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Forum Shopping and International Commercial Law

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Forum Shopping and International Commercial Law

9781788970822 Edward Elgar Publishing
Edited by Franco Ferrari, Professor of Law and Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law and Aaron D. Simowitz, Assistant Professor and Co-Director of The Business Lawyering Institute, Willamette University, US
Publication Date: April 2020 ISBN: 978 1 78897 082 2 Extent: c 2,104 pp
Commentators and courts disagree on such fundamental issues as the definition of forum shopping and whether it is an ‘unsung virtue’ or an untrammelled vice. Disagreements persist on how to deal with ‘virtuous’ forum shopping or how best to proscribe “evil” forum shopping, if such a distinction can at all be made. The articles reprinted in this three-volume collection illuminate, explore and contest these questions. Volume I analyses the definitions and purposes of forum shopping, the right and duty to practise it and how it relates to private international law. Volume II focuses on the link between forum shopping and uniform substantive law as well as discussing jurisdictional issues and arbitration. Volume III investigates defamation, intellectual property and competition law, as well as examining insolvency proceedings along with treaty shopping. Together with an introduction by the editors, this collection provides a comprehensive overview of the topic and will prove useful to academics, students and practitioners alike.

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Critical Acclaim
Contributors
Contents
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Commentators and courts disagree on such fundamental issues as the definition of forum shopping and whether it is an ‘unsung virtue’ or an untrammelled vice. Disagreements persist on how to deal with ‘virtuous’ forum shopping or how best to proscribe “evil” forum shopping, if such a distinction can at all be made. The articles reprinted in this three-volume collection illuminate, explore and contest these questions. Volume I analyses the definitions and purposes of forum shopping, the right and duty to practise it and how it relates to private international law. Volume II focuses on the link between forum shopping and uniform substantive law as well as discussing jurisdictional issues and arbitration. Volume III investigates defamation, intellectual property and competition law, as well as examining insolvency proceedings along with treaty shopping. Together with an introduction by the editors, this collection provides a comprehensive overview of the topic and will prove useful to academics, students and practitioners alike.
Critical Acclaim
‘These amazing three volumes – containing everything you always wanted to know about forum shopping but were afraid to ask – are a masterwork on one of the most controversial and ubiquitous issues of International Law. The selection and classification of the articles included in this Research Collection could hardly be better and go certainly beyond the scope suggested by the title. Indeed, readers will find much more than International Commercial Law therein.’
– Diego P. Fernández Arroyo, Sciences Po Law School, Paris, France

‘Forum shopping is relevant to most transnational legal relationships and, depending on the definition, is condemned as the worst of evils or praised as a duty for any diligent lawyer. This impressive collection of essays reflects the multifaceted features of forum shopping, as well as the range of opinions on it. It reprints classical works that take a variety of perspectives, such as court litigation, arbitration, conflict of laws, uniform law, international law or specific sectors of law such as defamation, competition, intellectual property and insolvency. A unique collection for the understanding of a complicated and underexamined topic.’
– Giuditta Cordero-Moss, University of Oslo, Norway
Contributors
62 articles, dating from 1995 to 2017
Contributors include: D.L. Bassett, P. Bookman, R.A. Brand, K.M. Clermont, F.Ferrari, M. Gardner, E. Petrossian, L.J. Silberman, A.D. Simowitz, A.O. Sykes
Contents
Volume I

Contents:

Acknowledgements

Introduction Franco Ferrari and Aaron D. Simowitz

PART I FORUM SHOPPING: WHAT IS IT? [274 pp]
1. Friedrich K. Juenger (1989), ‘Forum Shopping, Domestic and International’, Tulane Law Review 63, 553–74 [22]

2. Kevin M. Clermont and Theodore Eisenberg (1995), ‘Exorcising the Evil of Forum-Shopping’, Cornell Law Review, 80, 1507–35 [29]

3. Ralph U. Whitten (2002), ‘U.S. Conflict-of-Laws Doctrine and Forum Shopping, International and Domestic (Revisited)’, Texas International Law Journal, 37, 559–89 [31]

4. Alan O. Sykes (2008), ‘Transnational Forum Shopping as a Trade and Investment Issue’, Journal of Legal Studies, 37 (2), June, 339–78 [40]

