Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

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Preface

For more than a century private international law essentially was an academic discipline. As compared with other areas of the law, few cases came to the courts, and each of them would trigger an avalanche of scholarly writings. Private cross-border relations were not very frequent and legal disputes arising therefrom even less. In addition, the whole discipline was principally a European one. After World War II this changed, first in what became known as the Western World, and after the collapse of the socialist systems in Eastern Europe around 1990 worldwide. Since then, private relations, litigation and arbitrations raising issues of private international law have become a mass phenomenon.

The globalization of societal and economic relations is mirrored by an extraordinary increase of decisions and arbitral awards, of institutions, periodicals and other publications dealing with the practice of private international law around the globe. In addition, each year witnesses the enactment of new comprehensive national legislation as well as the adoption of a large number of international and notably European legal instruments in the field. In sum it is, therefore, fair to say that private international law has moved from the outskirts of the legal system to its centre.

Legal education and information as well as academic discourse have not fully kept track with this development. In many countries lawyers still know very little about the discipline. And what they know is usually confined to the law of their own jurisdiction although international private relations require a broader knowledge that transgresses domestic boundaries. In a similar vain, academics very often focus on their own national legal system of private international law including international and European instruments applicable in their country. In contrast, a global and comparative perspective is very often lacking.

The Encyclopedia which the editors hereby present to the public sets out to improve the availability of information about private international law and to present the field from a global and comparative perspective. It is meant to provide a survey of the current state of legislation and case law in as many countries as possible, to introduce the reader to the institutions, issues and theories that have emerged over time, to provide information on the most significant institutional actors in the field, and to remind of those scholars who have made important contributions to the evolution of the discipline in the past. We thereby hope to enable lawyers interested in the different areas of private international law to gain quick access to the subjects treated and to further readings. And we hope to stimulate a more comparative and functional discourse about private international law as such and to lay the foundation for further research.

The Encyclopedia consists of four volumes. Volumes 1 and 2 contain 247 alphabetically sorted entries. They analyse a wide range of topics of private international law from a comparative perspective taking into account recent developments on the national, European and international level. In choosing the topics we focused on the traditional areas of private international law, ie jurisdiction, applicable law, recognition and enforcement of foreign decisions as well as cross-border legal cooperation in private matters. But we have also endeavoured to look beyond the traditional boundaries of the discipline into neighbouring areas such as comparative law and uniform law, human rights, EU law and public international law as well as law and economics. Volume 3 contains 80 national reports. They describe the private international law regimes of selected countries and analyse global and regional trends. To complete the picture, the national reports are accompanied in Volume 4 by a collection of legal instruments of private international law either in the original English language of promulgation, if any, or in English translation (see for a more detailed account the Explanatory Note to Volume 4). Entries, national reports and translations reflect the state of law in early 2016 unless indicated otherwise.

The Encyclopedia was originally meant to be called ‘European Encyclopedia of Private International Law’. However, during the production process it became clear that this title would not have properly reflected the Encyclopedia’s scope: the entries and national reports to be found in Volumes 1 to 3 and the translations reprinted in Volume 4 are not limited to Europe. In fact, about 50% of the p. viinational reports and the translations cover non-European countries and most substantive entries include information on non-European jurisdictions. Since the group of authors is likewise not limited to scholars from Europe we decided to simply name the work ‘Encyclopedia of Private International Law’. This is, of course, not to say that the Encyclopedia does not have a focus. In fact, the reader will detect a certain emphasis on Europe with regards both to the authors and the topics covered. However, we felt that this emphasis was justified even in a work with a global perspective: the small scale of state territories in Europe, the intense cross-border exchanges and the distinct characteristics of many European legal systems have enhanced the need for private international law, and the international evolution of the discipline has been driven very much by the resulting European initiatives, in particular by the adoption of the Brussels and Rome Conventions and Regulations.

In order to overcome differences in argument and academic treatment resulting from the authors’ diverse legal backgrounds we tried to harmonize the structure and length of the entries and the style of treatment by editorial guidelines and sample entries. In setting up this framework the editors always had in mind the main objective of any encyclopedia, which is the provision of, and easy access to, information. In addition, the editors set out to account for the fact that the Encyclopedia also serves academic purposes: the entries to be found in Volumes 1 and 2 look at private international law from a comparative perspective. Moreover, the Encyclopdia structures the respective topics in a new way and thereby provides useful insights into their overall design and function. In addition, the national reports to be found in Volume 3 as well as a good part of the translations reprinted in Volume 4 make a large number of national private international law regimes for the first time accessible to a broad audience. By the same token they relate developments on the national level to current trends on the European and the global level.

The publication of the Encyclopedia would not have been possible without the support of many people and institutions: The Fritz Thyssen Foundation provided generous financial support for the editorial work. Marc Dietrich and Rick Sprotte from the University of Jena coordinated the publication process with skill and determination. Regina Franzl, Jakob Horn, Georg Höxter, Pauline Köstner, Sandra Kühn, Jacqueline Päßler and Sebastian Reiche, all from the University of Jena, provided additional and indispensable help in the preparation of the manuscript. James Faulkner undertook the challenging task of reviewing and providing linguistic comments on some 150 contributions and some 30 translations prepared by non-native speakers. Finally, Edward Elgar, notably Luke Adams provided support and encouragement at any time during the publication process. We grasp the occasion to thank all of them. Our deepest gratitude, however, goes to the authors of the entries and national reports as well as the translators. Without their ongoing support and their dedication the Encyclopedia would never have become true.

Jürgen Basedow, Hamburg

Franco Ferrari, New York

Pedro de Miguel Asensio, Madrid

Giesela Rühl, Jena