The Applicable Law in Contract and Tort - Chapter 3.1 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
The jurisdictional issue usually presents itself as the first problem in Jurisdiction 1st transnational problem a transnational kind of case. The jurisdiction problem is sometimes described as ‘pre-judicial’ in the sense that a court cannot proceed to resolve the merits of a dispute before it determines whether it is competent to enter a binding judgment.
The second main question to be resolved in a transnational case will Choice of procedural law & lex fori usually be the choice of the applicable law.1 Technically speaking, this chronology is not quite correct, for even the jurisdictional issue must be resolved on the basis of a given set of rules; (i.e.) even the selection of a jurisdictional base requires a prior ‘choice’ of the applicable procedural code. But because national courts invariably apply their own procedural rules (lex fori)2 to resolve the question of extraterritorial jurisdiction, such questions of competency seem hardly likely to involve a true ‘conflict of laws.’
3.1 General Introduction