International Commercial Litigation: Text, Cases and Materials on Private International Law

Citation

Hartley, T. C. (2020). International Commercial Litigation: Text, Cases and Materials on Private International Law (3rd ed.). Cambridge University Press.

Chapter Summary

The third edition has thirty chapters in five parts: Starting Off, Jurisdiction, Foreign Judgments, Procedure and Choice of Law. The publisher calls it a fully revised and restructured textbook with a comparative stance: the core areas are English and EU law, with extensive coverage of United States and Commonwealth law, and extracts from key cases and legislative acts are included alongside the explanation. A commentator on the European Association of Private International Law blog describes it as a mix of textbook and casebook, centred on international civil procedure, with a final part on choice of law.

Part I, Chapter 1: Introduction

Part I, "Starting Off", consists of a single chapter, "Introduction".

Part II, Chapters 2–12: Jurisdiction

Part II is the longest, with eleven chapters. Chapter 2 gives an analysis of jurisdiction in general terms, and Chapters 3 to 5 cover jurisdiction under EU law: the general rules, special jurisdiction, and the problem of pure financial loss, which the publisher singles out as a major update (a set of Court of Justice judgments on jurisdiction in tort, many involving investment loss). Chapter 6 sets out the traditional English rules, and Chapter 7 offers an outline of United States law. Chapter 8 deals with choice-of-court agreements. Chapters 9 and 10 take up jurisdictional conflicts, first under the common-law approach and then under the EU approach. Two special topics close the part: product liability (Chapter 11) and defamation (Chapter 12).

Part III, Chapters 13–17: Foreign Judgments

Part III opens with an introduction (Chapter 13) and then turns to foreign judgments under EU law (Chapter 14) and under English law, in two chapters titled "English Law: Jurisdiction" (Chapter 15) and "English Law: Defences" (Chapter 16). It ends with "US law: Some Highlights" (Chapter 17).

Part IV, Chapters 18–20: Procedure

The procedure part covers freezing assets (Chapter 18) and obtaining evidence abroad, treated both from the viewpoint of forum procedures (Chapter 19) and of international co-operation (Chapter 20).

Part V, Chapters 21–30: Choice of Law

The final part begins with an introduction to choice of law (Chapter 21) and then treats torts (Chapter 22) and contracts: the principle of party autonomy (Chapter 23), legal policy and choice of law (Chapter 24), and regulating business, protecting employees and helping consumers in the common-law countries (Chapter 25). Foreign currency (Chapter 26) and property in tangible movables (Chapter 27) follow, and the book ends with three chapters on contractual rights and property interests (Chapters 28 to 30).

Key Concepts

Part II: Jurisdiction

• Jurisdiction under EU law: the general and special rules by which courts of the Member States decide whether to hear a case, treated in Chapters 3 to 5.
• Pure financial loss: the problem of establishing jurisdiction in tort when the claimant's loss is financial, the subject of Chapter 5.
• Choice-of-court agreements: the effect of parties' agreement on the forum, in Chapter 8.
• Jurisdictional conflicts: what happens when courts in more than one country may hear the same dispute, in Chapters 9 and 10.

Part III: Foreign Judgments

• Foreign judgments: when a judgment given in another country will be given effect, under EU law and under English law, with defences considered separately.

Part IV: Procedure

• Freezing assets: orders that prevent a defendant from dissipating assets, in Chapter 18.
• Evidence abroad: how a litigant obtains evidence from another country, considered from the forum's procedures and from international co-operation.

Part V: Choice of Law

• Party autonomy: the principle that the parties to a contract may choose the law that governs it, Chapter 23.
• Legal policy in contract choice of law: how the rules deal with the protection of employees and consumers and the regulation of business, Chapters 24 and 25.
• Property and contractual rights: the choice-of-law rules for tangible movables and for rights arising from contracts, Chapters 27 to 30.

Critical Analysis

Strengths

• A comparative frame. The publisher stresses coverage of United States and Commonwealth law as well as English and EU law, and the EAPIL commentator describes the book as systematically presenting the positions of the EU, England and the United States. Chapters such as Chapter 7 (an outline of United States law) and Chapter 17 (United States law on foreign judgments) show how the comparison is built into the structure.
• Text and extracts together. The book combines explanatory text with extracts from judgments and legislation, which the publisher presents as meeting the practical needs of litigators as well as explaining the ideas behind the provisions.
• Procedure and choice of law in one volume. Besides jurisdiction and judgments, the contents include freezing orders, evidence abroad and a full part on choice of law, so a course on cross-border litigation can follow the whole life of a dispute from one book.
• Specific updates. The third edition adds recent case law from the Court of Justice, the English courts including the Supreme Court, and the Supreme Court of the United States, according to the publisher, together with a companion website for updates.

Limitations

• Dated EU framework. The edition was published in October 2020, before the end of the Brexit transition period on 31 December 2020. The publisher presents EU law as one of the book's two core areas, so the material on EU rules could not reflect the changes that followed. Readers should check what applies in England now.
• Not a full account of the subject. The title and the contents show a focus on commercial litigation. The contents list no chapters on family law or on succession, so a course on private international law in its widest sense needs another text.
• Order of topics. Choice of law comes last (Chapters 21 to 30), after jurisdiction, judgments and procedure, so a course that teaches choice of law first has to read the book out of order.

Where It Fits in the Course

Hartley is the course's text, cases and materials book on private international law in commercial matters. Adrian Briggs's The Conflict of Laws is an undergraduate-level introduction that brings in historical, economic and human rights perspectives and covers jurisdiction, choice of law and the recognition of judgments; it suits a first encounter with the subject and is a good complement to Hartley's more comparative, extract-based approach. David McClean's Morris: The Conflict of Laws is a student textbook on the same subject as applied in the English courts, and is the closer alternative for a course that stays within English rules.

For depth beyond the main text, Briggs's Private International Law in English Courts is a single-author treatise whose second edition was rebuilt to explain the law after the United Kingdom left the European Union, and so complements Hartley where the post-Brexit position matters. Cheshire, North and Fawcett: Private International Law is the long-established treatise on jurisdiction, choice of law and judgments, and extends into family law, property and succession, areas Hartley's contents do not cover.

How to Use This Book

The book suits undergraduate and postgraduate students taking private international law or international litigation, and practitioners who need extracts of the main authorities in one place. Prior study of contract and tort and familiarity with the English court system are sensible prerequisites for a book that discusses jurisdiction in tort and the law governing contracts.

A practical plan:

• Core: Part II on jurisdiction, read in order, since later parts build on it. The EU and English chapters (Chapters 3 to 6) and the treatment of jurisdictional conflicts (Chapters 9 and 10) are the backbone of a first course.
• Then: Part III on foreign judgments, and the choice-of-law chapters on torts and contracts (Chapters 22 to 24).
• Optional or selective: the United States chapters if the course is not comparative; the special topics on product liability and defamation (Chapters 11 and 12); the procedure part (Chapters 18 to 20); and the later choice-of-law chapters on foreign currency and property (Chapters 26 to 30).

Read the extracts with the commentary, not instead of it, and check the current English position on jurisdiction and judgments against the legislation and cases decided since 2020.