Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

Conflict of laws (or private international law) deals with cross-border legal relationships involving private parties. Methods of modern conflict of laws originate in Europe and largely remained intact until today despite modifications brought about by the US Conflicts Revolution. Other parts of the world, that is, Latin America, Asia and Africa, have not been on the centre stage. Even the recent globalisation discourse on legal pluralism and conflict of laws has principally focused on Western, developed countries, although the wave of globalisation affects the entire world. Countries in the Global South have been invisible presumably because, as former colonies, they are not readily accessible, are presumed not to have sophisticated conflicts rules, or are deselected by the choice of forum/arbitration clauses in cross-border business transactions. This chapter will deal with comparative conflict of laws from a non-Western viewpoint. This stance will allow for the relativising of the trends of conflict of laws in Europe and America and shed light on the recent debates on corporate due diligence and Sustainable Development Goals (SDGs) in conflict of laws by considering interests of the most affected and vulnerable people in the Global South. This chapter will also discuss future developments of conflict of laws treaties, which Asian and African countries have rarely joined so far.

The insolvency of a party has considerable effects on all its legal relationships. The restriction imposed by the national insolvency law naturally also affect the ability to pursue claims in arbitration. The entry discusses in its first parts the various types of restrictions contained in the national insolvency laws and their effect on the arbitration agreements, the arbitral tribunals jurisdiction, the arbitration proceedings and the parties involved as well as the underlying policies. In presenting the various approaches adopted, which often differ considerably, exemplary provisions and cases for each approach are presented without focusing on specific jurisdictions. The second part is devoted to the important conflict of laws questions in international cases where the place of arbitration and the place of the insolvency are located in different jurisdictions. They are adressed both from the perspective of the state courts as well as from the perspective of the arbitral tribunal.

This chapter undertakes analysis of the English case law concerned with the jurisdictional preconditions for freezing injunctions in support of English substantive proceedings and analyses the jurisdictional preconditions in support of foreign substantive proceedings. Then it discusses the international scope of Chabra injunctions (freezing injunctions against third parties against whom there is no cause of action). The chapter examines the consistency of the current framework with the international systemic perspective on the purpose of jurisdictional rules. This theoretical perspective requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law.

By their very nature eHealth applications – including telemedicine, AI-based medicine and ‘smart’ medical devices – are ubiquitous: These tools may be used by the physician next door as well as in the most remote locations abroad. Moreover, highly sensitive medical data may flow around the world within a split second. Against this backdrop, eHealth and telemedicine services can be provided from – and the necessary data can be transferred to – virtually every corner of the world. By contrast, the scope of application of regulation relating to AI-driven medicine, as well as eHealth and telemedicine, is usually confined to the legislating state. Moreover, the number and complexity of rules and regulations in this field vary considerably from state to state. Does this mean that international MedTech businesses may simply set up camp in the jurisdiction most favourable to their business models? For practitioners in telemedicine, the MedTech industry providing AI applications or digital medical devices such as eHealth apps, as well as for patients, it is essential to know which laws govern activities undertaken in cross-border scenarios. This concerns licensing requirements and the level of data protection as well as contract and tort law applicable to eHealth, telemedicine and telesurgery services.

H. L. A. Hart famously suggested to understand legal systems as consisting not only of primary rules (rules that require or forbid certain conduct) but also of secondary rules (rules that determine how rules are created, changed and abolished). This is enough for law within one system, but it cannot account for relations between different legal systems. For this purpose, the chapter introduces the concept of tertiary rules that determine a legal system’s relation with another legal system. The most fundamental such tertiary rule is the rule of external recognition – the rule with which a legal system recognizes a foreign law as law. But this is not the only tertiary rule – choice-of-law rules and certain other rules also count as tertiary rules. The chapter demonstrates the empirical and theoretical importance of the concept of tertiary rules and discusses other examples.

An enduring contribution of Jessup’s Transnational Law is his critique of “international law” and his case for a functionalist concept of “transnational law” defined as rules—international, national or private—that offer solutions to transnational problems. Extending Jessup’s argument, this chapter critiques the concept of the “international legal system,” proposes an alternative concept of the “global legal system” and offers an analytical framework for understanding that system. The global legal system consists of not only rules, but also courts and other institutions, that provide legal solutions to transnational problems. These institutions are national, international, private and sometimes hybrid. Among the solutions provided are three generic governance functions: prescription, adjudication and enforcement. More than one institution may provide solutions to a given transnational problem, creating a need for choice across three dimensions: national-national, national-international and public-private. The global legal system uses three types of principles to guide these choices: principles of authority, allocation and party autonomy. This chapter’s concept of a global legal system aims to provide a coherent way of thinking about the multiple transnational problem-solving functions of legal systems and the multiple levels at which those functions are performed.

Karen Knop takes up the question ‘[h]ow do we study doorways and the constitution?’ and offers an answer in a deliberately ‘explanatory and experimental vein’. Her contribution focuses on the curious introduction, by the Supreme Court of Canada, of ‘comity’ as a principle of interpretation for the Canadian Charter of Rights and Freedoms. Curious, because, as Knop writes, while the ‘constitutionalization of comity is familiar’, notably in the area of private international law, ‘the “comitization” of the Constitution is not’. Knop analyzes four leading decisions by the Supreme Court of Canada, each of which figured ‘something(s) called “comity”’ as ‘a way in which the existence of, dependence on and regard for the Other figure in the constitution’. Using these four cases, Knop is able to elaborate a history of ‘cosmopolitanism introduced into the Constitution by comity’, that both reaches further back and is richer – in including also private legal relations – than familiar accounts of the post-Second World War emergence of international human rights regimes in public international law.

Jacco Bomhoff is principally concerned with the character of constitutionally salient boundaries. In its first part, this chapter explores the contrast between, on the one hand, recognition of the legally mediated character of borders and jurisdictional boundaries in critical scholarship, and, on the other hand, unquestioning determinations of ‘inside’ and ‘outside’ in judicial practice. The second part of this chapter, then, approaches the question of the character and effects of constitutional boundaries by way of a case study on mobility. Mobility, in its many different forms – its restriction and its excesses, for individuals and for corporations – lies at the heart of many pressing contemporary challenges. The legal treatment of mobility, however, is fragmented across many different specialised fields – from immigration law, to tax law, to international arbitration – in which constitutionalist concerns are rarely central. The chapter aims to address this lacuna by sketching the contours of an ‘outward-facing constitutionalism’ which could provide the conceptual and normative means to scrutinise the constitutional implications of the regulation of ‘access’ and ‘exit’ for both individuals and corporate actors.