The position that private international law occupies in the Canadian constitutional framework is complex and evolving. Essentially, private international law is part of provincial law, which appears most clearly in the difference between the private international law of Quebec and that of the other provinces. But its location in the provincial sphere does not mean that provinces have unrestricted power to legislate with respect to the private international law applied in their courts. The ability to adopt rules with respect to jurisdiction, foreign judgments and choice of law are subject to increasing, albeit still vague, constitutional constraints. The Morguard case has probably set the direction for future development of the constitutional aspects of jurisdiction and foreign judgments, although it has not settled them definitively in any way. So far as choice of law is concerned the only relevant jurisprudence, which deals with when the subject matter of legislation can be said to be ‘in the province’, is highly unsatisfactory.

Discovery is the broad name for interlocutory skirmishing whose object is to secure information concerning the particular case at issue. While documentary and oral discovery concurrently exist as of right in other jurisdictions, such as Canada and the US, the scope of this pre-trial procedure is narrower in Britain where the general availability of oral interrogatories is precluded. Like discovery in England and Wales, Scots law farmer restricts the procedure by making the ‘Specification of Documents procedure’ subject to the Court's discretion. This article explores some of the differences from a comparative viewpoint and attempts to evaluate the Scottish practice.

What immediately strikes the eye of a modem Huber reader is his clear perception of the realities and social and political issues perennially implicated by choice-of-law and the candid mirroring of such issues and realities in his proposed principles and rules. Huber ‘…posed in stark simplicity the basic dilemma of conflicts law in modern times to mediate between the pretensions of territorial sovereignty and the needs of international commerce’. This accounts for the seemingly everlasting freshness and relevance of Huber's writings.

It so happens that this is the 25th anniversary of the adoption of the Treaty on Legal Principles Governing die Activities of States in die Exploration and Use of Outer Space including die Moon and other Celestial Bodies. On 19 December 1966 die General Assembly of die United Nations unanimously adopted a resolution commending the Treaty; on 27 January 1967 the Treaty was signed simultaneously in Moscow, London and Washington. As one who presided over die work of die Legal Sub-Committee leading to die conclusion of that Treaty it may be timely for me to recall some of the events and developments preceding its adoption.

The ‘Westphalian’ system existed in a disguised form in Europe before the Thirty Years War. It threw off the disguise in the late sixteenth century and revealed underlying discrete ‘municipal’ legal orders. By the mid-seventeenth century this ‘Westphalian model’ was widely perceived and accepted as a useful basis for political thought.

In this article the concept of dwaling will be examined in comparison with the English doctrine of misrepresentation. Dwaling — like misrepresentation — plays a role in the formation of the contract and concerns the intention of the parties to create legal relations. The concept of dwaling under Dutch law has been developed from a traditional ‘defect of the will’, a ‘vice of consent’ where the main emphasis is on the error of the mistaken party, to a legal concept with the emphasis on the false precontractual statement of fact made by the other party or his failure to disclose information. This evolution of dwaling through the years may be traced in s. 6:228 of the new Civil Code (CC) which came into force on 1 January 1992.

“The ordinary jus gentium is only a particular law, applicable to a distinct set or family of nations, varying at different times with the change in religion, manners, government, and other institutions, among every class of nations. Hence the international law of the civilized, Christian nations of Europe and America, is one thing; and that which governs the intercourse of the Mohammedan nations of the East with each other, and with Christians, is another and a very different thing. The international law of Christendom began to be fixed about the time of Grotius, when the combined influence of religion, chivalry, the feudal system, and commercial and literary intercourse, had blended together the nations of Europe into one great family. This law does not merely consist of the principles of natural justice applied to the conduct of states considered as moral beings. It may, indeed, have a remote foundation of this sort; but the immediate visible basis on which the public law of Europe, and of the American nations which have sprung from the European stock, has been erected, are the customs, usages, and conventions observed by that portion of the human race in their mutual intercourse”.

Scholars of comparative law of all periods, and especially Rabel and Rene David, have drawn attention to the interesting relationship between legal systems, so that however diverse they may be, none is absolutely original and free of influences, which are reciprocal, necessary and enriching.

The Charter of the Organization of American States, approved in 1948, assigned to the Inter-American Council of Jurists, among other functions, the task of promoting ‘the development and the codification of international law’ (Article 67). Therefore, on September 6, 1949, the Inter-American Juridical Committee, which was the Permanent Commission of the Council (Article 68), presented a Report that favoured the revision of the Bustamante Code, taking into account the Montevideo Treaties and the American Restatement of Conflict of Laws.

