The Member States of the European Union have created an internal market where movement of goods, services, persons and capital should be as easy across borders as it is within a single Member State. This is achieved by Treaty Articles which prohibit restrictions on free movement and discrimination, and by harmonisation. The process of harmonisation is complex and contested because it goes to the heart of how much power the EU has, and how much uniformity between Member States is required. The creation of common standards, although done by legislation, is a technocratic process in which it is sometimes claimed that non-scientific interests such as culture and identity are not adequately represented. As well as this, a well-functioning internal market has side-effects, such as regulatory competition, which put pressure on national standards and may undermine national preferences.

Conflict of laws (or private international law) deals with cross-border legal relationships involving private parties. Methods of modern conflict of laws originate in Europe and largely remained intact until today despite modifications brought about by the US Conflicts Revolution. Other parts of the world, that is, Latin America, Asia and Africa, have not been on the centre stage. Even the recent globalisation discourse on legal pluralism and conflict of laws has principally focused on Western, developed countries, although the wave of globalisation affects the entire world. Countries in the Global South have been invisible presumably because, as former colonies, they are not readily accessible, are presumed not to have sophisticated conflicts rules, or are deselected by the choice of forum/arbitration clauses in cross-border business transactions. This chapter will deal with comparative conflict of laws from a non-Western viewpoint. This stance will allow for the relativising of the trends of conflict of laws in Europe and America and shed light on the recent debates on corporate due diligence and Sustainable Development Goals (SDGs) in conflict of laws by considering interests of the most affected and vulnerable people in the Global South. This chapter will also discuss future developments of conflict of laws treaties, which Asian and African countries have rarely joined so far.

To what extent does soft law ensure harmonisation? Does it replace the governing law or does it complement it?

The International Law Commission has described the operation of the VCLT rule of interpretation as a ‘crucible’, whereby it is the combination of the interpretative principles contained in the VCLT rule that in each case yields the meaning of treaty provisions. Taking that view as its starting point, Chapter 4 points out that different interpretative VCLT principles may be assigned different weights in different cases, depending on the drafters’ constructed intention followed by the adjudicator in each case. The underlying idea, therefore, is that all these interpretative principles must hang together well and must be combined in a way that makes sense in the context of each case. This is a sign that considerations of coherence are apposite in the operation of the VCLT rule, acting as reasons that justify the above combination in each case and ultimately account for the outcome’s persuasiveness. In the process, the chapter identifies two key coherence-related processes: framing and normative contextualisation

Due to the operation of territorial sovereignty, a foreign decision has no extraterritorial reach unless and until it is given effect by an enforcing court (on behalf of the enforcing State). Although many enforcing courts regularly recognise or enforce foreign decisions, this state practice is not considered specific enough to create binding rules of customary international law mandating enforcement or recognition.1 This is so despite recurrent arguments that giving effect to foreign decisions ought to be considered a matter of customary international law.2 Absent treaty or supranational commitments, recognition and enforcement is then solely a matter for national law, as foreign decisions have no independent legal effect without being deferred to or incorporated by some way into the enforcing State. In the extreme, national law can insist that if disputants want to progress amatter, they must retry it within the confines of the enforcing State’s jurisdiction. Such an exercise of sovereignty is not problematic in and of itself. It has value in the overall coherence of a system of entitlements premised upon municipal law, allowing for the preservation of the values and interests of the sovereign (as represented by the devolution of legal power to the enforcing court).3 Exercise of sovereignty in this way at the enforcement stage also provides an ultimate check on what might otherwise be an unbridled or inappropriate forum or dispute resolution mechanism selection on the part of claimants.4

Mediation is neither novel nor new. However, traditional forms of mediation are different from modern mediation practice; in traditional forms, the role and social standing of the mediator are central to the process, and the outcome focuses more on social harmony than on the individual rights or interests of the parties. This difference has given rise to two broad mediation cultures. Cultural differences can be reflected in different approaches to meeting needs, and can shape the interests of the parties and party behaviour during the process. As an informal and adaptable process, mediation offers the possibility of greater sensitivity to cultural differences. A consequence of globalisation has been the increasing harmonisation of laws and practices, and the harmonisation of dispute resolution systems is an important part of this movement. This is reflected in the emergence of several regional and international instruments, the most recent of which is the Singapore Convention. What matters is the potential for any new regional or international legal instrument to be effective and have a positive impact on the people and corporations involved in cross-border legal relationships.

There have been increasing and stronger calls for greater integration of many Asian economies, either within the confines of ASEAN or on a more geo-economically strategic scale that would include major Asian jurisdictions like China, Japan, and Korea. A number of key personalities within the regional legal fraternity have advanced views that such integration ought to occur through the harmonization of legal rules, arguing amongst others that in so doing uncertainty and other transaction costs would be reduced and commercial confidence within the region concomitantly increased. That commercial law has come under the lens as a particularly suitable candidate for harmonization is, in a sense, unsurprising. It is for one ostensibly seen as a technical and relatively uncontroversial area of law, as opposed, for instance, to public law. For another, or probably for that precise reason, this area has been the historical choice for attempts at harmonizing substantive law – think of the CISG, the UCC in the United States or the recently proposed CESL in the European Union. This edited volume brings together eminent and promising scholars and practitioners to investigate what convergence and divergence means in their respective fields and for Asia.

This chapter seeks to identify the particularities of the AFSJ relevant to delineating the scope of the Charter. It outlines the regime governing the application of the Charter pursuant to Article 51(1) and describes how this regime plays out in the AFSJ. It also clarifies the role of other criteria traditionally used to determine scope, such as territorial, personal and temporal considerations. The chapter focuses on some of the particularities affecting the determination of the scope of the Charter in the AFSJ. It is suggested that, more than merely an interesting field to test the general limits of EU fundamental rights, the AFSJ represents a specific area of law that has moved the Charter into a more central position in EU case law, thereby consolidating the role and identity of the CJEU as a fundamental rights court.

Human health research is a vast enterprise; worldwide, hundreds of billions of dollars are spent annually on health research involving millions of research participants. This research is guided by multiple regulations and guidance documents that commonly reflect several core principles: the protection of the rights and welfare of individual research participants; the promotion of justice in the practice and outcomes of research; and that human health research should be socially valuable. However, these generally accepted principles belie an ongoing tension between the protection of individual participants through appropriate regulation, and the facilitation of health research. In this chapter I highlight areas that have and, I suggest, will continue to stretch health research regulation, requiring the regulatory infrastructure to adapt and evolve in order to be both effective and efficient. In doing so, I point to changes in risk assessment considerations, underlying trends toward harmonisation and streamlining of research regulation, and alternative approaches to consent. However, I also highlight countertrends that may serve to undermine these changes. Thus, like the red queen in Lewis Carroll’s Through the Looking-Glass, I propose that the health research regulatory system runs and runs as fast as it can, only to remain in the same place.

This chapter gives an overview of the disciplines regarding international regulatory co-operation that exist in the SPS and TBT Agreements. It argues that to complement the transparency obligations of the two Agreements, a number of provisions encourage WTO Members to engage in regulatory co-operation, that can take place either bilaterally or multilaterally in the context of the WTO. This regulatory co-operation that is both encouraged by the SPS and TBT Agreements and enabled by the Committee meetings takes place at the early stages of the domestic regulatory process regarding trade-related measures, and is an essential complement to both the substantive obligations presented in Chapter 1 and the transparency obligations presented in Chapter 2. Indeed, together, these different legal disciplines of the SPS and TBT Agreements allow Members to understand better each others’ regulations and participate directly in each others’ regulatory processes, thus ultimately preventing disputes from rising.