5. Richard Maloy (2005), ‘Forum Shopping: What’s Wrong With That?’, Quinnipiac Law Review, 24 (1), 25–62 [38]

6. Markus Petsche (2011), ‘What's Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of a Controversial Practice’, International Lawyer, 45 (4), Winter, 1005–28 [24]

7. Franco Ferrari (2013), ‘Forum Shopping: A Plea for a Broad and Value-Neutral Definition’, 1–33 [33]

8. Pamela K. Bookman (2016), ‘The Unsung Virtues of Global Forum Shopping’, Notre Dame Law Review, 92 (2), 579–635 [57]

PART II FORUM SHOPPING: WHEN AND HOW? [177 pp]
9. Mary Garvey Algero (1999), ‘In Defense of Forum Shopping: A Realistic Look at Selecting a Venue’, Nebraska Law Review, 78 (1), 79–112 [34]

10. Debra Lyn Bassett (2006), ‘The Forum Game’, North Carolina Law Review, 84 (2), 333–95 [64]

11. Emil Petrossian (2007), ‘II. In Pursuit of the Perfect Forum: Transnational Forum Shopping in the United States and England’, Loyola of Los Angeles Law Review, 40, 1257–335 [79]

PART III THE RIGHT AND DUTY TO FORUM SHOP [72 pp]
12. Ronald A. Brand (1998), ‘Professional Responsibility in a Transnational Transactions Practice’, Journal of Law and Commerce, 17, 301–42 [42]

13. Aaron D. Simowitz (2013), ‘A U. S. Perspective on Forum Shopping, Ethical Obligations, and International Commercial Arbitration’, in Franco Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context, Munich, Germany: Sellier European Law Publishers, 23–52 [30]

PART IV FORUM SHOPPING AND PRIVATE INTERNATIONAL LAW [188 pp]
14. Russell J. Weintraub (2009), ‘Rome II: Will it Prevent Forum Shopping And Take Account of the Consequences of Choice of Law?’, in John Ahern and William Binchy (eds), The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: A New International Litigation Regime, Leiden, the Netherlands: Martinus Nijhoff Publishers, 47–55 [9]

15. Csongor István Nagy (2010), ‘The Rome II Regulation and Traffic Accidents: Uniform Conflict Rules with Some Room for Forum Shopping – How so?’, Journal of Private International Law, 6 (1), 93–108 [16]

16. Patrick J. Borchers (2010), ‘Punitive Damages, Forum Shopping, and the Conflict of Laws’, Louisiana Law Review, 70 (2), Winter, 529–55 [27]

17. Christopher A. Whytock (2011), ‘The Evolving Forum Shopping System’, Cornell Law Review, 96 (3), March, 481–534 [54]

18. Mathias Forteau (2002), ‘The Diversity of Applicable Law before International Tribunals as a Source of Forum Shopping and Fragmentation of International Law: An Assessment’ in Rüdiger Wolfrum and Ina Gätzschmann (eds), International Dispute Settlement: Room for Innovations?, Heidelberg, Germany: Springer, 417–41 [25]

19. David L. Noll (2014), ‘The New Conflicts Law’, Stanford Journal of Complex Litigation, 2 (1), 40–96 [57]


Volume II

Acknowledgements

Introduction An introduction to all three volumes by the editors appears in Volume I


PART I FORUM SHOPPING AND UNIFORM SUBSTANTIVE LAW [170 pp]
1. District Court Rimini (Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.), 26 November 2002, 1–3 [3]

2. Franco Ferrari (2002), ‘Forum Shopping Despite International Uniform Contract Law Conventions’, International and Comparative Law Quarterly, 51 (3), July, 689–707 [19]

3. Franco Ferrari (2004), ‘Divergences in the Application of the CISG’s Rules on Non-conformity of Goods’, Rabel Journal of Comparative and International Private Law, 68 (3), 473–94 [22]