The Latin American countries have played a very important and constructive role in the development of the modern law of the sea. They participated actively and positively in the preparation of all the parts of the United Nations Convention on the Law of the Sea, that was open for signature in Montego Bay, Jamaica, on 10 December 1982, but their most important contributions are related to two specific areas which happen to be the most innovative parts of the Convention: the new concept of the exclusive economic zone (Part V) and the régime of the sea-bed and ocean floor beyond the limits of national jurisdiction (Part XI). In order to appreciate the importance of these developments, one has to bear in mind that the creation of the exclusive economic zone concept was part of a larger package deal which included the precise determination of the maximum breadth of the territorial sea, the special régime for straits used for international navigation and the special régime for archipelagic States. Likewise the new concepts of the exclusive economic zone and the international area of the sea-bed and ocean floor required a more precise determination of the outer limit of the continental shelf. These innovations thus had a major impact on most if not on all parts of the convention.

The doctrine of immunity of States has always had the interest of Bert Voskuil. The question whether a foreign State may be summoned before a national court has been raised and answered by him in numerous essays. Therefore, a study of the question how to summon a foreign State before the national judiciary is not out of place in a collection of essays on international procedural law, dedicated to Bert Voskuil.

The publication of the arbitral award in the Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka case serves as a forceful reminder that long after individual confrontations in the Sri Lankan civil war are removed from the headlines, the personal, legal and financial consequences of mat country's tragedy shall continue to bedevil the society. In this case, AAPL, formerly a foreign investor in Sri Lanka, claimed damages against the Government for destruction of property arising out of military operations undertaken by official security forces. The Tribunal, by a majority, found in favour of the claimant, but did so only after a fairly lengthy review both of canons of treaty interpretation in international law and of principles of State responsibility for actions undertaken during civil unrest More specifically, because the proceedings were instituted under the United Kingdom/Sri Lanka Bilateral Investment Treaty of 1980, the primary focus of the Tribunal's attention concerned the applicability of particular provisions of mat treaty to circumstances of military and paramilitary activity; at the same time, the military background to the case also prompted the Tribunal to give broad consideration to the standard of diligence owed by government forces to foreign investors under general international law.

Traditionally, Latin American countries have put emphasis in their foreign policy on principles such as national sovereignty, territorial integrity and nonintervention as well as on the primacy of national law and domestic courts. In their relations with Europe and the United States this policy served as a political and legal shield for defending their political and economic independence and their freedom to regulate their own affairs. With respect to the particular issue of foreign investment regulation, it served as the legal foundation for an attempt to subject foreign investors exclusively to the national law and the jurisdiction of the courts of the country in which they invest or operate. Thus, each Latin American country sought to equate foreign investors and its own nationals for the purpose of investment regulation. Therefore, this policy is also called the ‘national standard’. It is closely associated with the name of the nineteenth-century Argentinian lawyer, Carlos Calvo.

Recently, Bert Voskuil involved the Asser Institute and, in particular, its Department of International Commercial Arbitration in his keen interest in exploring ways and means of improving the functioning of the Permanent Court of Arbitration (‘PCA’) and of making it more attractive to parties to disputes. One cannot but approve this initiative as it is regrettable that the PCA is under-utilized whilst it has every potential in it to be a prominent forum for international arbitration.

The great increase in criminal activity at the international level, propelled, essentially, by the growth of international narcotic trafficking, has motivated an improvement in international legal cooperation.

The movement for development of private international law in the Americas through multilateral conventions (which is referred to below as the Inter-American Conventional Movement) began in 1878; and the great influence which the European school of legal thought has exerted on it can be perceived throughout its history. It was in the Americas that one of the decisive steps in the world-wide trend towards the development of private international law through conventions took place, and it is there that the considerable influence of the Hague Conference on this subject can be traced to its origin. Legal thought on a global scale is becoming universal and thus the ideas of the Dutch scholar Jitta, expressed at the end of the last century, that the State must respect the individuals forming part of a universal society and that to achieve this end, the State itself must find homogeneous solutions through treaties, are now a reality. In order to try to give an overall view of this movement in private international law in the Americas, section 2 will deal briefly with the development of the three historical stages, which, in my opinion, are the most significant, after which section 3 will deal with the fourth or current stage, following which section 4 will end with some brief concluding remarks.