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LA REGULATION DE LA COMPETENCE JURISDICTIONELLE EN DROIT INTERNATIONAL PRIVE. Laurence Usunier, Assistant Professor, University of Luxembourg. Economica, Paris (2008) xvi and 530 pp, plus 37 pp Tables and Index. Softback, â55.
THE BRUSSELS REGULATION 44/2001: Application and Enforcement in the EU. Burkhard Hess, Professor of Law, University of Heidelberg, Thomas Pfeiffer, Professor of Law, University of Heidelberg, and Peter Schlosser, Professor of Law, University of Munich. CH Beck, Hart & Nomos (2008) xxvii and 212 pp, plus 11 pp Appendices and 5 pp Index. Hardback £66.
It is convenient to consider two European publications on the broad field of reform of the law on civil jurisdiction in the world as now given shape by the Brussels I Regulation. The first is the published version of a doctoral thesis submitted at the University of Paris I (Sorbonne), in which Dr Usunier attempts to construct a broad and outward-looking theory to explain when a court should and should not consider itself to have jurisdiction to adjudicate. She takes as her source material the law of France, as standing for the civil law tradition, the rules now incarnated in the Brussels I Regulation, which she accepts as being civilian from top to bottom, and the common law. Unusually, but in a manner which is quite exemplary, she approaches the common law of jurisdiction with a willingness to understand and appreciate its peculiar approach to questions which are common to all developed legal systems, and to which more than one honest answer is possible. Her investigation leads to her to conclusions which are highly interesting. They are not practical, in the sense that they do not represent a statement of law as currently in force anywhere; but they are principled, in that they analyse and seek to synthesize the various rules which govern the jurisdiction, the absence of jurisdiction in, and the interference with jurisdiction of, courts in international cases. Dr Usunier is not horrified by the idea that a court might be allowed a discretion to decline to adjudicate, and that this discretion might take account of the connections which tie the case to the court seised, and take account of the connections which connect the claim to the alternative court, and with the propriety (in a variety of senses) of the claimant’s choosing to seise a particular court. Nor is she appalled by the idea that, on occasions, a court may be justified in making orders which have the effect of impeding a party who is bringing, or proposing to bring, proceedings before a foreign court. The intelligent question is as to the use which a court may make of such principles; what should be the limits which the law places upon their international availability, and so on. From time to time we are reminded that national courts and national lawyers, struggling to give good answers to the novel questions presented by international civil litigation, may see and sympathize with a right or a remedy found in a system foreign to the one found at home. The novelty—but as a wholly happy one—lies in the demonstration that it is possible, even if at a level of some abstraction, to use all this material to tell a single, coherent, story. It may come as news to the functionaries of the European Court, fog-bound on the Kirchberg Plateau, but at the national level we all understand that there is point and profit in seeing how our neighbours meet the challenges we all face. Dr Usunier’s work is in this benevolent modern tradition of learning, and not in this malevolent modern tradition of petrified unreason. It is tremendously interesting, and those who can will gain much from reading it.
The book betrays and proclaims its origins as a Parisian thesis. Accordingly, its two Parts each break down into two Titles, which each break down into two Chapters, which each break down into two Sections, which each break down into two Sub-Sections. Beneath the Sub-Sections the ordering of headings is marginally more free; but the entire work seeks to convey the idea that everything is
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