In December 2012, the European Parliament supported the creation of a European patent with unitary effect. For the next year at least, the international patent community will be on the edge of its proverbial seat, waiting to see whether the proposal becomes a reality. If it does, it will be a significant event in both the long and rich history of patent law, and in the equally rich and understudied history of attempts to create a European patent system. In this article I consider the three post-war European patent initiatives of the most direct and enduring relevance in that regard with a view to answering the following questions. First, what drove them? Second, what issues confronted them? And third, how were those issues resolved and with what ultimate effect? In the concluding section I relate the discussion back to the present by offering some remarks on the current European patent proposal in light of the same.

On 17 March 2011 the UN Security Council adopted Resolution 1973 authorizing member states to take forceful measures to protect Libyan civilians. Clearly NATO actions to protect civilians were within the mandate. But the authors claim that operations aiming at overthrowing the Qaddafi regime were illegal use of force. The overstepping of the mandate may have a negative effect on the credibility of the responsibility to protect in future gross human rights violations.

This article investigates what effects a recognized foreign judgment in civil and commercial matters has in English proceedings. Does the judgment have the effects that it has in the foreign country (extension of effects) or the effects that a comparable English judgment would have (equalization of effects), or a combination of these? After a review of the current law, it will be discussed what approach is preferable on principle. The suggested approach will then be illustrated by considering whether a foreign decision on one legal basis of a certain claim ought to preclude English proceedings involving another legal basis of the same claim. Finally, it will be discussed whether and how the effects of a recognized foreign judgment in England are affected by interests of a third country.

English private international law generally gives a potential role, where appropriate, to foreign law, by allowing for the application of choice of law rules to determine its relevance. Yet in the context of anti-suit injunctions granted otherwise than in aid of a contractual right not to be sued, choice of law is conspicuously absent. In those cases, courts simply apply the lex fori without paying any regard to foreign law, although the notion of comity is taken into account in the final decision on whether to grant anti-suit relief. Clearer identification of the grounds for granting such relief should limit application of the lex fori to instances where the anti-suit injunction serves as a form of ancillary relief to protect the judicial processes of the forum, and in which comity plays no role. In all other cases, which ultimately concern private justice between the parties, comity is best understood as an expression of justice in cases involving foreign elements, and better reflected through choice of law rules, which might lead to the application of foreign law. This approach is preferable to invoking comity as a consideration relating to the manner in which the court regulates the grant of anti-suit relief, because courts tend to bestow rights, which parties may not otherwise have, under the cloak of comity. Understanding comity as the catalyst for taking account of foreign law assuages concerns about interfering with foreign courts, acts as a deterrent to remedy shopping, and provides greater certainty as regards the vindication of rights. The case for widening the application of choice of law in this context does not depend on Rome II, but if the principle is accepted, courts must follow the process which it specifies.

This article analyses the relationship of the proposed Common European Sales Law (CESL) and the rules on mandatory and overriding provisions in private international law. The author argues that the CESL will not achieve its stated aim of taking precedence over these provisions of national law and therefore not lead to an increase in cross-border trade. It is pointed out how slight changes in drafting can overcome the collision with mandatory provisions. The clash with overriding mandatory provisions, the author argues, should be taken as an opportunity to rethink the definition of these provisions.

On 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence [2012] UKSC 48. The case concerns an application for habeas corpus brought by a citizen of Pakistan originally detained by the United Kingdom in Iraq before being transferred into the custody of the United States. Rahmatullah addresses important issues concerning the extraterritorial reach of habeas corpus under English law in respect of persons held in the custody of a foreign State, as well as the international rule of law. The case may be considered a legal victory for persons detained without trial by the US in facilities thought to be beyond the reach of the courts. However, in reality any strength in the arm of the law is drained by the priority given to the conduct of foreign affairs, ‘forbidden territory’ for the courts, over the Court's ruling and the UK's obligations under international law. The case is examined in the light of similar jurisprudence from US and Australian courts.

In Case C–384/10 Jan Voogsgeerd v Navimer SA the ECJ dealt with a number of issues concerning the choice-of-law rules for employment contracts of the Rome Convention, most importantly the relationship between the connecting factors of the habitual place of work and the engaging place of business, and the interpretation of the latter connecting factor. After demonstrating that the ECJ has deprived it of almost any effect, that it leads to excessive legal uncertainty, unforeseeability of the outcome of litigation, and does not support the objectives of employee protection and proximity, this article concludes that the connecting factor of the engaging place of business should be abolished in European private international law.

