Following doi moi (renovation) market reforms in 1986, the Vietnamese government urgently required commercial laws capable of regulating the rapidly emerging private sector. Along with contract and property laws, lawmakers considered company law essential for a market-based legal framework. Since reforms could not wait the decades required to distil normative standards from local commercial practices, lawmakers turned to Western laws for inspiration.1

Legislative reforms have been introduced in several European states to tackle the question of the legal recognition of same-sex relations, with the Nordic countries taking the lead.1 Changes in the attitude of the general public towards gays and lesbians, as demonstrated by the publicity and popularity of Gay Pride marches throughout Europe, has brought the issue to the fore of the political and legal arenas. France has been no exception, with the public debate on the recognition of same-sex couples culminating in the recent adoption of the law relating to the Pacte Civil de Solidarité (PACS) which provides for the registration of a couple's partnership regardless of sex.

The characteristics of market places do not nowadays correspond to the characteristics of national territories of states. Goods and services are marketed throughout the world without respecting national barriers. This is why advertising activities are designed to reach many customers in many countries. The Internet has forced this development in the last 15 years. It has been transformed from a means of communication among research scientists into a means of mass communication, an indispensable part of many peoples every-day lives.

A pressing issue of the day requiring authoritative resolution is whether public officials when in office carrying out their official functions may be prosecuted by the courts of other countries for alleged international crimes. Objection has been made, though not by the Danish Government, to a new ambassador appointed by the State of Israel, taking up his appointment as head of the Israeli diplomatic mission in Copenhagen, on the ground of his implication in war crimes. Recently, criminal proceedings were brought in the French courts against Colonel Ghadaffi as the serving Head of the State of Libya for complicity in acts of terrorism resulting in the destruction of a French civil aircraft and death of all its passengers. Writing critically of the Lords' decision in the Pinochet case, Henry Kissinger talks of the tyranny of judges replacing that of government, of prosecutorial discretion without accountability and warns that ‘historically the dictatorship of the virtuous has often led to inquisitions and witch hunts’.

On 11 July 2001 the Commission adopted its Communication on European Contract Law,1 which has received a lot of attention in academic discussion.2 In the following the main contents of the Commission Communication will first be summarised. In addition the political and institutional context shall be described which is important for the understanding of the Communication and the future prospects. Finally, we will try to demonstrate, how—according to the Council report3 and the European Parliament (EP) resolution4 concerning the Communication—these future prospects could develop4a.

The title for this paper poses a deceptively simple question, and it is this: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? To this question the answer might appear obvious: one reaches for the doctrine of res judicata, that arcane yet fundamental body of law which provides that an earlier judgment is conclusive in a second suit involving the same subject-matter and same legal bases. However, while the doctrine of res judicata is well understood in the domestic setting, it is not entirely obvious how the doctrine applies to foreign judgments to prevent abusive re-litigation before the English courts. Nor is it obvious how the various judgment recognition regimes—in particular the regime established by the Brussels Regulation1—pre-ordain the preclusive effects to which a foreign judgment can give rise if relied upon to prevent abusive cross-border re-litigation.

Third party procedure has the merits of saving time and expenses and of preventing inconsistent decisions through eliminating the duplication of proceedings. Because of these procedural merits, third party proceedings (called ‘Part 20 proceedings’1 in the Civil Procedure Rules 1998 (CPR)) are often instituted to bring a claim for contribution. In English law, contribution claims are allowed under the Civil Liability (Contribution) Act 1978 (hereafter the 1978 Act) between wrongdoers such as tortfeasors and defaulters in contracts. Not all legal systems allow contribution claims in such wide circumstances. A third party claim form (called a ‘Part 20 claim form’ in the CPR) may be served out of the jurisdiction under the CPR Rule 6.20(3 A),2 which provides for a special base of jurisdiction for third party proceedings in the case where the third party is a ‘necessary or proper party’ to the claim against the Part 20 claimant. The service is, however, subject to the permission of the court which will not be given unless England is judged to be clearly the most appropriate forum under the forum conveniens discretion.

