Alex Mills

Cheshire, North and Fawcett: Private International Law

PART I: INTRODUCTION PART II: PRELIMINARY TOPICS PART III: JURISDICTION, FOREIGN JUDGMENTS AND AWARDS PART IV: THE LAW OF OBLIGATIONS PART V: FAMILY LAW PART VI: THE LAW OF PROPERTY

The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?

In the past decade, social media platforms such as Facebook and Twitter have gone from being a novelty to becoming an essential part of many peoples personal and professional lives. Like previous changes in communications technology, social media poses a legal challenge. Can existing laws be applied or adapted to this new context, or does it pose new problems requiring new solutions? This article examines one aspect of this question through an analysis of the private international law issue of what law applies (or should be applied) to cross-border defamation claims on social media. Cross-border defamation raises a range of issues, including private international law questions regarding which courts should adjudicate claims and which substantive law should be applied. While the jurisdictional issues are important and have a significant impact on the issues of applicable law, there are distinct questions and concerns raised by the choice of law question for cross-border defamation on social media. Indeed, it is a topic which perhaps raises some of the most difficult issues in private international law, as well as having important broader consequences for media law and free speech regulation. At a general level, it concerns choice of law in defamation, which has proven a particularly challenging subject in practice and in proposed law reforms – at present it remains excluded from both UK and EU statutory rules concerning choice of law in tort. More specifically, it concerns defamation online, a context which might be grounds for suggesting that a further specialised rule is required – a view taken by the ECJ in relation to jurisdiction over online defamation. And finally, it concerns defamation online on social media, which raises challenging issues in terms of adapting the law to new media contexts, as well as identifying the relevant ‘public’ within which a reputation is established. These are not just difficult practical questions, arising with increasing frequency in litigation, but also problems of principle which have broader implications. As social media become increasingly important modes of socialisation and communication, greater attention will need to be paid to the question of whose law governs standards of free speech on social media platforms – an important part of the question of whose law rules ‘Facebookistan’.

The Public-Private Dualities of International Investment Law and Arbitration

In recent years, the thousands of international investment treaties have given rise to hundreds of investor-state arbitrations. International investment law has thus become a topic of great practical importance, and one which has received significant attention in both arbitral awards and academic literature. It is, however, a subject which appears to possess inherent ‘dualities’ – analogous to an optical illusion, a single image or object which may appear strikingly different to different viewers or from different perspectives. The dualities of international investment law are presented in some of the most fundamental questions concerning its nature and purpose. This chapter explores the ideas or influences which lead analysis of the subject in conflicting directions and invite these seemingly contradictory viewpoints, by focusing on the ‘public-private’ distinctions or conceptions which lie at its contested foundations. These public-private dualities thus form a kind of conceptual lens through which international investment law may be viewed, and through which its different appearances or representations can be examined.

T.M.C. Asser and public and private international law: The life and legacy of ‘a practical legal statesman’

This contribution commemorates the award of the tenth ever Nobel Peace Prize to Tobias Michael Carel Asser on 10 December 1911, and examines his life and his lasting contribution to scholarship and practice in private and public international law. After a biographical sketch, it considers the scholarship of TMC Asser, including his part in the foundation of the Revue de droit international et de legislation comparee, and his international institution-building, particularly his role in the foundation of the Institut de droit international, the International Law Association, the ‘Hague Conferences on International Private Law’ (which ultimately became the international institution of the Hague Conference on Private International Law), the Permanent Court of Arbitration, and the Hague Academy of International Law. It also explores his legal and diplomatic practice, for example his important role as a Dutch delegate at the 1899 and 1907 Hague Peace Conferences. The article concludes with a reflection on Asser’s contribution to public and private international law, and concludes that while he was no doubt a very talented scholar, it was the combination of this with his skills and initiative as a negotiator, diplomat and international institution builder which secured his reputation and his legacy.