Welcome / Blog Archive / Book Review / 2022-06-doc2 Cuniberti’s 2nd ed. of Conflict of laws: a comparative approach

2022-06-doc2 Cuniberti’s 2nd ed. of Conflict of laws: a comparative approach

Textbooks for students, trying to master the theme conflict of laws (or: private international law (PIL) as many European continental countries term the subject), are rather straightforward. Several subjects in a systematic order presented, referenced with literature and case law. Many times, the legal scenery is rather unique, as conflict of laws can be found in national, European or ‘world-wide’ regulations, including conventions and treaties, as well – sometimes – in soft law instruments. The Dutch private international law handbook of M.H. ten Wolde (professor in Groningen and legal advisor) (written in Dutch) for instance is an example of such a textbook, see  https://bobwessels.nl/blog/2022-01-doc4-handboek-ipr/.

Innovative. A rather different way of handling the material is the textbook of prof. Gilles Cuniberti (Luxembourg) resulting in an innovative book offering a comparative treatment of private international law, using an approach of text and cases combined and systematically presenting and comparing civil law and common law approaches to the main themes of PIL. The book covers five parts (Choice of law; jurisdiction; foreign judgments; contracts; torts) and is explicitly designed as a teaching tool for students prior to going to classes and to prepare themselves for class gatherings, where discussion and debate should take place. It is written in a way that it can be used by students (or practitioners I would add) that can add a layer to their ‘national know how’. It would fit well in programmes of transnational legal educations.

Broad palette of legal materials. The materials used are adopted from the UK, the US and several European countries, as well as offering additional updated insights into rules applicable in other jurisdictions such as Japan and China. As an example, I use the theme of ‘renvoi. A reference to the ‘applicable law’ of another state, should it be taken to mean a reference only to that state’s internal law, designated by the respective conflict of law rules and without a reference to the latter state’s private international law? And if it refers to the PIL of the addressed state, that law could again refer to the law of the state that ‘started’ the referral to the law of the other state, etc. This subject is explained by using a New York County court case of 1950, a High Court case from 1930, the Dutch Civil Code (Article 10:31), other legislation from Italy, Germany and Japan, a French Court de Cassation case of 2020 and the (no) revoi provisions in Rome II and the EU Succession Regulation. The book is useful in understanding the subject, but I can imagine that it will only come to full fruition and a certain grip on the matters during these class discussions. These should also serve the goal of getting the student to think about pros and cons of solutions found.

Hybrid book. Flipping through the book one meets the terms and jargon that can make PIL so mysterious, such as lis pendens, forum non conveniens, ‘comity’ (including the famous 1895 Hilton v Guyot case from the US Supreme Court), the reciprocity requirement (including references to laws of Germany, Egypt, China and Israel) or recognition of judgments. All in all, a fascinating and eclectic picture of legal rules where the lecturer can help the student to understand these better. And certainly worthwhile is a companion website of the publisher to make available additional or updated materials or supplements of materials, e.g. to large to print.

Insolvency law? Cuniberti certainly is innovative in his lecturing method. In his field, however, he is a traditionalist. He belongs to that (rather large) traditional school of PIL specialists by not paying attention to international or European insolvency law. That is strange, given, for example, the 10 provisions that the European Insolvency Regulation devotes to it (the Flemish author Prof. Van Calster spends about 50 pages on this regulation (see https://bobwessels.nl/blog/2016-04-doc2- van-calster-on-pil/). Since 2019, the subject has also been on the national Dutch agenda for the relationship with non-EU member states (https://bobwessels.nl/blog/2017-11-doc3-wetgever-regel -international insolvency law/), but I would like to point out that this agenda is very patient. Progress is hardly noticeable. Applicable law is, since last year, on the agenda of UNCITRAL’s ‘insolvency’ agenda. In addition, ‘insolvency law’ is imposing itself on existing PIL instruments (for example Rome I), for instance through the introduction and implementation of Directive 2019/1023 regulated consensual ‘preventive restructuring’ agreements (in essence multi-party agreements). Maybe, the reader can expect a supplement on the website.

 

Gilles Cuniberti, Conflict of Laws: A Comparative Approach. Text and Cases, Edward Elgar, second edition, 2022. ISBN: 978 1 83910 654 5

Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at www.bobwessels.nl.