In seven years of WTO dispute settlement (1995–2001), six panels appointed scientific experts,2 two panels requested expert advice from other international organisations3 and one panel nominated a linguistic expert.4 Under GATT 1947, in contrast, only one panel saw the need to seek expert advice.5 Very often also the parties to a WTO dispute nominate experts on their delegation, be they lawyers, economists, scientists or linguists. In addition, an increasing number of ‘outsiders’ or amici curiae, such as NGOs, but also industry and academics, have pressed their (expert) opinion on WTO panels and the Appellate Body.

Party autonomy is the basic principle for international contracts. By making a ‘choice of law’, the parties to a contract can agree amongst themselves which law is to regulate their contractual relationship. In international transactions, the law of the parties' choice replaces the law that would otherwise have governed the contract, including the mandatory rules (ius cogens) of the latter law. Article 3 of the 1980 Convention on the Law Applicable to Contractual Obligations (hereafter: the ‘Rome Convention’) fully recognises this principle of party autonomy. Under Article 3 the parties are free to choose whichever law they deem appropriate to govern their contractual relationship. It is not even necessary for the transaction to display some connection with the chosen law.

It is a measure of how fast International Law is moving that the International Court of Justice found itself deciding a question on immunity for international crimes just three years after Pinochet (No 3).1 Yet its decision in Congo v Belgium2 represents something of a return to conservatism in this field, and prompts a re-evaluation of Pinochet. Congo v Belgium may itself come to be seen as at least as significant for the ICJ's—divided—views on the issues which it did not decide, as for the ratio itself.

One of the asserted advantages and goals of the unification of substantive law lies in the prevention of ‘forum shopping’,1 ie the lawyer's act of seeking the forum that is most beneficial to his client's interest.2 This has been pointed out not only in discussions on unification of law in general,3 but also in discussions on specific international uniform contract law conventions, such as the United Nations Convention on Contracts for the International Sale of Goods4 (hereinafter CISG),5 the Geneva Convention on the Contract for the International Carriage of Goods by Road6 (hereinafter CMR)7 and the UNIDROIT Convention on International Factoring8 (hereinafter IFC).9

In October 2000 an informal working group of the United Nations Commission on Human Rights met to discuss the latest drafts of an Optional Protocol to the 1984 United Nations Convention against Torture. The Working Group itself met for its 9th session in February 2001 and its 10th session was held in January 2002.2 The primary purpose of this Optional Protocol is to create a new international mechanism that will have a preventive role and which would operate by conducting visits to states and to places of detention within states and, in the light of such visits, enter into a ‘dialogue’ with the state concerned in order to help them ensure that torture does not occur. The origins of this initiative lie in a proposal formally tabled in the early 1980s during the negotiations that led up to the adoption of the UNCAT itself but at that time it was clear that so radical a move as the establishment of an international body with an automatic right of entry into any place of detention would be unacceptable within the broader international community.3 However, the idea was taken up on a regional level within Europe and in 1987 the Council of Europe adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which established the European Committee of the same name (known as the CPT), very much by way of an example to the rest of the world, or so it was thought.4

Of the thousands of Taliban and al Qaida fighters captured in the recent conflict in Afghanistan, just under 500 are held by US forces, including some 300 at the Guantanamo Bay base, Cuba.1

This comparison involves the study of two very different forms of remedy. These are the Scottish Arrestment and the English Freezing Order.2 The Freezing Order is a relatively recent common law creation which contains features unusual amongst Convention jurisdictions. The continental origins of the Arrestment over 400 years ago, and its existence in a jurisdiction based upon the Civil Law unaltered by the Code Napoleon, have given rise to a remedy which is a member of the same family as its continental equivalents but different again. Indeed as we shall see, these measures are so different that most of the possible features of remedies of their type lie in the contrast.

