In his seminal work The Multinational Challenge to Corporation Law Professor Phillip Blumberg assets that, “jurisdiction continues to be one of the most litigated areas involving the clash of enterprise and entity.”1 Indeed, in a world where business is increasingly conducted through the medium of economically integrated multinational enterprises (MNEs), the question of whether a forum has jurisdiction over disputes arising out of the operations of non-resident entities of the MNE brings into contrast the mismatch between the territorial reach of the legal system and the transnational reach of the enterprise. In terms of corporation law this raises the further matter of whether, and how far, the legal organisation of the MNE into distinct legal entities, in distinct legal jurisdictions, should affect the applicable rules of private international law as to the reach and scope of forum jurisdiction. Such issues have recently been aired before the English courts in a series of cases, arising out of the asbestos mining and milling operations of the British based MNE Cape plc in South Africa, which culminated in a judgment given by the House of Lords on 20 July 2000. It is the purpose of this paper to explore the issues of jurisdiction over non-resident entities of MNEs, first, through an examination of these cases in the light of Cape's industrial and management structure. It is striking how little such matters are addressed in the Anglo-American legal literature pertaining to private international law. Rather than considering the economic realities of the cases in issue, and developing new doctrines to deal with them, lawyers have tended to rely on legal concepts—in particular, the territorial nature of legal jurisdiction and the single unit corporate form—to lead them to often unsatisfactory results that would appear to a lay person not to accord with justice. A clearer understanding of the economic realities of group operations thus seems essential for the development of law in this area.

Critical to analysing the recent synthesis of criminal trial procedures is an understanding of the internationalisation of criminal law and procedure.1 As well as the creation of international tribunals2 to investigate and try crimes of world significance, there is emerging an international jurisprudence on criminal law (and procedural hybrids to support and develop this) which require integrated analysis.3

In a famous act of studied neutrality the framers of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS)1 left nations adhering to the Agreement completely free, in Article 6 of that document, to determine the extent to which they would allow the parallel importation of products affected by intellectual property rights which had been lawfully placed on the market outside the jurisdiction.2 The hands off approach embodied in Article 6 came as no surprise to commentators and TRIPS watchers. What to do about parallel importing has always been an issue which has deeply divided the world's trading nations and continues to be the subject of vigorous debate within them.3 Intellectual property owners and their licensees are uniting across national borders not just to defend historically entrenched advantages but also to portray these advantages as so much a part of the post TRIPS order that their extension (at home as well as abroad) seems both natural and inevitable. Importers and would-be importers outside existing distribution networks not unnaturally remain sceptical of arguments which threaten to replace tariffs and import restrictions with private law barriers to entry, barriers backed by both civil and criminal sanctions. In Australia and New Zealand these self-interested opponents of parallel importing have, in recent years, been joined in their scepticism by competition regulators and policy makers eager to bring to bear on the debate economic insights derived from detailed analyses of the impact of such restrictions both on particular product markets and the national economy as a whole. Increasingly too, the wider consuming public has begun to see that grey markets have charms hitherto invisible behind now removed protectionist walls.

The provision of legislative or other legal protection for linguistic minorities is widespread in domestic legal systems.1 In international law, and in international human rights law in particular, the question of minority language rights has until recently received much less attention. The entry into force on 1 March 1998 of the Council of Europe's European Charter for Regional or Minority Languages (the “Minority Languages Charter”), the first international instrument directed solely at the question of language, suggests that the situation may be changing.

There was a time when international law was perceived as consisting of a manageable corpus of rules over a finite, ascertainable subject matter, relevant to the relations of States with each other.

Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4

Over the course of the last hundred and fifty years or so the general trend in the laws of Western European countries has been, first, to make provision for judicial divorce and, second, to make it easier for parties to a marriage which has broken down to obtain such a divorce. This coupled with increased mobility has added to the significance of the law relating to the recognition of foreign divorces. The law's essential task is to strike the right balance between, on the one hand, being too restrictive, thereby creating “limping” marriages (i.e., marriages which are valid in one or more countries, but not others) and, on the other, being too generous, thereby sanctioning “quickie” divorces or divorces of convenience.1

Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.

As mentioned in the previous note1 the Amsterdam Treaty significantly alters the treaty structure as regards the free movement of persons. The EC treaty now has, as one of its formal activities as set out in article 3(1)(d), “measures concerning the entry and movement of persons as provided for in Title IV”. The creation of a new Title IV in the EC Treaty on establishing an area of freedom, security and justice moves a corpus of subject matter2 from the inter-governmental pillar on Justice and Home Affairs to the Treaty of Rome. The aim clearly set out is to establish, within five years, all the measures necessary to create “an area without frontiers” in accordance with Article 143 together with “flanking measures with respect to external board of controls of asylum and immigration” as well as “measures to prevent and combat crime in accordance with the provisions of Article 31 (e) of the Treaty on European Union”.4 Co-operation between the Member States is also to be strengthened and encouraged5 as well as measures in the field of police and judicial co-operation in criminal matters though the latter is in accordance with the provisions of the Treaty on the European Union.6

Since the 1997 Amsterdam Intergovernmental Conference a sea-change in the formulation and implementation of European Union Social Law and Policy has taken place in response to the demands made by economic, political and monetary union. The evolution of EU social law is an area which has developed within a process or framework of “differentiated integration”,1 not only between the Member States, but also the regions of the EU. Since its emergence in the EU Council's Conclusions of 22 June 19842 the concept of a “European Social Area” has slowly been created by the processes of “Europeanisation”3 of social policy whereby through EU-led processes a “re-nationalisation”4 of domestic policies has taken place. The process is similar to the ideas of “re-regulation” of national law in relation to the basic economic freedoms of the EC Treaty whereby a measure of national autonomy can only be retained through European Community law standards. It is striking how the Amsterdam IGC has led to a definite shift in the paradigm of EU social policy law with distinctive aims, values, processes, new legal tools and new political actors.

Once again cases concerned with the threshold questions of private international law, such as characterisation and jurisdiction, have dominated the scene.