THIS PAPER IS NOT TO BE REMOVED FROM THE EXAMINATION HALLS

UNIVERSITY OF LONDON LA3014 October

DIPLOMA IN THE COMMON LAW

LLB
BSc DEGREES WITH LAW

Conflict of laws

Monday 17 October 2016: 10.00 – 13.15

Candidates will have THREE HOURS AND FIFTEEN MINUTES in which to

answer the questions.

Candidates should answer FOUR of the following EIGHT questions.

Candidates should answer all parts of a question unless otherwise stated.

Permitted materials
Students are permitted to bring into the examination room the following
specified documents: one copy of each of the following: the Civil Jurisdiction
and Judgements Act 1982, Family Law Act 1986, Contracts (Applicable Law)
Act 1990, Civil Jurisdiction and Judgements Act 1991, Private International
Law (Miscellaneous Provisions) Act 1995 and one copy of the Official Journal
of the European Community of: Council Regulation (EC) No. 44/2001 of 22
December 2000 on Jurisdiction and Recognition and Enforcement of
Judgments in Civil and Commercial Matters, Regulation (EC) No. 864/2007 of
the European Parliament and of the Council of 11 July 2007 on the law
applicable to non-contractual obligations (Rome II), Regulation (EC) No.
593/2008 of the European Parliament and of the Council of 17 June 2008 on
the law applicable to contractual obligations (Rome I), Regulation (EU) No.
1215/2012 of the European Parliament and of the Council of 12 December
2012 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters (recast).

© University of London 2016

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1. Compare and contrast the choice of law rules in torts in the Rome II
Regulation with those found in the Private International Law
(Miscellaneous Provisions) Act 1995.

2. “The notion of habitual residence appears to be emerging as a concept

acceptable to lawyers from both common law and civil law traditions,
as representing a compromise between domicile and nationality, or at
least as a more acceptable connecting factor than domicile to be used
as an alternative to nationality.”

In light of this statement, critically discuss the development of

“habitual residence” as a connecting factor in the conflict of laws in
England.

3. To what extent, if at all, do you agree with the assertion that the coming
into force of the Convention on Jurisdiction and the Enforcement of
Civil and Commercial Matters (the Brussels Convention) has
disadvantaged litigants in the English courts by displacing the simplicity
of the traditional common law rules of jurisdiction?

4. “The English courts have continued to decide cases in accordance with

the former traditions of the Common law and in defiance of the required
spirit of uniform application of this EC legal instrument.”

In the light of the above statement, give a critical account of the

approach of the English courts to the interpretation of Articles 3 and 4
of the Rome Convention.

5. In May 2015, the CJEU delivered its long awaited judgment in

Gazprom OAO v Republic of Lithuania (2015).

(i) Does the judgment in your view bring about clarity on the grant
of anti-suit injunctions under the Brussels I Regulations?

(ii) Was the Advocate General correct in seeking to apply the

Recast Brussels Regulations to a case pending before the
CJEU?

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6. John, domiciled in Scotland, enters into a contract with Chris in London
for the purchase of Chris’ antique piano. Chris claims that it had been
in his family for close to five generations. John, keen on making an
impression on Amelia (his fiancée, and a concert pianist)
purchases the piano as a special birthday present for her. Amelia is
overjoyed to get an antique piano for her birthday and starts to play on
it as soon as it is delivered to her residence in Scotland. Within a few
minutes of playing, one of the keys of the piano pops out and another
gets stuck. It turns out the piano is less than fifty years old. Amelia is of
the view that John was trying to impress her with a cheap/fake piano
purchased from the back of a truck, and does not believe John’s
version of events.

Amelia is very upset and calls off the engagement to John. John is
devastated. He has now managed to track Chris down to Vancouver,
Canada, where he is said to have several business interests.

John is furious and wants to commence proceedings against

Chris in England.

Advise John.

7. Assess the impact of Art 7(1) of the Rome Convention on the Law
Applicable to Contractual Obligations on the principle of party
autonomy and discuss alternative approaches to party autonomy as
adopted by some jurisdictions.

8. Alfred is a UK national who normally lives in England and teaches at a

London university. In September 2013 he takes research leave and
moves to the Netherlands. In December 2013 he travels to Paris to
give a lecture. While there, he is knocked down by a van driven by
another UK national, Ben, who runs a business as a sole trader taking
English produce to Paris and selling it in markets. Alfred returns to
England where he incurs significant medical expenses and
commences proceedings against Ben in the English courts. The
damages payable would be significantly greater under English law than
under French law.

Determine the law which the English courts will apply. Assuming the
claim might still be brought, how, if at all, would your answer differ if the
accident occurred in 2008?

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