Richard Fentiman, INTERNATIONAL COMMERCIAL LITIGATION Oxford: Oxford University Press (www.oup.co.uk ), Oxford Private International Law Series, 2010. lxiii + 766 pp. ISBN 9780199265435. £175.

AuthorJaneen M Carruthers
Published date01 May 2011
Date01 May 2011
DOI10.3366/elr.2011.0043
Pages323-325

Readers of books about private international law will be familiar with the traditional manner of arrangement of the rules and principles which comprise this area of law. Just as all Gaul was divided into three parts, so too expositions of private international law customarily deal with, in turn, the constituent elements of jurisdiction, choice of law, and judgment enforcement. In this impressive new addition to the Oxford Private International Law series, Richard Fentiman has chosen to move away from the conventional framework (if not from the traditional topics), examining the subject of international commercial litigation in a more holistic fashion, through the prism of risk. In viewing the subject from this perspective, and in making a “cradle to grave” risk assessment of commercial transactions, the author displays his immense academic and practical expertise, and provides important and original insights.

The author's opening premise is that commercial activity depends on the assessment and management of risk: financial risk (a contracting party's credit-worthiness or solvency) and legal risk (the effectiveness of transactions, available remedies in the event of default, and the enforcement of remedies). In multistate cases, legal risk tends to be higher, and presents in two particular guises: transaction risk (the risk that the parties' expectations will be defeated by application of a law which does not give effect to the object of the transaction) and litigation risk (the risk to a claimant that he may be required to resort to litigation to vindicate his rights, and the risk to a defendant that he may be required to defend proceedings).

Under the heading of litigation risk – which the author perceives to be the primary threat to a commercial transaction – the subjects of venue risk (issues pertaining to jurisdiction) and enforcement risk (judgment enforcement) are examined. The main jurisdictional risk to any commercial party is the risk that a dispute arising will not be resolved in his preferred forum, or worse, in an unfavourable forum (one aspect of the uncongeniality thereof being that its choice of law regime heightens transaction risk). Against this hazard, the author considers the role and validity of jurisdiction agreements and the danger posed by (negative) pre-emptive proceedings which are capable of undermining the effectiveness of such agreements, and he proposes strategies which may be employed to manage the risk of the pre-emptive...

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