INTERNATIONAL COMMERCIAL LITIGATION. Richard Fentiman, Solicitor, Fellow of Queens’ College, Reader in Private International Law, University of Cambridge. Oxford University Press, Oxford (2010) lxiii and 718 pp plus 48 pp Index. Hardback £175.
It has been apparent for several decades that, in the commercial sphere, the world of private international law has been going through a process of evolution—some would say, experiencing a revolution. One aspect of this development is that “international commercial litigation” has become “an emergent discipline” (see C MacLachlan, “International Litigation and the Reworking of the Conflict of Laws” (2004) 120 LQR 580, 607). Writing in 2004, a leading practitioner-turned-academic noted that international commercial litigation is “a distinct subject” with “its own texts” (ibid, 593. He identified two such texts: A Briggs & P Rees, Civil Jurisdiction and Judgments—now in its 5th edn, 2009—and J Hill, International Commercial Disputes—now, Hill & Chong, 4th edn, 2010). To this body of literature, there must now be added Richard Fentiman’s hugely impressive International Commercial Litigation, recently published by Oxford University Press.
Fentiman’s starting point is that transnational commercial transactions involve risk—both transactional and litigational. One of the functions of the legal framework which regulates the resolution of international commercial disputes is to enable contracting parties to manage that risk (for example, by the use of jurisdiction agreements and contractual choice of law clauses) or, if they are not able easily to manage that risk (such as in certain situations involving non-contractual obligations), at least to assess it and act accordingly. As Fentiman notes, “the purpose of litigation is settlement” (p xi). The central theme of Fentiman’s work is how English law addresses the various types of risk associated with cross-border transactions, thereby (indirectly) determining the strategic choices which disputing parties will take and the terms on which international commercial disputes will typically be settled.
At first glance, the table of contents may have a slightly unfamiliar ring. International Commercial Disputes is divided into six parts: “Introduction”, “Legal Risk and Multistate Transactions”, “The Laws Governing Multistate Transactions”, “Commencing Proceedings”, “Preventing Proceedings” and “Recovery and Enforcement”. However, on closer examination, it becomes clear that the matters addressed by Fentiman’s text are, for the most part, the staple diet of the private international lawyer. After an introductory chapter, the next two chapters address the central mechanisms whereby potential litigants may seek to limit transactional risks associated with cross-border activity: jurisdiction agreements (ch 2) and choice of law agreements (ch 3). These are then followed by chapters which focus on choice of law relating to contract and property (ch 4), theoretical choice of law topics—notably characterisation and renvoi (ch 5), proof of foreign law (ch 6), a variety of jurisdictional issues, including the bases on which jurisdiction may be assumed and the circumstances in which jurisdiction must be declined or proceedings may be stayed (chs 8–13), anti-suit injunctions (ch 15), choice of law relating to non-contractual obligations (ch 16), provisional measures (ch 17) and the recognition and enforcement of judgments (chs 14 and 18).
It would be wrong, however, to see Fentiman’s work as a textbook on the (commercial) conflict of laws; indeed, it is not intended to be one. While there is very detailed consideration of many
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