Disputes

COURSE DESCRIPTION

Pre-requisite/ CO-REQUISITE/ MUTUALLY EXCLUSIVE cOURSE(S)

Recommended Text and Readings

Assessment Method

COURSE SCHEDULE