4. Franco Ferrari (2009), ‘Homeward Trend: What, Why and Why Not’, Internationales Handelsrecht, 9 (1), 8–24 [17]

5. Franco Ferrari (2008), ‘Choice of Forum and CISG: Remarks on the Latter’s Impact on the Former’, in Harry Flechtner, Ronald Brand and Mark Walter (eds), Drafting Contracts Under the CISG, Part III, Chapter 5, Oxford, UK: Oxford University Press, 103–48 [46]

6. Franco Ferrari (2012), ‘PIL and CISG: Friends of Foes?’, Journal of Law & Commerce, 31, 45–107 [63]

PART II FORUM SHOPPING AND JURISDICTIONAL ISSUES: U.S. [263 pp]
7. Linda J. Silberman (2012), ‘Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective’, South Carolina Law Review, 63, 591–615 [25]

8. Donald Earl Childress III (2012), ‘Forum Conveniens: The Search for a Convenient Forum in Transnational Cases’, Virginia Journal of International Law, 53 (1), 157–79 [23]

9. Ronald A. Brand (2013), ‘Challenges to Forum Non Conveniens’, New York University Journal of International Law and Politics, 45, 1003–35 [33]

10. Donald Earl Childress III (2013), ‘General Jurisdiction and the Transnational Law Market’, Vanderbilt Law Review en Banc, 66, 67–80 [14]

11. Linda J. Silberman (2017), ‘The End of Another Era: Reflections on Daimler and Its Implications for Judicial Jurisdiction in the United States’, Lewis and Clark Law Review, 19 (3), 675–92 [18]

12. Robin Effron (2015), ‘Atlantic Marine and the Future of Forum Non Conveniens’, Hastings Law Journal, 66, 693–718 [26]

13. Linda J. Silberman and Aaron D. Simowitz (2016), ‘Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?’, New York University Law Review, 91, May, 344–95 [52]

14. Maggie Gardner (2017), ‘Retiring Forum Non Conveniens’, New York University Law Review, 92 (2), 390–461 [72]

PART III FORUM SHOPPING AND JURISDICTIONAL ISSUES: EUROPE [109 pp]
15. King Fung Tsang (2010), ‘Forum Shopping in European Insurance Litigation: A Comparison between Jurisdictional Rules in the European Union and the United States’, Loyola of Los Angeles International and Comparative Law Review, 32, 239–71 [33]

16. European Parliament and Council Reg. 1215/2012 (The Brussels I Regulation Recast), 1–32 [32]

17. Pietro Franzina (2013), ‘The Recast of the Brussels I Regulation: Old and New Features of the European Regime on Jurisdiction and the Recognition of Judgments’, Blog of International Judicial Assistance, 1–9 [9]

18. Turner v Grovit (Case C-159/02 2004 ECR I-3565), Publications Office of European Union, 1–15 [15]

19. Owusu vs. Jackson (Case C-281/02 2005 QB 801), Publications Office of European Union, 1–20 [20]

PART IV FORUM SHOPPING AND ARBITRATION [192 pp]
20. Filip De Ly (2013), ‘Forum Shopping and the Determination of the Place of Arbitration’, in Franco Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context, Munich, Germany: Sellier European Law Publishers, 53–68 [16]

21. Loukas Mistelis (2013), ‘Setting Aside of Arbitral Awards and Forum Shopping in International Arbitration: Delocalization, Party Autonomy and National Courts in Post-Award Review’, in Franco Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context, Munich, Germany: Sellier European Law Publishers, 277–95 [18]

22. Linda Silberman and Maxi Scherer (2013), ‘Forum-Shopping and Post-Award Judgements’, in Franco Ferrari (ed.), Forum Shopping in the International Commercial Arbitration Context, Munich, Germany: Sellier European Law Publishers, 313–45 [33]

23. S.I. Strong (2013), ‘Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and
International Investment Arbitration’, Stanford Journal of Complex Litigation, 1 (2), 295–372 [78]

24. Margaret Moses (2014), ‘Arbitration/Litigation Interface: The European Debate’, Northwestern Journal of International Law and Business, 35 (1), Fall, 1–47 [47]

Index


Volume III

Introduction An introduction to all three volumes by the editors appears in Volume I