John takes Mary for a romantic evening walk in Covent Garden and declares that a diamond he owns, which is in a vault in France, is now hers. One month later, without having received the diamond, Mary leaves John for another. Within a year, John has engaged himself to Jane, upon whom he also bestows the diamond. John and Jane spend their honeymoon in Paris and, while they are there, John ‘delivers’ the diamond to Jane. Mary sues Jane in England for conversion and asks that Jane be ordered to return the diamond to her. According to English law, the transfer of title by way of gift depends on delivery.1 Thus, since only Jane took delivery, she has title and Mary's claim will be dismissed. In French law, by contrast, property in a gift passes without delivery.2 As a result, Mary has title to the diamond and Jane is holding it unlawfully. The case turns exclusively on the choice-of-law question, ‘Which law should govern?’

On 16 March 2001 the International Court of Justice gave judgment in what was then its most longrunning case. It was in 1987 that Qatar and Bahrain had begun a process of attempting to agree upon the submission of their differences to the Court, but although they were able to agree upon the subject matter in dispute, they could not agree upon its legal characterization and the manner in which the dispute should be placed before the Court. That notwithstanding, and basing itself upon the agreed minutes of a meeting held at Doha in December 1990, Qatar unilaterally instituted proceedings against Bahrain on 8 July 1991. Bahrain raised preliminary objections to the jurisdiction of the Court and the admissibility of the case which were first addressed by the Court in its judgment of July 19941 and, following a reformulation of elements of the Qatari application in November 1994, the application was declared admissible in February 1995.2 During the course of the subsequent written pleadings a further dispute arose concerning the authenticity of 82 documents annexed to the Qatar Memorial and, following exchanges on the matter, Qatar announced that it would not rely on the disputed documents.3 Oral hearings were held in May 2000 and judgment given some ten months later. The two principal elements of the case concern, first, the disputed title to, and status of, a number of islands, maritime features and a portion of the Qatar peninsula and, secondly, the course of the maritime boundaries between them. The case was extremely complex, with disputed characterizations of the physical and legal

Britain's Trident nuclear missile programme has long been politically controversial. In 1999, the controversy entered the judicial arena in Scotland, in two cases involving ‘direct action’ against Trident installations by anti-nuclear activists. In both cases, the actions were intended not as protests against Britain's nuclear-weapons policy, but rather as actual operations to disable the weapons themselves. The acts were, in other words, in the nature of acts of sabotage. Both incidents led to criminal prosecutions. In both cases, the accused parties sought to use international law as a defence. In both cases, the Appeal Court of the High Court of Justiciary—the highest court for criminal cases in Scotland—rejected the defence. In the process, however, the Appeal Court had occasion to expound upon some controversial points regarding nuclear weapons. Each of these cases will be discussed in turn.

The United States response to the terrorist attacks of 11 September 2001 was encouraging for those who worry about a tendency towards unilateralism on the part of the single super-power. The US deliberately engaged a number of international organisations and built an extensive coalition of supporting States before engaging in military action.

The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities.1 Although the facts differed, the arguments of the applicants were much the same. They contended that allowing a foreign State or an international organisation to claim immunity in a civil action in proceedings in the defendant State violated the applicants' rights to access to a court for the determination of a civil right.2 The European Court accepted the claims in principle but concluded in each case that the limitation imposed on the right of access was for a legitimate reason (the protection of State or international immunities, a condition for effective co-operation between States or with international organisations) and was proportionate to this aim, because in each case, the grant of immunity was required by international law and that in each case there was the possibility of the applicant using another procedure to try to assert his rights, action in the courts of the foreign State or under the special staff regime of the international organisation.

In three judgments delivered on 27 September 2001, the European Court of Justice ruled on the legal effects of clauses in the Europe Agreements which accord candidate country nationals limited rights to establish themselves as self-employed persons in the Member States of the European Union (EU).1 The Court refused to interpret these provisions as steps on the road to full-fledged EU membership which should be given a dynamic reading in order to provide continuing impetus for enlargement. The significance of these judgments lies less in their legal pronouncements than in their wider political implications. The judgments indicate that the Court is not prepared to act as a second chaperone of the process of enlargement alongside the Commission.