Hostname: page-component-745bb68f8f-f46jp Total loading time: 0 Render date: 2025-02-11T07:01:36.857Z Has data issue: false hasContentIssue false

Australian Private International Law for the 21st Century: Facing Outwards by Andrew Dickinson, Mary Keyes and Thomas John [Hart Publishing, Oxford, 2014, 354pp, ISBN 978-1-84946-625-7, £50.00 (h/bk)]

Published online by Cambridge University Press:  13 June 2016

Johannes Landbrecht*
Affiliation:
Dr iur, Rechtsanwalt (Germany) & Barrister (Lincoln's Inn), LALIVE, Geneva, johannes.landbrecht@gmx.de.
Rights & Permissions [Opens in a new window]

Abstract

Type
Book Reviews
Copyright
Copyright © British Institute of International and Comparative Law 2016 

Globalization has led to a vast increase in transactions with transnational legal implications and, in turn, to a global market for legal services. Entire States have realised the latter's economic potential, Australia being one of the more recent converts to this business development strategy. In this context, ‘Australian Private International Law for the 21st Century’, edited by Dickinson, Keyes and John, explores actions that might be required to improve Australia's competitiveness in this legal services market.

Roger Wilkins and Thomas John (in Chapter 1, ‘Facing Outwards: Australian Private International Law in the 21st Century’) describe the wider context of the endeavour to modernise Australian private international law. They conclude, convincingly, that any reform aiming at establishing Australia ‘as a successful player in the regional and global market for commercial transactions’ (p 6) would have to take into account that such international commercial law is a ‘complex bundle of closely related and interwoven subject-matters’ (p 6): contract law (and relevant areas of substantive law such as finance and insurance), private international law, civil procedure rules, and arbitration law.

Mary Keyes introduces Chapter 2 (‘Improving Australian Private International Law’) with an overview of the currently applicable Australian rules on jurisdiction and judgments as well as the choice of law rules regarding contract, tort and family law. She goes on to discuss how Australian law could be reformed. Keyes thereby provides a thorough and easily accessible introduction to Australian private international law.

In Chapter 3 (‘Incoherence in Australian Private International Laws’), James Allsop and Daniel Ward describe current sources of incoherence in Australian private international law, thereby carefully identifying areas where reform seems particularly pressing.

Andrew Bell focuses (in Chapter 4, ‘Rationalisation and Rationale: Approaching the Reform of Rules for the Assertion of Jurisdiction over Foreign Defendants’) on the ‘pressing need of reform’ (p 68) to the principles governing personal jurisdiction over foreign defendants, and looks to Canada for inspiration with regard to possible solutions (pp 73ff). Bell's contribution leaves little doubt that such ‘need’ for reform indeed exists.

In Chapter 5 (‘Uniformity of Outcome in Australian Choice of Law’), Richard Garnett discusses the extent to which uniformity of outcome was, and is, achieved under Australian private international law rules. Garnett contrasts the Australian experience with developments in the USA (pp 107–8) and the European Union (p 109).

Chapter 6 (‘Together Alone: Integrating the Tasman World’) by Reid Mortensen and Chapter 7 (‘Trans-Tasman Court Proceedings and Regulatory Enforcement’) by David Goddard are dedicated to the Trans-Tasman Judicial Area and the legal integration of Australia and New Zealand in general.

Chapter 8 (‘What, if Anything, can Australia Learn from the EU Experience?’) by Andrew Dickinson and Chapter 9 (‘A View from Australia's Regional Partners—Recent Developments in New Zealand and Singapore’) by Elsabe Schoeman and Adeline Chong provide yet more detailed insights into three specific overseas jurisdictions. The authors provide very revealing comparative perspectives.

Overall, the book leaves the reader with many positive impressions. To name but a few: The contributors describe with clarity the current state of affairs in Australian private international law. Therefore, whoever needs a thorough overview and more than superficial introduction to Australian private international law, whether as a practitioner or academic, will be well served by this collection of essays. The contributors also thoroughly investigate the state of affairs abroad and demonstrate that they are indeed open to foreign influences, albeit never uncritical. Indeed, the extent to which one learns from other systems not only depends on what these systems have to offer, but, more importantly, on how carefully one is prepared to analyse them. Furthermore, the book never leaves the reader with the impression that it is the work of academic busybodies, discussing change and reform for change and reform's sake. Quite to the contrary, the contributors demonstrate their sense of practicality, also taking into account the economic context.

As a result, the book provides a very valuable contribution to the discussion about how to improve Australia's competitiveness in the legal services market. Notwithstanding, there appear to be in particular three areas that may warrant a yet more detailed analysis in a subsequent publication:

First, considering the business opportunities involved, Australia should not neglect the potential of attracting clients from civil law countries, as some of Australia's main trading partners belong to the civil law tradition (China, Japan, and South Korea) (p 12). For instance, a more detailed analysis of the Swiss legal system—which some contributors already discuss—might prove particularly fruitful, Switzerland being very successful in the international dispute resolution market (with Zurich and Geneva among the world's leading arbitration centres) and Swiss law being the law of choice in many cross-border transactions.

Secondly, the promotion of Australian law might benefit from using English law as a benchmark in communication, contrasting the Australian position clearly with the English approach, which would make Australian law more accessible to users from around the globe. A similar promotion strategy is used, for example, in Singapore, where the new Singapore International Commercial Court (SICC) is modelled on, and readily compared to, the Commercial Court in London. All contributors refer to English law, but often in a cursory fashion.

Thirdly, a ‘familiar’ legal system is but one consideration. Users also need a reliable framework to put this system into play if needed. This calls mainly for certain, ie, predictable, jurisdiction rules. Two aspects of the Australian jurisdiction rules seem particularly uncertain, thereby jeopardizing Australia's competitiveness in the international legal services market: the concept of personal jurisdiction based on service rules and the forum non conveniens approach. The contributors correctly identify and analyse these concerns. Yet, it may be worthwhile going one step further and exploring whether these concepts remain at all appropriate in the twenty-first century.

In conclusion, the author of the present remarks is very much looking forward to reading, once the reform process has been (hopefully) further advanced, an update on Australian private international law by the learned contributors to Dickinson, Keyes and John.