On 5 July 2012, the CJEU rendered a ruling in Erste/BCL on the temporal application of the Insolvency Regulation in Member States that joined the EU after the Regulation's initial entry into force on 31 May 2002 (new Member States).1 The uncertainties of interpretation concerned ‘cross-date’ proceedings; that is, when the insolvency proceeding was launched before the accession of the (new) Member State but after the Regulation's original entry into force (in the old Member States) and remained pending also after the accession. Taking into account that 44.4 per cent of the Member States joined the EU after the Insolvency Regulation's entry into force (12 out of 27 Member States),2 the ruling has an enormous practical and economic relevance, which will be refreshed following the accession of Croatia.3

Some five years on from the Autumn 2008 collapse of Lehmans, the regulatory dust from the Global Financial Crisis has settled. Significant regulatory policy debates are still underway internationally, notably with respect to the treatment of shadow banking.1 But the main contours of the crisis-era regulatory landscape are now clear. Internationally, most major economies, including the EU, have implemented the G20 reform agenda, set out initially in the 2008 Washington Declaration,2 and covering, inter alia: bank capital, liquidity and leverage; hedge funds; rating agencies; and the over-the-counter (OTC) derivatives markets. That major regulatory change would have followed the financial crisis is not, of course, a surprise.3 Observation of responses to major financial crises over the years from the 1929 Crash to the ‘dotcom bubble’ era and beyond4 makes clear that what Professor Coffee has vividly described as the ‘regulatory sine curve’5 leads to a regulatory boom after financial market bust.

The vexed question of State immunity and the extent and application thereof has once again found its way to the International Court of Justice (the Court) in the form of the Case Concerning Jurisdictional Immunities of the State (Germany v Italy).1 On this occasion, the precise question concerned the so-called ‘territorial tort exception’ to State immunity and involved an assessment of the immunity to be granted to Germany, by Italy, in relation to compensation claims brought in Italy by Italian claimants against German armed forces and the organs of the German Reich during the Second World War.2

Following on from its judgment in Akzo Nobel,1 the Court of Justice of the European Union (CJEU) on 6 September 2012 delivered its judgment in Prezes.2Prezes expanded the decision in Akzo Nobel, which held that communications between a client and its in-house legal counsel were not protected by legal privilege because the latter are not considered sufficiently independent from the former. Taking this holding one step further, the CJEU in Prezes held not only that corporations are unable to benefit from legal privilege regarding communications with their in-house counsel, but also that any lawyer in an employment relationship with its client is disqualified from representing their client before the CJEU. This article criticizes this holding and argues that the CJEU's interpretation of independence does two things: (1) unreasonably expands the scope of Akzo Nobel to include the representation of in-house counsel in all cases; and (2) does so in a way which is inconsistent in light of similar concerns of the independence of government lawyers, who seemingly maintain their right of privilege under the judgment.

In Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.

The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.

In the three years since last surveyed in the Quarterly,1 EU environmental law has continued to justify its reputation as one of the most fast-moving fields of EU law, with a large number of highly significant legislative and jurisprudential developments. This review selects some of the most important areas of development in the field in recent years: in particular, the EU's new environmental action programme for 2013–20, EU climate and energy law, environmental governance and enforcement, and integration of environmental concerns into other EU policy areas.

On 23 September 2011, Mahmoud Abbas, in his capacity as the Chairman of the Executive Committee of the Palestine Liberation Organization and President of the State of Palestine, applied for full membership of the United Nations (UN) on behalf of the State of Palestine. In his letter of application (addressed to the UN Secretary-General Ban Ki Moon), Mr Abbas made reference to section F of the Plan of Partition in UN General Assembly Resolution 181(II) of 29 November 1947 (where sympathetic consideration of the application for membership of the UN of both the Arab and Jewish States was urged) as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly (GA) of this Declaration in Resolution 43/177 of 15 December 1988.1

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

International lawyers interested in international investment law and treaty interpretation issues should consider the international award recently delivered by an ICSID Tribunal in the case of Spyridon Roussalis v Romania.1 The case arose out of the privatization of a Romanian warehouse company (SC Malimp SA). On 23 October 1998, another Romanian company (Continent SRL) entered into a share purchase agreement with the Romanian authority for state assets recovery (AVAS) to purchase 372,523 shares in SC Malimp SA, or the equivalent of a 70 per cent interest in the company. Following the acquisition of SC Malimp SA, the name of that company was changed to SC Continent Marine Enterprise SA (or ‘Continent SA’ for short).