PART I FORUM SHOPPING AND DEFAMATION [122 pp]
1. Sarah Staveley-O’Carroll (2009), ‘Libel Tourism Laws: Spoiling the Holiday and Saving the First Amendment?’, New York University Journal of Law and Liberty, 4, 252–92 [41]

2. Trevor C. Hartley (2010), ‘”Libel Tourism” and Conflict of Laws’, International and Comparative Law Quarterly, 59 (1), 25–38 [14]

3. Lili Levi (2012), ‘The Problem of Trans-National Libel’, American Journal of Comparative Law, 60, 507–53 [47]

4. Peter Arnt Nielsen (2013), ‘Libel Tourism: English and EU Private International Law’, Journal of Private International Law, 9 (2), 269–88 [20]

PART II FORUM SHOPPING AND IP LAW [89 pp]
5. Chester S. Chuang (2012), ‘Offensive Venue: The Curious Use of Declaratory Judgment to Forum Shop in Patent Litigation’, George Washington Law Review, 80, 1065–114 [50]

6. Robert D. Swanson (2013), ‘Implementing the E.U. Unified Patent Court: Lessons from the Federal Circuit’, Brigham Young University International Law & Management
Review, 9 (2), 169–99 [31]

7. Peter Pinckney v KDG Mediatech AG., Case C-170/12 2013, 1–8 [8]

PART III FORUM SHOPPING AND COMPETITION LAW [69 pp]
8. Ronald A. Cass (2010), ‘Competition in Antitrust Regulation: Law Beyond Limits’, Journal of Competition Law and Economics, 6, 119–52 [34]

9. Hugh Mercer QC (2013), ‘Applicable Law in Cross-Border EU Competition Law Actions - Forum Shopping, Mandatory Rules and Public Policy’, in Mihail Danov, Florian Becker, Paul Beaumont (eds), Cross-Border EU Competition Law Actions, Chapter 22, London, UK: Hart Publishing, 329–36 [8]

10. Alison Jones (2016), ‘Private Enforcement of EU Competition Law: A Comparison with, and Lessons from, the US’, in Maria Bergström, Marios Iacovides and Magnus Strand (eds), Harmonising EU Competition Litigation: The New Directive and Beyond, Part I, Chapter 2, Oxford, UK and Portland, OR, USA: Hart Publishing, 15–41 [27]

PART IV FORUM SHOPPING IN INSOLVENCY PROCEEDINGS [234 pp]
11. Todd J. Zywicki (2006), ‘Is Forum-Shopping Corrupting America's Bankruptcy Courts?’, Georgetown Law Journal, 94 (4), 1141–95 [55]

12. John A. E. Pottow (2007), ‘The Myth (and Realities) of Forum Shopping in Transnational Insolvency’, Brooklyn Journal of International Law, 32 (2), 785–817 [33]

13. Wolf Georg Ringe (2008), ‘Forum Shopping under the EU Insolvency Regulation’, European Business Organization Law Review, 9 (4), 579–620 [42]

14. Gerard McCormack (2009), ‘Jurisdictional Competition and Forum Shopping in Insolvency Proceedings’, Cambridge Law Journal, 68 (1), 169–97 [29]

15. Marek Szydło (2010), ‘Prevention of Forum Shopping in European Insolvency Law’, European Business Organization Law Review, 11 (2), 253–72 [20]

16. Jennifer Payne (2013), ‘Cross-border Schemes of Arrangement and Forum Shopping’, European Business Organization Law Review, 14 (4), 563–89 [27]

17. Gerard McCormack (2014), ‘Bankruptcy Forum Shopping: the UK and US as Venues of Choice for Foreign Companies’, International and Comparative Law Quarterly, 63 (4), 815–42 [28]

PART V FORUM AND TREATY SHOPPING [84 pp]
18. Roos van Os and Roeline Knottnerus (2011), ‘Dutch Bilateral Investment Treaties: A Gateway to “Treaty Shopping” for Investment Protection by Multinational Companies’, Working Paper, October, Amsterdam, the Netherlands: SOMO, 1–49 [49]

19. William Lawton Kirtley (2009), ‘The Transfer of Treaty Claims and Treaty-Shopping in Investor-State Disputes’, Journal of World Investment and Trade, 10 (3), 427–61 [35]

Index

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